In mortgage redemption suits, the burden of proof lies on the plaintiff to establish payments made, and interest is awarded based on contractual terms unless otherwise determined by the court.

JUDGMENT :

C.V.KARTHIKEYAN, J.

The 1st defendant in O.S. No.6124 of 2001 on the file of the First Assistant City Civil Court at Chennai and the 3rd respondent, who was subsequently impleaded in the First Appeal, are the appellants herein. Pending appeal, the 1st respondent /plaintiff in the suit died and his legal representatives had been brought on record as further respondents.

2. O.S. No. 6124 of 2001 had been filed by the 1st respondent-M.K.Kannan under Section 60 of the Transfer of Property Act, 1889 seeking a judgment and decree directing the 1st defendant to cancel the mortgage deeds dated 06.09.1996 and 02.06.1997 and consequently, to redeem the schedule mentioned properties and grant permanent injunction restraining the defendants from bringing the suit schedule property for sale by way of public auction and for costs of the suit. By judgment and decree dated 20.01.2007, the suit was dismissed with costs. This necessitated the plaintiff to file A.S. No. 436 of 2007. Pending the Appeal Suit, since the 1st defendant had assigned the rights under the mortgage to a third party, the said third party was impleaded as 3^rd respondent in the Appeal Suit. The Appeal Suit came up for consideration before the IV Additional City Civil Court at Chennai and by judgment and decree dated 22.12.2009, the Appeal Suit was allowed with costs and the judgment and decree of the trial Court was set aside and the suit was decreed with costs.

3. Questioning that particular judgment, the 1 defendant and the newly impleaded the 3^rd respondent in the First Appeal have filed the present Second Appeal. The Second Appeal had been admitted on the following substantial questions of law:-

“1. Whether the lower appellate Court is correct in law in casting the onus on the defendant /appellant to prove the discharge of the mortgage loan when it is for the plaintiff to prove discharge as per the provisions of Section 101 of the Indian EVIDENCE ACT ?

2. Whether the lower appellate Court is correct in law in drawing on adverse inference against the appellant for not producing their accounts especially when it is not the case of the plaintiff that the passbook and receipts filed by him as Ex.A3, A4, A16 & A17 do not reflect the correct statement?

3. Whether the lower appellate court is correct in law in coming to the conclusion that the appellant is not entitled to claim interest after the date of the filing of the redemption suit especially when the respondent has not complied with the provisions of Section 83 of the Transfer of Property Act?

4. To what relief?”

4. The arguments in the Second Appeal revolved primarily around the claim of the 1st respondent /plaintiff in the suit that he had discharged the mortgage and there was no substantial amount due and payable. As per the statements of accounts, the balance amount payable would be Rs.85,981.50. However, though the suit was dismissed, it is a fact that the mortgage had been entered into by the 1 respondent with the 1st appellant, and that there are admittedly amounts due and payable by the 1st respondent to the 1 appellant.

5. In view of that particular statement made, arguments further revolved around whether interest should be recovered pendente lite taking into consideration the fact that the suit had been instituted in the year 2001 and whether interest would be governed by the agreement between the parties and whether the Court could entertain pendente lite interest.

6. In view of the nature of the arguments advanced and the Second Appeal having been admitted, it will only be appropriate that the substantial questions of law are modified and Courts takes upon its onus to answer the follo