Madras High Court
T.Rajeshwari vs Dharmar on 31 March, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
A.S. (MD) No. 285 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S. (MD) No. 285 of 2021
and
C.M.P. (MD) Nos. 9896 and 11022 of 2021
T.Rajeshwari ... Appellant / Defendant
Vs.
Dharmar ... Respondent / Plaintiff
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
1908 against the judgment and decree of the learned Additional District
Judge, Ramanathapuram, dated 14.10.2019 in O.S. No. 51 of 2017.
For Petitioner : Mr.S.Sankar
For Respondent : Mr.M.Thirunavukkarasu
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A.S. (MD) No. 285 of 2021
JUDGMENT
This Appeal has been preferred challenging the judgment and decree of the learned Additional District Judge, Ramanathapuram, dated 14.10.2019 made in O.S. No. 51 of 2017.
2. The appellant is the defendant; the suit has been filed by the plaintiff for recovery of money for a sum of Rs.18,06,000/- (Rupees Eighteen Lakhs and Six Thousand only) along with the interest of principal sum of Rs.10,00,000/- (Rupees Ten Lakhs only) from the date of the suit till the date of the decree on the mortgage executed by the defendant; according to the case of the plaintiff, on 28.03.2014, the defendant availed a loan of Rs.10,00,000/- (Rupees Ten Lakhs only) from the plaintiff and executed the mortgage deed in favour of the plaintiff in respect of the suit property agreeing to repay the sum at the rate of Rs.2 per 100 within one year and discharge the mortgage; the said period for repayment is expired on 27.03.2015; since the defendant failed to discharge her liability and redeem _________ Page 2 of 10 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 285 of 2021 the mortgage, the plaintiff has filed the suit for getting preliminary decree for recovery of money along with interest.
3. The defendant resisted the suit by stating that the defendant has repaid the loan and there is no due to be paid to the plaintiff; despite her repayment, the plaintiff refused to discharge the mortgage deed and protracted the time; the plaintiff is engaged in financial business and real estate business; just in order to get the suit property sold to the plaintiff himself, he has filed the suit.
4. On the basis of the above pleadings, the learned trial Judge framed the following issues:
(i) Kjy;epiy jPh;g;ghiz bgWtjw;F thjp
jFjp cilatuh>
(ii) gpujpthjp mlkhd flid brYj;j
flikg;gl;ltuh>
(iii) jug;gpdh;fSf;F fpilf;ff;Toa ,ju
ghpfhuk; vd;d>
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A.S. (MD) No. 285 of 2021
5. During the course of trial, on the side of the plaintiff, one witness was examined as PW1 and Exs.A1 and A2 were marked. On the side of the defendant, two witnesses were examined as DW1 and DW2 and no document was marked.
6. At the conclusion of the trial, the learned Judge, considered the evidence available on record and passed the preliminary decree for recovery of a sum of Rs.18,06,000/- (Rupees Eighteen Lakhs and Six Thousand only) along with interest of Rs.10,00,000/- (Rupees Ten Lakhs only) at 9% per annum from the date of the suit till the date of the decree and 6% per annum from the date of the decree till the date of realization.
7. Aggrieved over that, the defendant has preferred this Appeal.
8. When the matter was taken up for final hearing on 02.03.2022, on the side of the appellant, no argument was advanced. On that day, the appeal was reserved for judgment. Thereafter, a re-open petition was filed and the _________ Page 4 of 10 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 285 of 2021 same was dismissed on 21.03.2022 and thereafter, clarification is sought with regard to the interest and the matter is posted today, the learned counsel for the respondent was present but nothing was argued on behalf of the appellant about the interest.
9. The learned counsel for the respondent submitted that the appellant / defendant had executed the registered mortgage deed and she can deny her liability. The very production of the mortgage deed itself would prove the transaction in accordance with Section 91 of the Indian Evidence Act, 1872. Despite it is contended by the appellant/defendant that she made repayment towards loan, no endorsement is made on the mortgage deed to substantiate the same. Excepting her own self-assertion and DW2 is said to have witnessed her alleged payment to the plaintiff, no documentary evidence is produced by the appellant. The learned trial Judge has rightly appreciated the evidence on record and passed the preliminary decree and it does not require any interference.
