Dismissed

S.Panner Selvam v. M.Ponmozhi

Madras HC10 Jan 2013SA/519/2012

Case brief

AI extract

What is this about?

This second appeal challenged a decree confirming an equitable mortgage based on a promissory note and deposit of title deeds. The High Court dismissed the appeal, affirming the lower courts' finding that the appellant failed to prove blank paper execution and that no substantial question of law existed. Interest was upheld at 6%. It is a contract dispute concerning debt recovery.

What did the court decide?

Second appeal dismissed; no order as to costs; connected miscellaneous petition closed.

S.Panner Selvam Vs M.Ponmozhi — Specific Performance | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 10.01.2013

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CORAM

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THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

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S.A.No.519 of 2012 & M.P.No.1 of 2012

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Mr.S.Panneer Selvam .. Appellant/ Defendant

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-Vs-

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Mrs.M.Ponmozhi .. Respondent/ Plaintiff

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Second Appeal filed under section 100 of C.P.C against the decree and judgment dated 30.09.2011 made in A.S.No.21 of 2010 on the file of the Principal District Judge of Salem reversing the decree and judgment dated 27.10.2009 in O.S.No.89 of 2008 on the file of the Subordinate Judge, Salem.

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For appellants : Mr.A.Radhakrishnan

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For Respondent : Mr.S.Mukundh For M/s.Sarwabhauman Associates

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JUDGMENT

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The defendant in the original suit is the appellant. The suit was filed on the basis of a promissory note dated 08.11.2007 and an equitable mortgage created by deposit of title deeds made on 09.11.2007 in respect of the property described in the plaint schedule. The respondent herein/plaintiff had averred that the appellant herein/defendant borrowed a sum of Rs.1,20,000/- on 08.11.2007 and executed the suit promissory note on the same day promising to repay the said amount with an interest at the rate of 18% p.a and on the succeeding day, namely on 09.11.2007, he created an equitable mortgage by depositing his title deed, namely a registered settlement deed dated 13.07.2007 relating to the property described in the plaint schedule, with intention to create a security for the debt. Further averment made in the plaint is that despite repeated demands, the appellant/defendant did not pay any amount either towards interest or towards principal and hence, the respondent/plaintiff had to file the suit for recovery of a sum of Rs.1,27,200/-, the amount due as on the date of plaint, with subsequent interest and cost. Since the suit was filed based on the equitable mortgage allegedly created in respect of the suit property, he had prayed for a preliminary decree for sale of the mortgaged property fixing a date for the payment of the amount due under the mortgage and for a final decree for the sale of the https://hcservices.ecourts.gov.in/hcservices/ property on default of payment of the said amount and also for a

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personal decree in case the sale proceeds would not be sufficient to discharge the suit claim.

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The suit was resisted by the appellant herein/defendant contending that the suit promissory note dated 08.11.2007 and the memorandum of deposit of title deeds dated 09.11.2008 were not executed by him in favour of the respondent/plaintiff; that the settlement deed referred to in the plaint was not deposited with the respondent/plaintiff with the intention of creating a security for the loan and thereby creating an equitable mortgage and that those documents were created by using the signatures obtained by the respondent/plaintiff when he had lent money on an earlier date for which he was collecting exorbitant interest. It was the further contention of the appellant/defendant that 2007 to 2008, little by little he borrowed a total sum of Rs.70,000/- from the respondent/plaintiff for which the respondent/plaintiff was claiming interest at the rate of Rs.345/- per day. It was the further averment made in the written statement that the respondent / plaintiff used to make a note of the same in a pocket book that had been handed over to the appellant/defendant whenever default was committed in payment of the daily interest. It was the further contention made in the written statement that till the date of filing of the written statement he had paid a total sum between Rs.50,000/- to Rs.60,000/- and that in view of the collection of exorbitant interest, that too daily interest, a complaint came to be preferred against the respondent/plaintiff by Kaliammal, the wife of the appellant/defendant, on 03.03.2008 and in the enquiry conducted in the police station, the respondent/plaintiff agreed to get a sum of Rs.80,000/- and discharge the appellant/defendant from the liability of making payment in respect of the loan transaction between the plaintiff and the defendant. It is the further contention of the appellant/defendant that after having agreed before the police to accept Rs.80,000/- in full quit, he had chosen to fill up the blank promissory note forms and the blank papers containing the signature of the appellant/defendant and filed the suit. Based on the above said pleadings, the appellant / defendant had prayed for the dismissal of the suit.

