SETHMAL AND COMPANY Vs. LAXMI PARADISE LEELA MAHAL

JUDGEMENT

(1.) These two appeals arise out of the judgments and decrees passed by the learned Additional Subordinate Judge, Tirupathi, dated 31-08-1988 passed in OS No. 173 of 1984 and 207 of 1984 respectively.

(2.) One Mr. W.S. Sitaram, the Power of Attorney holder and the agent of the plaintiffs in the above suits filed and prosecuted the suits as against M/s Sri Laxmi Paradise (Leela Mahal), a partnership concern, and its partners the common defendants. The plaintiffs are the money lenders at Madras. The defendants for the purpose of construction of the 1st defendant theatre approached the plaintiffs on 9-11-1981 for a loan at Madras. The plaintiffs ultimately agreed to advance loans on short term basis on Hundis with interest at 2.5% per month as per the custom of lending loans at Madras. The defendants had borrowed various amounts on various dates under different Hundis. The 2nd defendant on behalf of the firm deposited the title deeds with the plaintiffs and created an equitable mortgage in favour of the plaintiffs separately, as a security for the due repayment of the loan. As the defendants failed to repay the loan amounts despite several demands, the plaintiffs got issued registered notices through its advocate and also through its agent the said W.S, Sitaram and ultimately filed the above suits. According to the plaintiffs, the defendants are not agriculturists, therefore, they are not entitled to the benefits of Act 4 of 193 8 and Act 7 of 1977. The plea of the defendants in both the suits among various other contentions is that every subsequent Hundi was in respect of the original first transaction and whenever a renewal was made the previous one was not closed and the amount due under the first Hundi was also being added in the renewal documents, and therefore, the defendants are not liable to pay all the amounts mentioned in the plaints and are liable to pay only under the first transaction with reasonable interest at 12% per annum. The defendants denied of having created equitable mortgages.

(3.) The following identical issues have been framed in both the suits basing upon the respective pleadings.