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2018 Supreme(Mad) 2301
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
R. Ethirajammal - Petitioners
Versus
Y. Kavitha Rep. by her power agent Y.V.S. Reddy & Ors. - Respondents
S. A.Nos.2148 & 2149 of 2004
Decided On : 27-07-2018
For the Appellants : Mr. V. Raghavachari.
The appellants failed to provide acceptable material to support their plea of discharge of the mortgage amount, and the properties were not being brought to sale in contravention of the statutory provisions.
Headnote:
Mortgage - Discharge of Mortgage - Section 69 of the Transfer of Property Act - 2.2.1982 - 9.1.1995 - O.S.No.224/1995, O.S.No.225/1995 - Ex.A1, Ex.A5, Ex.B6 - Mortgage deeds, original title deeds, auction sale, injunction, oral and documentary evidence, judgment and decree, substantial questions of law
Fact of the Case:
The suits were laid for the reliefs of declaration and permanent injunction. The trial Court decreed the suits, but the first appellate Court set aside the judgment and decree of the trial Court and dismissed the suits. The present second appeals were filed impugning the same.
Finding of the Court:
The first appellate Court found that the appellants had not discharged the mortgage amount and failed to establish their case. It also held that the properties were not being brought to sale in contravention of the statutory provisions and that the mortgage deeds were not barred by limitation.
Issues: The issues involved in the matter included the discharge of mortgage, auction sale, grant of injunction, and the appreciation of oral and documentary evidence.
Ratio Decidendi: The court found that the appellants had not provided acceptable material to support their plea of discharge of the mortgage amount. It also determined that the properties were not being brought to sale in contravention of the statutory provisions and that the mortgage deeds were not barred by limitation.
Final Decision: Both the second appeals failed and were dismissed. No costs were awarded.
1. Second appeal No. 2148 of 2004 is directed against the judgment and decree dated 29.09.1998, passed in A.S.No.136/1996, on the file of 8th Additional Judge, City Civil Court, Chennai, reversing the judgment and decree dated 29.02.1996, passed in O.S.No.224/1995, on the file of the 1st Assistant Judge, City Civil Court, Chennai.
2. Second appeal No. 2149 of 2004 is directed against the judgment and decree dated 29.09.1998, passed in A.S.No.135/1996, on the file of 8th Additional Judge, City Civil Court, Chennai, reversing the judgment and decree dated 29.02.1996, passed in O.S.No.225/1995 on the file of the 1st Assistant Judge, City Civil Court, Chennai.
3. The second appeals have been admitted on the following substantial questions of law:
1. Whether the mortgage dated 2.2.1982 is utterly barred by limitation or not?
2. Whether the auction sale dated 9.1.1995 is not in accordance with section 69 of the Transfer of Property Act or not?
3. For grant of injunction the circumstances on the date of the plaint is to be looked into and not the condition on the date of trial or not?
4. The appreciation of the oral and documentary evidence is not in the proper perspective or not?
5. Whether the lower appellate Court is right in reversing the judgment of the trial Court in the absence of defendants 1 and 2 by not making themselves available before the court and tendering the best evidence?
6. Whether the evidence of DW1 is acceptable when he had alleged that the original document had not been received by defendants 1 and 2 at the time of mortgage transaction?
7. Whether the learned Judge ought not to have adverted the parent document being lodged in court in O.S. No.6106 of 1983?
8. Whether the discharge of Ex.A1 is not established by the endorsement on Ex.A5 and whether the findings of the lower appellate Court that the endorsement cannot be relied upon is perse reasonable?
9. Whether the lower appellate Court is right in overlooking Ex.B6 wherein the final amount had been tendered in 1990?
10. When the parent document had been returned to the mortgagor, does it not rise the presumption of discharge of document?
11. Whether the non-examination of defendants 1 and 2 is not fatal in the case of defendants?
12. Should not the lower appellate Court examine the conduct of the defendants 1 and 2 in the light of the inaction between 1990 and 1994 as one proving the discharge of the mortgage under Ex.A1?
4. The suits had been laid for the reliefs of declaration and permanent injunction.
5. Considering the scope of the issues involved in the matter as regards the subject matter between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
6. Based on the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to decree the suits preferred by the appellants as prayed for. However, the first appellate Court, on an appreciation of the materials placed on record, was pleased to set-aside the judgment and decree of the trial Court and by way of allowing the appeals preferred by the respondents, dismissed the suits laid by the appellants. Impugning the same, the present second appeals have been preferred.
7. The execution of the mortgage deeds involved in the matter is not in dispute. However, the appellants would plead that they have discharged the mortgage amount and hence, the mortgagee is not entitled to enforce the mortgage. However, as regards the plea of discharge of the mortgage amount by the appellants, as rightly determined by the first appellate Court, there is no acceptable material placed on record to buttress the same. If really, the mortgage amount had been repaid by the appellants, as rightly determined by the first appellate Court, the appellants would have insisted the mortgagee to return the original mortgage deeds and on the other hand, it is found that, even as per the case of the appellants, the mortgage deeds had not been
