Contract clauses regarding repayment can be enforceable despite non-registration of mortgage provisions, emphasizing the severability of transactional obligations.

JUDGMENT :

ANANT RAMANATH HEGDE, J.

1. This Regular First Appeal is arising from the judgment and decree in O.S.No.70/2006 on the file of II Additional Senior Civil Judge at Kolar. The unsuccessful plaintiff in the said suit for recovery of money is before this Court under Section 96 of the Code of Civil Procedure, 1908 (for short 'the Code').

2. The suit is based on a transaction said to have taken place on 07.03.2003. The plaintiff claims that he lent Rs.1 lakh as a loan to the defendant and the defendant agreed to repay the loan amount within one year from the date of loan transaction along with interest @ 2% per month. The plaintiff also claims that the defendant executed a document on 07.03.2003 evidencing loan transaction and also the mortgage of defendant's property as a security for the loan.

3. The plaintiff issued a notice demanding the amount on the premise that the defendant defaulted to pay the amount. The defendant replied to the notice denying the transaction. Thus, the suit was filed to recover Rs.1,72,000/. The said amount of Rs.1,72,000/- comprises Rs.1 lakh towards principal amount and Rs.72,000/- towards interest accrued as on the date of the suit. The plaintiff has also claimed interest @ 2% per month from the date of the suit till the realisation of the decreetal amount.

4. The defendant contested the suit. The entire transaction is disputed. The trial Court has framed the following issues:

5. The plaintiff to substantiate his case has produced 11 documents. The entire claim of the plaintiff is based on Ex.P1-the document said to have been executed on 07.03.2003 by the defendant where the defendant has undertaken to repay the loan amount by offering her residential house as a security to the loan. Since the execution of the document is disputed, the plaintiff apart from examining himself has also examined one of the witnesses to the said document and also the scribe to the said document. Plaintiff as well as two witnesses on behalf of the plaintiff have been cross-examined.

6. Defendant has examined herself as DW-1. The defendant is also cross-examined.

7. The trial Court has dismissed the suit on the premise that the document dated 07.03.2003 is inadmissible in evidence for want of registration. Thus, the suit is dismissed. The plaintiff being aggrieved by the said dismissal is before this Court.

8. The notice sent to the defendant in normal course is returned with an endorsement 'defendant has left' and thereafter the plaintiff has filed an application to take out notice to the defendant through paper publication. The defendant remained absent despite paper publication in newspaper having wide circulation 'Prajavani'. Today also there is no representation on behalf of the defendant.

9. Heard Smt.Rakshitha V.N., the learned counsel appearing for the appellant/plaintiff.

10. Learned counsel appearing for the plaintiff/appellant would contend that the trial Court has committed an error in dismissing the suit despite the fact that the loan transaction is duly established. It is her further contention that the suit could not have been dismissed on the premise that the document at Ex.P1 is unregistered. She further contends that there is a Clause in agreement dated 07.03.2003, wherein the defendant has undertaken to repay the loan amount within one year from the date of loan transaction and the said Clause can be segregated from the Clause in the document creating mortgage. Thus, it is urged that the said Clause in the document where the defendant has undertaken to repay the loan amount does not require any registration. It is her contention that if a document requires compulsory re