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2021 Supreme(Mad) 3044
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. Asha, J.
R.Ravindra Kumar - Appellant
Versus
S.B.S.Kumar and ors. – Respondents
A.S.No.3 of 2018
Decided On : 25-11-2021
Advocate Appeared:
For the Appellant : Mr. S.R. Rajagopal for Mr.T.Niramaleshwar
For the Respondent: Mr. K.Krishnasamy for Mr.V.Manisekaran
Headnote:
Transfer of Property Act – Section - 58(f) - Suit for - Recovery of loan Amount - Court challenging dismissal of his suit filed for recovery from date of suit till date of realization- Suit has been filed as a mortgage suit on basis of a mortgage by deposit of title deeds - Whether defendants have created an equitable mortgage as contended by plaintiff in respect of amounts due towards Promissory notes - Whether defendants are liable to pay suit claim - Whether plaintiff has rightly given credit to amounts paid by defendants– Held, Court are unable to accept Court argument as correct - Even if burden of proof does not lie on a party Court may draw an adverse inference if he withholds important documents in his possession which can throw light on facts at issue -It is not in our opinion a sound practice for those desiring to rely upon a certain state of facts to withhold from Court best evidence which is in their possession which could throw light upon issues in controversy and to rely upon abstract doctrine of onus of proof - In absence of accounts books claim made by Plaintiff has not been substantiated by evidence particularly when plaintiff has admitted receiving sums of money which has not been accounted for and a huge sum paid within less than a month of borrowal is claimed to have been adjusted towards interest without showing actual amount that had been adjusted towards interest - In circumstances Court is compelled to hold that Plaintiff has not proved his right to suit claim and 2nd and 3rd points for consideration are also answered against plaintiff - Appeal dismissed.
JUDGMENT :
The unsuccessful plaintiff is the appellant before this Court, challenging the dismissal of his suit filed for recovery of a sum of Rs. 15,20,874/- with interest at 1.70% per annum on Rs.15,00,000/- from the date of suit till the date of realization. The suit has been filed as a mortgage suit on the basis of a mortgage by deposit of title deeds. To appreciate the grievance of the plaintiff it is necessary to briefly narrate the circumstances which has culminated in the filing of the suit. The parties are referred to in the same litigative status as before the Trial Court
Plaintiff's Case:
2. The plaintiff had filed the suit originally before this Court in C.S.No.353 of 1997 and after the framing of the issues by this Court, the pecuniary jurisdiction of the City Civil Court had been enhanced and consequently the suit was transferred to the Civil City Court and renumbered as O.S.No.3553 of 2013 on the filed of the XV Additional Judge City Civil Court Chennai.
3. It is the case of the plaintiff that on 07.08.1995 the 1st defendant had borrowed a sum of Rs.10,000/- and had executed a simple mortgage in favour of the plaintiff. This amount was also advanced to defendants 2 to 6 and late Rajammal the mother of the defendants who executed the deed as the power agent of Suriyanarayanan, the 5th defendant and S.B.S. Ravi, the 6th defendant. On 08.08.1995 the 1st defendant had executed a financial agreement in and by which the plaintiff had agreed to extend the loan of a sum of Rs.25,00,000/- to the 1st defendant for his business needs. In pursuance of this agreement the 1st defendant had extended a loan of Rs.15,00,000/- to the 1st defendant for which promissory notes had been executed by the 1st defendant. Defendants 2 to 4 and Rajammal had signed the same as guarantors. It is also the case of the plaintiff that Rajammal for herself and as a power agents of defendants 2 to 4 and defendants 5 and 6 executed guarantee letters. Therefore, defendants 1 to 6 and Rajammal are liable to pay the suit claim. Pending the suit Rajammal died leaving behind the defendants 1 to 6 and her daughters who were subsequently impleaded as parties to the suit.
4. The plaintiff would contend that under the financial agreement dated 08.08.1995, it was agreed that the amounts would be advanced by the plaintiff as well as other 3rd parties financiers. Accordingly, money was given by these 3rd party financiers and the promissory notes had been executed in favour of the 3rd party financiers who have in turn had endorsed the promissory notes in favour of the plaintiff. The plaintiff would contend that despite repeated requests the defendants had not come forward to pay the outstanding. On the contrary they had filed a suit O.S.No.615 of 1997 for redemption of the simple mortgage dated 07.08.1995. In the said suit the defendants 1 and 2 had sought for the return of the original document. The plaintiff would submit that the documents which were handed over at the time of the execution of the simple mortgage was returned to the defendants who once again created a mortgage by deposit of title deeds on 15.08.1991. As the payment was not made the plaintiff has come forward with the present suit.
Written Statement:
5(i) Written Statement of Defendants 1 and 2 :
These defendants would contend that the plaintiff by profession is a money lender. Since the 1st defendant had urgently required a sum of Rs.10,000/- to meet a pressing financial need, they had approached the plaintiff who insisted on the execution of the simple mortgage in his favour. Accordingly, on 07.08.1995, the 1st defendant had executed a simple mortgage in favour of the plaintiff and at that time, signatures were obtained on several blank papers. On 09.08.1995, once again the defendants had approached the plaintiff for a loan for the purpose of improving the business, at that point the plaintiff
