Madras High Court
Y.G. Srinivasan vs Kandan Mutual Benefit Fund No. 7 Menod ... on 15 July, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15 07 2015 CORAM: THE HONBLE SMT. JUSTICE PUSHPA SATHYANARAYANA S.A. No. 2 of 2009 and M.P. No. 1 of 2009 Y.G. Srinivasan .. Appellant vs. Kandan Mutual Benefit Fund No. 7 Menod Street Purasawakkam Chennai 7 .. Respondent Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 31.10.2007 passed by the Additional District Judge (Fast Track Court - V), Chennai, in A.S. No. 217 of 2007 partly reversing the judgment and decree dated 15.04.2004 passed by the III Assistant Judge, City Civil Court, Chennai, in O.S. No. 1425 of 2001. For Appellant : Mr. G. Appavu For Respondent : Mr. G. Ashokapathy for M/s Pass Associates JUDGMENT
The plaintiff in a suit for redemption of mortgage has preferred the instant Second Appeal against the judgment and decree dated 31.10.2007 passed by the learned Additional District Judge (Fast Track Court - V), Chennai, in A.S. No. 217 of 2007 partly reversing the judgment and decree dated 15.04.2004 passed by the learned III Assistant Judge, City Civil Court, Chennai, in O.S. No. 1425 of 2001.
2. The case of the plaintiff was that the suit property, which was allotted to him by the Tamil Nadu Housing Board by sale deed dated 19.5.1993, was originally mortgaged by him to the defendant under the mortgage deed Ex. A.1 dated 23.06.1994 for availing a loan of Rs.1 Lakh to be repaid in 79 monthly instalments with rate of interest at 22.8%. It is averred by the plaintiff that during the course of repayment, on 01.11.2000, the defendant informed him that a further sum of Rs.1,60,337.82 is due and liable. Alleging that his liability will be Rs.20,000/- only, the plaintiff filed the suit for redemption of the mortgage.
3. The defendant filed a written statement stating that in addition to the agreed rate of interest of 22.8%, the plaintiff is liable to pay interest on the amount in arrears by way of interest and that after giving credit to for all the payment, a sum of Rs.1,72,334.02 is due from the plaintiff. Therefore, the defendant prays for a decree for a sum of Rs.1,72.334.02 with interest at 22.8%.
4. The Trial Court, before which the parties examined themselves and marked documents, passed a decree for payment of Rs. 1,00,000/- with interest at 22.8% per annum from 23.6.1994 to 02.03.2001 and subsequently at 9% per annum. On appeal, the Lower Appellate Court, on appreciation of facts and law, allowed the same in part thereby modifying the decree and judgment of the trial Court and directed the plaintiff to pay a sum of Rs.1,75,889.02 towards the due loan amount including interest and other charges as per Ex. B.11 along with 9% simple interest per annum to the pending loan amount as on March 2001 for Rs.98,879.45 from the date of plaint till the passing of preliminary decree and thereafter, at the rate of 6% simple interest per annum to the above said balance loan amount till the entire payment. It is as against the said judgment and decree, the plaintiff has filed the present Second Appeal.
5. Heard the learned counsel appearing for the appellant as well as the learned counsel for the respondent and perused the records.
6. At the time of admission of this Second Appeal, the following questions of law were formulated for consideration:-
(a) Whether the Lower Courts are justified in relying the statement of Account Ex. B.11 which is not an extract under the provisions of Banker's Books Evidence Act 1891?
(b) Is not the appellant had paid the entire mortgage loan even before the final disposal of the suit and that the appellant is entitled to redeem the mortgage without any further deposit of amount?
(c) Whether the Lower Appellate Court is rectified in deciding the quantum of Rs.98,879.45 paise as the mortgage loan interest against Order 14 Rule 7 CPC?
7. The fact remains that the appellant / plaintiff availed mortgage loan of Rs.1 Lakh from the respondent / defendant on execution of necessary documents agreeing to repay the same in 79 equal monthly instalments with interest and there is no denial regarding the same.
8. During the course of argument, as there was a dispute regarding calculation, both the parties were directed to file memo of calculation regarding the payment of amount. Accordingly, the parties also filed the same. The appellant filed his calculation showing the balance amount payable as Rs.37,820/- while the respondent arrived at a sum of Rs.2,71,801.93 towards the balance amount to be paid by the plaintiff as on 15.6.2015.
9. As regards the preliminary decree in a suit for redemption, it would be relevant to refer to Order XXXIV Rule 7 CPC which deals with preliminary decree in redemption suit. Order XXXIV Rule 7 reads as follows:-
7. Preliminary decree in redemption suit.-- (1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree--
(a) ordering that an account be taken of what was due to the defendant at the date of such decree for --
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage security, together with interest thereon; or
(b) declaring the amount so due at that date; and
(c) directing --
(i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken ................. .................... ................ ................ ..................... ....................... ......................
(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interests, the defendant shall be entitled to apply for a final decree--
.............. .............. ................. ................
.............. .............. ................. ...............
10. The main contention of the learned counsel for the appellant is that Ex. B.11 statement of Account relied on by the Courts below is not an extract under the provisions of Banker's Books Evidence Act 1891 and hence, the decree passed by the Courts below based on Ex. B.11 cannot be sustained.
11. A perusal of the records would show that Ex. B.11 statement of account has been filed by the respondent / defendant through D.W.1. Except contending that Ex. B.11 is not an extract under the provisions of the Banker's Books Evidence Act, no specific averment has been made by the appellant / plaintiff pointing out any mistake or omission committed by the defendant in preparation of the above statement of account. Further more, neither the balance loan amount nor the interest is specifically disputed. In such circumstance, the Courts below have rightly relied on Ex. B.11.
12. The other contention made by the learned counsel for the appellant is with regard to the calculation. Disputing the calculation arrived at by the respondent, learned counsel submitted that the appellant had paid the entire mortgage loan even before the final disposal of the suit and hence, the appellant is entitled to redeem the mortgage without any further deposit of amount.
13. Perused the calculation submitted by the learned counsel for the parties. Though the appellant has shown a sum of Rs.37,820/- as balance amount to be paid, no reason or method has been followed in arriving at the same. On the contrary, the respondent has filed the memo of calculation as per order XXXIV Rule 11 CPC and has come to the conclusion that the appellant is liable to pay a sum of Rs.2,71,801.93 in total, as on 15.6.2015, which, in the considered opinion of this Court, appears to be correct. The appellant is unable to point out any error in the said calculation.
14. In view of the foregoing discussion, the appellant / plaintiff is directed to pay a sum of Rs. 2,71,801.93 till 15.6.2015 along with 6% per annum simple interest to the above said balance amount till the date of payment, to the defendant within a period of six months from the date of receipt of a copy of this judgment and thereafter, shall move before the trial Court for redemption of the mortgage document dated 23.6.1994 by filing appropriate application. The memo of calculation dated 01.6.2015 filed by the respondent shall form part of record. The questions are answered accordingly.
In fine, the Second Appeal is disposed of with the above modification and observation. However, in the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
15 07 2015 Index : Yes / No Internet : Yes / No gri PUSHPA SATHYANARAYANA, J.
(gri) To
1. Additional District Judge (Fast Track Court - V) Chennai
2. III Assistant Judge Chennai
3. Record Keeper V.R. Section High Court Chennai S.A. No. 2 of 2009 15 07 2015