IMPORTANT POINT
Once defendant admits taking of loan he is bound to prove that it has been repaid.

Soumen Sen, J.—The plaintiff has instituted this suit for recovery of money lent and advanced and for enforcement of mortgage. The case made out by the plaintiff in the plaint is summarized below.

2. On or about 26th September, 1994, the plaintiff had lent and advanced a sum of Rs.20 lacs to Ajit Nain, defendant no.1, on terms of an agreement that the said sum would be repaid by him in five monthly installments of Rs.4 lacs each commencing from January 1995 to May 1995. The agreement provided that the said loan would carry an interest at the rate of 18% per annum to be paid on monthly basis by the defendant commencing from 25th October, 1994 on reducing balance. In the event of default of payment or either the principal or the interest, the defendant no.1 would pay penal interest of 1% per month. In consideration of the plaintiff agreeing to grant such accommodation loan to the defendant No.1 and as security thereof, the defendant No.2 would mortgage a flat owned by Ashok Nain at “Monalisa Co-operative Housing Society”, being Flat No.6D, 17, Camac Street, Kolkata, in favour of the plaintiff. The defendant No.2 is the brother of the defendant No.1. On the basis of such agreement the plaintiff by a cheque bearing No.47613 dated September 26, 1994 drawn on Indian Bank, Ganesh Chandra Avenue, Kolkata, lent and advanced a sum of Rs.20,00,000/- to the defendant No.1. The defendant No.1, thereafter encashed the said cheque and appropriated the proceeds thereof for his own benefit. The terms and conditions of the said loan agreement were recorded in a letter written by the defendant no.1 dated 26th September, 1994.

3. The defendant No.1 in acknowledgement of such loan also executed a demand Promissory Note.

4. In consideration of the plaintiff granting such loan of Rs.20,00,000/- (Rupees twenty lakhs) only to the defendant no.1 as aforesaid and as further security, therefor, the defendant no.2 deposited with the plaintiff at Calcutta the original Title Deed in respect of his said flat being Flat No.6-D on the 6th floor of Monalisa Building at Premises No.17, Camac Street, Kolkata – 700 017 situated within the jurisdiction of this Hon’ble Court together with all furniture and fixtures, sanitary fittings, equipments and garage No.22 in the said Premises and thereafter recorded the same in a writing dated 27th September, 1994.

5. The original Title Deeds deposited by the defendant no.2 to the plaintiff are as follows:-

(i) Original share script bearing no.17 of Monalisa Co-operative Housing Society Limited.

(ii) Purchase Agreement dated 6th May, 1980 between Ms. Fatima Raza and the defendant no.2.

6. Out of the principal amount of Rs.20 lacs lent and advanced, only a sum of Rs.13 lacs have been repaid by the defendants till May, 1999, leaving a balance of Rs.7 lacs as outstanding on account of principal. Interest, however, was paid till 25th October, 1996.

7. The defendants thereafter in acknowledgement of their liability paid a sum of Rs.2 lacs by two several cheques bearing No.540739 dated 2nd November, 2006 for Rs.1 lac and Cheque No.540740 dated 7th November, 2006 for Rs.1 lac respectively. The defendants, thereafter, on repeated demands for payment of the balance amount, proposed to make partial payment of the amount due and, accordingly, had issued five post dated cheques of Rs.3 lacs each payable between 31st March, 2008 and 30 October, 2008. The defendants, however, wrongfully, illegally and mischievously with the intention of avoiding payment of the amounts covered by the said cheques by letter dated 11th March, 2008 demanded return of the said cheques on allegation that the said defendant No.1 did not receive the alleged value against the said cheques.

8. In the premises, the plaintiff filed a suit against the defendants claiming a money decree for a sum of Rs.1,53,34,792.09 on account of balance principal amount and interest as well as for foreclosure and sale of the mortgaged flat.

9. The defendants contested the suit and f