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10. Points for consideration:
"Whether the judgment of the trial Court in passing the preliminary decree as prayed, is fair and proper?"
11. The execution of the mortgage deed which has been marked as Ex.A1 is not denied. Even prior to the filing of the suit, the legal notice was sent by the respondent / plaintiff to the appellant / defendant on 02.07.2017. Even thereafter, no payment was made. The short contention of the appellant / defendant is that she had repaid the loan, but the respondent / plaintiff refused to discharge the mortgage and delayed with an intention to acquire the suit properties.
12. It is the specific contention of the appellant that she had paid both the principal amount and interest in front of one Malaisamy. The said Malaisamy is not a witness before the Court. The specific date, on which, the alleged repayment was made also was not mentioned. Excepting the _________ Page 6 of 10 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 285 of 2021 vague allegation as to the repayment and the alleged transaction, no other reliable evidence is produced to show that the appellant has made repayment either towards interest or towards principal. Despite the appellant has stated that within one year from the date of execution of the mortgage deed, she had repaid the amount and the respondent / plaintiff is said to have refused to discharge the mortgage, she has not taken any legal action against the respondent / plaintiff. Since Ex.A1 is a registered mortgage deed and the appellant/defendant did not deny the receipt of loan amount of Rs.10,00,000/- (Rupees Ten Lakhs only), it is right for the learned trial Judge to hold that the mortgage transaction is true. It has been stated already that the defendant has not proved the repayment as alleged by her. However, it is seen from the terms of the mortgage that the rate of interest for the loan amount is fixed at 24% per annum which is very excessive. This is beyond the maximum interest that can be imposed in such kind of secured loan. The learned trial Judge had allowed the interest at the rate of 24% per annum from the date of execution of the mortgage deed till the date of filing the suit as claimed by the respondent / plaintiff.
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13. As per Section 7 of the Money Lenders Act, interest chargeable on any loan should not exceed the rate of interest fixed by the Government by Notification from time to time. In pursuance of the above provision, a Government Order has been issued by the Tamilnadu Government in G.O.Ms.No.406 Co-operation dated 5th July 1979. As per the Government Order, the maximum interest that can be recoverable on secured loan shall not exceed 9% per annum and unsecured loan shall not exceed 12% per annum. In the case in hand, the appellant/defendant had availed the loan by mortgaging the suit property. In such grant of secured loan, the maximum interest as per the Government Order can be fixed only at the rate of 9% per annum.
14. Since the trial Judge has allowed the interest at the rate of 24% per annum which is in violation of Section 7 of the Money Lender's Act and the consequential Government Notification referred above, I feel that the interest should be modified in accordance with the above Government _________ Page 8 of 10 https://www.mhc.tn.gov.in/judis A.S. (MD) No. 285 of 2021 Order. Hence, it is appropriate to fix interest at the rate of 9% per annum from the date of executing the mortgage till the date of filing the suit and interest at 6% per annum from the date of decree till the date of realization. Thus point is answered.
In the result, this Appeal Suit is partly allowed. The judgment and decree passed in O.S. No. 51 of 2017 on the file of the learned Additional District Judge, Ramanathapuram, dated 14.10.2019 is modified to the effect that interest shall be payable at the rate of 9% per annum from the date of executing the mortgage till the date of filing of the suit and thereafter, from the date of decree till the date of realization interest shall be payable at the rate of 6% per annum. No costs. Consequently, connected Miscellaneous Petitions are closed.
31.03.2022
Index : Yes / No
Speaking Order : Yes / No
vji
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A.S. (MD) No. 285 of 2021
R.N.MANJULA, J.
vji
To
1. The learned Additional District Judge,
Ramanathapuram
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
A.S. (MD) No. 285 of 2021
and
C.M.P. (MD) Nos. 9896 and 11022 of 2021
31.03.2022
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