The execution of a registered mortgage deed must be proven, and past consideration is valid; failure to testify can lead to adverse inferences against the party withholding evidence.

JUDGMENT :

T Mallikarjuna Rao, J.

1. The Appeal, under Section 96 of the Code of the Civil Procedure, 1908 (for short, 'C.P.C.'), is filed by the Appellant/Plaintiff challenging the decree and Judgment dated 28.03.2017 in O.S.No.50 of 2015 passed by the learned II Additional District Judge, Parvatipuram, (for short, ‘trial Court’).

2. The Appellant is the Plaintiff, who filed the suit in O.S.No.50 of 2015 against the Defendant directing her to pay Rs.13,95,000/- along with subsequent interest at 18% per annum on Rs.10,00,000/- due under the registered mortgage deed, dated 28.07.2012, from the date of filing the suit till the date of realization.

3. Referring to the parties as they are initially arrayed in the suit is reasonable to mitigate confusion and better comprehend the case.

4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows:

Defendant borrowed a sum of Rs.10,00,000/- from Plaintiff, agreeing to repay the amount with interest at the rate of 18% per annum, and executed a registered simple mortgage deed dated 28.07.2012, under document No. 2833/2012, agreeing to redeem the mortgage within one year by creating a charge over the plaint schedule property. Despite repeated demands and requests by the Plaintiff, the Defendant failed to repay the loan. Defendant continued to delay the matter, and on 06.10.2014, Plaintiff learned that Defendant was trying to alienate the plaint schedule property to third parties. When Plaintiff confronted Defendant, she was challenged to take any action she wished. Consequently, the Plaintiff filed the present suit to recover the loan amount based on the mortgage deed.

5. In the written statement, Defendant refuted the plaint averments and asserted that Plaintiff, being a poor woman, could not have lent Rs.10,00,000/-. The Defendant further contended that she did not need to borrow such a large sum as a housewife and small farmer with Ac.3.00 cents of land. She never executed a registered mortgage deed in favour of the Plaintiff, describing the alleged deed dated 28.07.2012 as a forgery. She explained that her husband had a rice mill in Kotipam, mortgaged to the State Bank of Hyderabad, but due to loss, the bank sought to sell the mill, prompting their move to Rajahmundry in 2009. During this time, she claimed that her husband’s enemies fabricated documents, including the alleged mortgage deed, and filed suits against him. Defendant also contended that Plaintiff never demanded repayment of the loan and sought protection under A.P.Act 7/77, requesting the suit be dismissed with costs for lack of cause of action.

6. Based on the pleadings, the trial Court framed the following issues:

(1) Whether the mortgage deed dated 28.07.2012 is true, valid and binding on the Defendant?

(2) Whether the Plaintiff is entitled for suit amount?

(3) To what relief?

7. The suit was initially filed before the Principal District Court, Vizianagaram, as O.S.No.107 of 2014. It was later transferred to the trial court and renumbered as O.S.No.50 of 2015.

8. During the trial, on behalf of Plaintiff, P.Ws.1 to 3 were examined and marked Ex.A.1. On behalf of Defendant, no witnesses were examined, and no documents were marked.

9. After completing the trial and hearing the arguments of both sides, the trial Court dismissed the suit without costs.

10. Sri Kuriti Bhaskara Rao, learned counsel for the Appellant / Plaintiff, asserts that the trial Court failed to consider the clear terms of the registered mortgage deed (Ex.A.1), executed on 28.07.2012, which acknowledged the Defendant's receipt of Rs.10,00,000/- in total, with Rs.6,00,000/- previously borrowed and Rs.4,00,000/- paid at the time of execution. The Sub-Registrar verified the document and took the Defendant's thumb impression, with two witnesses present. Despite this, the trial Court did not address the execution of the mortgage deed. He further asserts that the trial Court overlooked writte