GIRDHARI LAL KHANNA Vs. BAL KISHAN KHULLAR

JUDGEMENT

(1.) This is defendant's appeal against whom a preliminary decree for the recovery of Rs. 35853/- by sale of the mortgaged property has been passed by the trial Court.

(2.) Plaintiff-respondent Bal Krishan filed the present suit for the recovery of Rs. 35853/- alleging that the defendant Girdhari Lal Khanna mortgaged his Kothi with the plaintiff on 12-2-1972 in the sum of Rs. 32,000/-. Although the rate of interest was settled at 12% per annum yet the plaintiff claimed interest at 71/2 per annum. In this way Rs. 32,000/- has been claimed as principal and Rs. 3849/- as interest and Rs. 4/- as notice charges. The mortgage was without possession. It was stated by the plaintiff that the amount of Rs. 32000/- had already been advanced on the security of the defendant to M/S Atlas Engineering Company, Ludhiana, which was a partnership firm consisting of Kuldip Chand Khanna son of Girdhari Lal and Shila Rani wife of Girdhari Lal defendant. According to the plaintiff the accounts for the earlier loan had been settled and the defendant took over the liability to pay the amount of Rs. 32000/- and executed the mortgage deed Ex.P. 1. Since the defendant did not pay the amount and the interest, hence the present suit. 2A. In the written statement it was pleaded that M/s Atlas Engineering Company was a necessary party to the suit. It was maintained that the plaintiff had advanced a loan to the company of his own from time to time and had been charging highly excessive interest at 21/2% per month to 31/2% month. It was denied that the defendant was a surety for advance made by the plaintiff to the company. It was further stated that Kuldip Chand Khanna was the proprietor of the said company whereas the plaintiff was father-in-law of Narinder Kumari the daughter of the defendant, Kuldip Chand Khanna due to financial difficulties could not repay the loan along with interest and thus the plaintiff pestered the defendant to execute mortgage deed of his house for payment of the debt of the company. It was further claimed that the plaintiff had already realised interest from the company at excessive rates which it could not do in view of the provisions of Usurious Loans Act and that if interest was calculated at the permissible rate of 121/2% per annum, the total amount due from the company to the plaintiff would work out at Rs. 13071.62 which the defendant would be prepared to pay if his plea regarding the mortgage being void because of coercion and undue influence was not accepted.

(3.) On the pleadings of the parties, the following issues were framed :-