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The learned trial Judge, who conducted trial after framing issues, considered the evidence and came to the conclusion that the suit promissory note and the memorandum of deposit of title deed were created with the help of the signatures obtained in the blank promissory note form and blank papers as contended by the appellant/defendant and based on the said finding dismissed the suit without costs by a judgment and decree dated 27.10.2009. On appeal, the learned lower appellate Judge, namely Principal District Judge, Salem, re-appraised the evidence and came to the conclusion that the defence plea of the appellant herein/defendant was not substantiated and accepted the plea of the plaintiff. Resultantly, by a judgment and decree dated 30.09.2011, the learned appellate Judge allowed the appeal, set aside the decree of the trial Court dismissing the suit and granted a preliminary decree for sale of the mortgaged property. The learned appellate Judge quantified the amount due as follows: https://hcservices.ecourts.gov.in/hcservices/

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Principal - Rs.1,20,000.00 Interest at the rate of 6% per annum from the date of pronote till the - date of judgment of the Rs. 28,200.00 appellate Court ----------------Total Rs.1,48,200.00

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Further interest at the very same rate on the principal sum was also allowed. Aggrieved and challenging the same, the present second appeal has been filed by the appellant/defendant.

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Notice before admission was given and the respondent has entered appearance through counsel. The arguments advanced by Mr.A.Radhakrishnan, learned counsel for the appellant and Mr.S.Mukundh, learned counsel for the respondent are heard. The grounds of appeal, copies of the judgments of the courts below and the copies of the other documents produced in the form of typed-set of papers are also taken into consideration.

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It is the contention of the learned counsel for the appellant that the learned first appellate Judge committed a grave error in not taking into consideration the fact that neither the suit promissory note nor the memorandum of deposit of title deeds was attested by any witness and that the finding of the lower appellate Court to the effect that the said documents stood proved should be held defective, infirm and even perverse. Learned counsel for the appellant contends further that the well considered finding rendered by the trial Court ought not to have been reversed by the lower appellate Court.

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Per contra, learned counsel for the respondent contends that since there is an admission that the signatures found in the promissory note and the memorandum of deposit of title deeds are that of the appellant/defendant and the appellant/defendant had come forward with a plea that the same were created using the blank papers and blank promissory note form containing his signature which were handed over to the respondent/plaintiff at the time of lending, was bound to prove his contention; that the lower appellate Court, properly applying the principle of law regarding burden of proof cast the burden on the appellant/defendant and that on a correct finding of fact that the appellant/defendant failed to prove his case of creation of documents with the help of the promissory note form and blank papers containing his signatures. It is the further contention of the learned counsel for the respondent/plaintiff that except the interested testimony of DW1 (the defendant himself) and the documents produced as Exs.B1, B2 and B3, there is no other evidence to support his case that the respondent / defendant was collecting exorbitant interest and the suit documents were created with the help of signatures obtained in blank papers. It is also the contention of the learned counsel for the respondent that there are vital contradictions in the stand taken by the https://hcservices.ecourts.gov.in/hcservices/ appellant/defendant in the pleadings and his evidence regarding the

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circumstances under which the title deed to the suit property came to be in the hands of the respondent/plaintiff.

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This Court paid its anxious considerations to the above said submissions made on both sides.

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The relationship between the appellant/defendant and respondent/plaintiff being debtor and creditor is an admitted one. According to the respondent/plaintiff, the appellant/defendant borrowed a sum of Rs.1,20,000/- on 08.11.2007 and executed the suit promissory note marked as Ex.A1 and on the very next day he deposited the title deed relating to the suit property with intend to create a mortgage for the loan. The letter evidencing the deposit of title deed has been marked as Ex.A3 and the title deed thus deposited, namely the settlement deed dated 13.07.2007 relating to the suit property has been marked as Ex.A2. The case of the respondent/plaintiff is that the appellant/defendant did not pay any amount either towards principal or towards interest till the date of filing of the suit. The said facts have been reiterated and restated by the plaintiff himself who figured as PW1. On the other hand, the appellant/defendant who took a stand that he had borrowed some amount from the respondent / plaintiff little by little between 2007-2008, was not able to give a clear figure as the total amount borrowed by him from the respondent/plaintiff. On the other hand, the appellant/defendant has taken a plea that he had borrowed on several occasions between 2007-2008, a total sum of Rs.70,000/from the respondent/plaintiff and was paying a daily interest of Rs.345/-. In stead of accounting for the correct amount paid either towards interest or towards principal, he has incorporated an ambiguous plea in the written statement to the effect that he had paid about a sum of Rs.50,000/- - Rs.60,000/- till the date of filing of the written statement. In Ex.A6 reply notice sent as a reply for Ex.A4-Notice, the appellant/defendant has stated that he had borrowed only a sum of Rs.26,000/- from the respondent / plaintiff. Apart from that, in the reply, the appellant/defendant has denied having deposited Ex.A2 title deed. In paragraph 3 of the written statement also he has blindly denied the alleged deposit of title deed. But while doing so, he has noted the date of settlement deed wrongly as 15.07.2007 instead of 13.07.2007. In his evidence, the appellant/defendant gave a go by to the total denial made in the written statement and chose to state that he borrowed little-bylittle a total sum of Rs.70,000/- between 2007 and 2008 and that during that period, apart from getting a signatures in the blank papers and unfilled promissory notes, the respondent/plaintiff enquired whether the appellant/defendant had any immovable property, whereupon the appellant/defendant showed Ex.A2 settlement deed to show that he had got property in his name and that the respondent/plaintiff who got it promising to return it after perusing it, chose to kept it with him. The above said stand of the appellant/defendant will probabalize the case of the respondent/plaintiff and improbabalize the case of the appellant/defendant.

