DARA NAMASSIVAYA Vs. VETURI RATNALAMMA

JUDGEMENT

(1.) Heard Sri K.V. Satyanarayana, the learned Senior Counsel representing Smt. Bhaskara Laxmi, the Counsel for the appellants-defendants and Sri V. V.L.N. Sarma, the Counsel representing the respondent-plaintiff.

(2.) Sri Satyanarayana, the learned Senior Counsel had taken this Court through the recitals of Ex.A.1 and would contend that the said document does not specify carrying of any interest. The learned Counsel also would maintain that Ex.A.2, being an un-registered agreement, is inadmissible and even otherwise, the same was not acted upon. The learned Counsel also would contend that this cannot be treated as contemporaneous agreement. In the case of breach regarding possession, the mortgagee may have to file a suit under Section 68(1)(d) of the Transfer of Property Act, 1882 (hereinafter, in short, referred to as 'the Act' for the purpose of convenience). The learned Counsel also would submit that the suit for recovery of money is barred by time and had referred to Articles 63 and 113 of the Limitation Act, 1963. The learned Counsel also would contend that the Court has no power to grant interest prior to the suit. The learned Counsel also would contend that the question of interest in relation to a mortgage transaction would be governed by Order 34 Rule 11 C.P.C., (hereinafter referred to as 'Code' for the purpose of convenience). The learned Counsel also would contend that even on comparison of signatures in Ex.B.1 and the Vakalath definitely it cannot be said that Ex.B.1 is a brought-up document and hence, the findings recorded by the Trial Court cannot be sustained in this regard. The learned Counsel also would maintain that the interest at 30% in the facts and circumstances is usurious in nature and normally interest beyond 12% may have to be presumed to be usurious and hence, just and reasonable interest may have to be fixed exercising the discretion in proper perspective. The learned Counsel also placed reliance on certain decisions to substantiate his contentions.

(3.) Per contra, Sri V.V.L.N. Sarma, the learned Counsel representing respondent-plaintiff had taken this Court through the recitals of Ex.A.1 and would submit that Ex.A.1 to be read along with Ex.A.2. The learned Counsel also would submit that there is no denial in relation to Ex.A.2 and hence, the question of admissibility or inadmissibility of the same may not be of any serious concern. The learned Counsel also pointed out that D.W.1-the son was examined and the father was not examined. The learned Counsel also made elaborate submissions in relation to Ex.B.1 and had taken this Court through the findings recorded by the learned Judge in relation to the discharge and would comment that since the reasons recorded are just and proper, the said findings are to be confirmed. The learned Counsel also pointed out that the conduct of the appellant-defendants also may have to be taken into consideration. Ex.B.1 was not filed along with written statement and at a belated stage, an attempt was made to take the document to an expert and these aspects would go to show that Ex.B.1 cannot be believed. The learned Counsel also commented that the plea that the interest is of usurious nature had not been taken and no evidence was let-in in this regard and hence, the same need not be considered by this Appellate Court in the light of the findings recorded by the Trial Court in this regard.