JUDGMENT

The concurrent Judgments and decrees, passed in O.S.No.56 of 2007 by the Additional Sub Court, Kumbakonam and in A.S.No.18 of 2013, on the file of the Principal District Court, Thanjavur, are being challenged in the present Second Appeal.

2.The respondent herein as plaintiff has instituted a suit in O.S.No.56 of 2007 on the file of the trial Court for recovery of money of a sum of Rs.97,000/- along with interest, wherein, the appellant has been shown as the defendant.

3.In the plaint it is averred that the defendant borrowed a sum of Rs.

97,000/- from the plaintiff on 30.09.2005 for his family expenses and executed a mortgage deed in favour of the plaintiff on the same day and the same was registered at Thiruvidaimaruthur Sub-Registrar Office on 03.10.2005 in Document No.1965 of 2005. As per the mortgage deed, the defendant has agreed to repay the amount with interest at the rate of 24% and also agreed to repay the principal amount within one year from the date of mortgage deed. Since the defendant has not paid any amount either towards principal or interest to the plaintiff for the said mortgage deed, the plaintiff has sent a legal notice on 14.02.2007 to the defendant. The defendant received the same on 19.02.2007. But so far the defendant has not make any payment, the plaintiff has filed the suit.

4.In the written statement filed on the side of the defendant, the defendant denied the borrowal of a sum of Rs.97,000/- along with interest at the rate of 12% per annum and execution of a mortgage deed. The defendant's father in the year 2004 borrowed a sum of Rs.20,000/- from the plaintiff and for that transaction, the defendant's passport was retained by way of security. Since the defendant received visa for his job at Kuwait, he is in need of his passport. While the defendant approached the plaintiff for the return of the passport, the plaintiff insisted for the execution of a mortgage deed, as claimed by him. To save his foreign job, the plaintiff compelled the defendant to sign the mortgage deed, without getting any amount from the plaintiff. The defendant is not liable to pay any amount and prayed for dismissal of the suit.

5. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and Exs.A1 to A3 were marked. On the side of the defendant, the father of the defendant was examined as D.W.1 and Ex.D.1 to D.4 were marked.

6. On the basis of the rival pleadings on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence, has decreed the suit in favour of the respondent / plaintiff and directed the defendant to pay a sum of 1,33,407.52/- and 6% per annum from the date of petition till the date of realization for the principal amount of Rs.97,000/-.

7.Aggrieved by the Judgment and decree passed by the trial Court, the defendant as appellant, had filed an Appeal Suit in A.S.No.18 of 2013. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and confirmed the Judgment and decree passed by the trial Court.

8.Challenging the said concurrent judgments and decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the defendant as appellant.

8.At the time of admitting the present second appeal, the following substantial question of law has been framed for consideration:

"Whether the Courts below were right in holding that Ex.A.1 mortgage deed is proved when none of the attestors are examined as contemplated under Section 63 of the Indian Evidence Act?"

9.The learned counsel appearing for the appellant/defendant contended that both the Courts below have failed to see that the plaintiff has not examined any one of the attestors of Ex.A.1-mortgage deed and the same is not admissible in evidence. There is no independent evidence to establish that a sum of Rs.97,000/- was paid by the plaintiff under Ex.A.1. There is a misunde