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

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Of course it has been admitted that prior to the filing of the suit, the wife of the appellant/defendant chose to lodge a complaint with the police under the original of Ex.B2 and the police without registering an FIR, conducted an enquiry. Ex.B1 has been produced as a copy of the statement given by the respondent / plaintiff to the police agreeing to get a sum of Rs.80,000/- in full quit. It is pertinent to note that the appellant/defendant was not the complainant and on the other hand, his wife was made to lodge a complaint. It is also an admitted fact that no FIR was registered based on the said complaint. Ex.B1 was obtained in the police station. It will, at the best, show that the respondent/plaintiff was prepared to accept Rs.80,000/- in full quit, if the amount was paid without driving him to file a suit. The same cannot be taken as an admission that the amount borrowed was only Rs.70,000/- and not Rs.1,20,000/- as contended by the respondent / plaintiff. The other document Ex.B3 produced by the appellant/defendant is nothing but a pocket note purporting to be a note containing the particulars written by the respondent / plaintiff on various dates regarding the amount due. It does not contain the signature of the respondent / plaintiff or the signature of anybody on his behalf. The learned appellate Judge found it to be a self-serving document insufficient to prove the case of the appellant/defendant. The said finding of the lower appellate Court cannot be found fault with. It cannot be termed either defective or infirm, much less perverse.

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The other contention of the learned counsel for the appellant that neither Ex.A1 nor Ex.A3 has been attested by an attestor and hence, those documents are to be presumed to have been created using the blank promissory notes and blank papers in which the appellant's / defendant's signatures had been obtained, has got to be discountenanced. Neither of the documents is required by law to be attested. Therefore, the said contention deserves rejection. In addition, when a person signs a Negotiable instrument knowing fully well that it is a negotiable instrument leaving blanks and hands it over to the other person, the other person is entitled to fill up the blanks and make it a full-fledged negotiable instrument. In such a case, the proof of the said fact may tilt the balance if the defendant is able to prove the absence of consideration or the other circumstances probabalizing his case. In the absence of such reliable and concrete evidence, the presumption that the promissory note is supported by consideration will arise. In this case, apart from the presumption, there is a clear evidence adduced on the side of the plaintiff that a sum of Rs.1,20,000/- was lent for which Ex.A1 promissory note was executed and Ex.A2 title deed was deposited under Ex.A3 letter. The defence plea in this regard, as pointed out supra, is tantalizing. Therefore, the finding of the lower appellate Court that the defendant, on whom the burden of proving his defence case in the set of circumstances leading to the filing of the case, has not discharged his burden and he has failed to prove his defence theory cannot be interfered with as it cannot be termed either defective or infirm, much less perverse. Unless the finding of fact is proved to be perverse, in which case alone such question shall get elevated to the position of a substantial https://hcservices.ecourts.gov.in/hcservices/ question of law, the same cannot be interfered with in the second

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appeal. No substantial question of law is proved to have arisen for determination in this second appeal. Not even a question of law is shown to have been decided wrongly or erroneously by the lower appellate Court. There is no merit in the second appeal and the second appeal deserves dismissal.

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It must be noted that though the contractual rate of interest is 18%, the lower appellate Court has taken a lenient view and allowed only interest at the rate of 6% from the date of borrowal till realization. Though the respondent/defendant could have very well filed a cross-appeal or cross-objection, he has not done so. Since the lower appellate Court itself has shown indulgence in reducing interest, there cannot be any question of this Court showing indulgence mitigating the sufferings of the appellant/defendant by reducing interest holding the interest awarded to be unreasonable or exorbitant. The lower appellate Court has rightly held that the suit debt was secured by an equitable mortgage by deposit of title deeds and hence the respondent/plaintiff is entitled to a preliminary decree on mortgage for sale in respect of the property described in the plaint schedule. There is no ground to interfere with the well considered finding of the lower appellate Court. No substantial question of law is proved to have arisen in this case. Factual findings are not shown to be perverse. For all the reasons stated above this Court comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed.

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Accordingly, the second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.

Sd/ Asst. Registrar

/true copy/

Sub Asst.Registrar

gpa

The Principal District Judge, Salem

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The Subordinate Judge Salem.

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1 cc to M/s. Sarvabhuman Associates, Advocate, sr. 3203 1 cc to Mr.A. Radhakrishnan, Advocate, Sr. 2584

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S.A.No.519 of 2012 & M.P.No.1 of 2012

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UG (CO) https://hcservices.ecourts.gov.in/hcservices/ kk 19/3

S.Panner Selvam v. M.Ponmozhi

Case brief

What is this about?

What did the court decide?

S.Panner Selvam v. M.Ponmozhi

Case brief

What is this about?

What did the court decide?

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