Advocates:
['M/S C R PRASANAN', '', 'A KUNDAVAI', 'J MAHESWARAN', 'm/s c veeraraghavan', '', 'r s siva priya']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 24.01.2022

Coram:

THE HONOURABLE MR.JUSTICE T.RAJA

and

THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Appeal Suit No.595 of 2019

K.Palanisamy, S/o Kulandhaivelu

.. Appellant/defendant

Vs.

K.M.Duraisamy, S/o Late Marappa Gounder

.. Respondent/plaintiff

Appeal Suit (First Appeal) filed under Section 96 of the

Code of Civil Procedure, against the judgment and decree, dated

14.09.2018 made in O.S.No.16 of 2015 on the file of the I

Additional District Court, Coimbatore.

For appellant : Mr.C.R.Prasanan

For respondent: Mr.C.Veeraraghavan

JUDGMENT

(The Judgment of the Court was delivered by T.Raja, J)

The appeal is heard through video-conferencing.

2. This appeal has been brought before us by the

unsuccessful defendant questioning the correctness of the

findings and the conclusions reached by the learned First

Additional District Judge, Coimbatore (hereinafter referred to

as 'the trial Court'), in the impugned judgment and decree dated

14.09.2018 in O.S.No.16 of 2015, in and by which, the trial

Court, while accepting the case of the plaintiff for money

decree, decreed the suit, directing the appellant/defendant to

pay a sum of Rs.32,38,136/- (which includes the principal amount

of Rs.20 lakhs), and fixed the interest @ 9% per annum for the

said sum of Rs.20 lakhs and the trial Court further directed

that the future interest is payable @ 6% from the date of decree

till the date of realisation.

3. Learned counsel for the appellant/defendant argued that

it was the case of the respondent/plaintiff that both the

https://hcservices.ecourts.gov.in/hcservices/

plaintiff and the defendant were known friends. While so, the

plaintiff claims that the appellant/defendant is said to have

borrowed a sum of Rs.20 lakhs by cash from the plaintiff on

14.06.2012 for construction of a building and also towards the

business and family expenses by executing a Promissory Note (for

short, "pro-note"), with the promise to repay the same with

interest @ 2% per month on demand. It is also the further case

of the respondent/plaintiff that the appellant/defendant had

deposited his original title deed with the first

respondent/plaintiff at Coimbatore Town on 15.06.2012.

4. Learned counsel for the appellant/defendant further

contended that the sale deed, dated 17.9.2008 stated to have

been executed in favour of the defendant by Mr.Subramanian and

M.Thangavelu, is a registered document bearing Document No.4285

of 2008, in respect of the property in question, with an

intention to create equitable

mortgage over the same.

Accordingly, an equitable mortgage was created upon the said

property. After some time, when the plaintiff is said to have

made demand for repayment of the said loan and on failure to pay

back

the

money

by

the

appellant/defendant,

the

respondent/plaintiff issued a legal notice, dated 06.12.2014

calling upon the appellant/defendant to re-pay the amount, and

on receipt of the same, a reply notice, dated 05.01.2015 was

issued by the appellant/defendant. Finally, the plaintiff had

filed the suit to pass a personal decree for a sum of

Rs.32,38,136/- with interest on Rs.20 lakhs @ 24% per annum from

the date of suit till the date of realisation and to pass

preliminary mortgage decree for a sum of Rs.32,38,136/- with

interest on Rs.20 lakhs @ 24% per annum from the date of suit

till the date of realisation and for payment of costs.

5. Learned counsel for the appellant/defendant emphatically

denied the execution of both the Promissory Note, dated

14.06.2012 and also the creation of the equitable mortgage upon

the said property. It is further argued that there was no such

transaction that had taken place between the plaintiff and the

defendant at any point of time. However, when the

appellant/defendant receive