N. SATHISH KUMAR, J.

1. Aggrieved over the first appellate Court judgment in allowing the appeal and decreeing the suit filed by the plaintiff for recovery of money, opposing the preliminary decree passed, the present second appeal has been filed.

2. The parties are arrayed as per their own ranking before the trial Court.

3. Brief facts of the case of the plaintiff is as follows:

The defendant borrowed a sum of Rs. 50,000/- from the plaintiff on 01.05.1997 for his business purpose and undertook to repay the amount along with interest at the rate of 3.5% per mensum with quarterly rests from the date of borrowing till repayment and in evidence of which, he executed a promissory note in favour of the plaintiff on 01.05.1997. Besides, he also created an equitable mortgage in respect of the immovable property measuring to an extent of 0.10 acres situate in R.S. No. 3897 of Ootacamund Town together with the godown situate thereon bearing Old No. 104C, New Door No. 73 Old Ward No. 12, New Ward No. 22 and deposited title deeds of the said property. On 02.05.1997 by letter of confirmation, the defendant confirmed the Equitable Mortgage. In spite of repeated demands, the defendant failed to repay the amount. Hence the suit.

4. It is the contention of the defendant that in the month of May, he requested the plaintiff to advance a sum of Rs. 50,000/- loan and accordingly the plaintiff agreed to pay Rs. 50,000/-. However, the defendant denied the allegation that he had agreed to pay interest at the rate of 3.5% per mensum at quarterly rests and the same is a figment of imagination. At no point of time this defendant had any intention to create mortgage. It is his further contention that though the plaintiff's father was a tenant under this defendant in respect of Door No. 104, the plaintiff took over the premises and continued the tenancy and adjusted the rent towards the amount borrowed by the defendant. As such entire loan and interest was wiped out long back. The defendant insisted for return of the original documents and the plaintiff is dodging on some pretext or the other as if the defendant owes the suit claim. Hence, prayed for dismissal of the suit.

5. The trail Court framed the following issues:

1. Whether the plaintiff is entitled for a preliminary decree as prayed for?

2. Whether there is any intention to create mortgage by the defendant?

3. Whether the suit is barred by limitation?

4. To what other relier?

6. On the side of the plaintiff, PW-1 was examined and Ex.A.1 to Ex.A.10 were marked. On the side of the defendant, DW-1 was examined and no document was marked on the side of the defendant.

7. The trial Court dismissed the suit on the ground that the suit promissory note has not been proved and the suit is barred by limitation. However, the first appellate Court reversed the finding by holding that by depositing the title deeds, the defendant has created equitable mortgage. Aggrieved over the same, the present second appeal has been filed.

8. This Second Appeal is pending in the stage of admission. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent at the stage of admission itself.

9. The learned counsel appearing for the appellant submitted that Ex.A.5 letter of confirmation cannot be treated as a mortgage and confirmation of equitable mortgage is not admissible in evidence since the transaction has took place on the same day. Therefore, the same is not admissible in evidence. Therefore, the contention of the learned counsel for the appellant is that the first appellate Court has not properly appreciated the evidence and documents. Hence, submitted that the judgment of the first appellate Court is liable to be interfered. In support of his submissions, he has relied upon the judgment of this Court in Ponnusway vs. V. Santhammal and Others, 1998 (2) LW 251.

10. The learned counsel appearing for the respondent submitted that the entire borrowal and signing of the documents h