The unsuccessful defendant before the Courts below is the revision petitioner.
2. The sum and substance of the case of the parties are absolutely necessary for the disposal of this civil revision petition.
3. The respondent herein as plaintiff filed a suit in O.S.No.272 of 2014 against the revision petitioner before the learned II Additional District Munsif, Ulundurpet for recovery of money. The rank of the parties before the trial Court is referred in this civil revision petition for the convenience of the Court. It is the case of the plaintiff that the defendant borrowed a sum of Rs.10,000/ on 16.04.1992 by executing the registered mortgage deed agreeing to repay the same with interest at the rate of 12% per annum. Despite repeated demand and lawyer notice the defendant failed to pay either towards principal or interest. Hence the plaintiff has filed the above suit for recovery of amount due under the mortgage deed with interest.
4. The defendant has resisted the said suit by filing written statement, contending that the defendant was working as Village Administrative Officer in Vilathikulam and he has admitted the amount borrowed by him from plaintiff. However it is contented that from 2001 onwards the defendant had paid upto Rs.6,000/- to the plaintiff on several dates. On 12.04.2004 the defendant had to give to Rs.8,500/- to the plaintiff and the defendant gave Rs.2,000/- in the month of April and for the remaining amount of Rs. 6,500/- as per the customs prevailed in the village, said amount was doubled and therefore the defendant had executed a pronote for Rs.13,000/- in favour of the plaintiff.
5. According to the defendant at the time of execution of pronote it is written in the said pronote that the suit mortgage deed has been discharged. At the time of execution of said pronote, the plaintiff has returned the suit mortgage deed to the defendant, but he refused to receive the same stating that he will receive it after discharging the pronote amount. But the plaintiff has wilfully filed the above suit on the basis of mortgage deed which was discharged. Hence the defendant is not liable to pay the suit amount hence he prayed to dismiss the suit.
6. The trial has commenced and on the side of the plaintiff he was examined as PW-1 and on his side Exhibits-A1 to A4 were marked. On the side of the defendant, he was examined as DW1 and DW4 documents were marked as Exs-B1 to B4.
7. The Learned Trial Judge upon considering oral and documentary evidences on the either side has decreed the suit by judgement and decree dated 22.07.2005 and thereby passed preliminary decree in favour of the plaintiff. As against the above preliminary decree, the defendant filed an appeal suit in A.S.No.41 of 2007 before the learned Principal Sub Court, Villupuram. The Learned Subordinate Judge has confirmed the preliminary decree of the trial Court and thereby dismissed the Appeal suit filed by the defendant by judgement and decree dated 19.06.2009.
8. Feeling aggrieved over the judgements and decrees of the Courts below, the present civil revision petition is filed by the defendant.
9. The learned counsel for revision petitioner attacked the Judgements of the Courts below, contending that the Courts below have committed serious error in decreeing the suit when the plaintiff has not produced the pronote executed by the defendant even after the defendant issued notice to produce the pronote. The failure to produce the pronote executed by the defendant by the plaintiff the Courts below ought to have drawn adverse inference against the plaintiff. But without doing so, decreed the suit is unsustainable in law and the same is liable to be set aside.
10. The learned counsel for the revision petitioner further submitted that the plaintiff over valued the suit claim at Rs.24,400/- when the principal amount borrowed by the defendant is Rs.10,000/- and Rs.14,400/- towards interest alone charged is highly exorbitant that too when mortgage was discharged. Hence, the learned counsel appealed this Court to allow this civil revision petition.
11. I heard Mr.A.Thiyagarajan, learned Senior Counsel for Mr.S.Ramesh Kumar, learned counsel for the petitioner. There is no representation on behalf of the respondent.
12. This Court has carefully considered the submission made on the side of the revision petitioner and perused the entire materials on record.
13. The execution of registered mortgage deed and the amount borrowed are admitted by the defendant. But it is the contention of the learned counsel for revision petitioner that the said mortgage was discharged at the time of execution of pronote and the pronote said to have executed by the defendant has not been produced by the plaintiff, despite issuance of notice to produce the said pronote.
14. In this case the only point for consideration has arisen before this Court is whether the non production of pronote could be the reason to draw an adverse inference against the plaintiff and the suit can be dismissed on the sole ground?. The plaintiff has admitted the receipt of Rs.6,000/- from the defendant, but according to him it was adjusted for the interest amount. Whereas the revision petitioner contented that the remittance of Rs.6,000/- is towards repayment of principal amount when the defendant has issued notice to the plaintiff to produce the pronote, it is the duty of the plaintiff to produce the same before the trial Court. The trial Court could have taken adverse inference against the plaintiff and ought to have dismissed the suit on that ground alone. The non consideration of the above aspect by the Courts below is a ground to inference with the concurrent findings of the Courts below.
15. In view of foregoing discussion, this Court is of the opinion that the Judgements and decrees of Courts below are liable to be set aside, accordingly it is set aside.
16. In the result, this civil revision petition is allowed by setting aside the judgment and decree passed in A.S.No.41 of 2007, dated 19.06.2009, on the file of the learned Principal Sub Court, Villupuram, confirming the judgment and decree passed in O.S.No.272 of 2004, dated 22.07.2005, on the file of the learned II Additional District Munsif Court, Ulundurpet. No costs. Consequently, connected miscellaneous petition is closed.
28.02.2017 vs Note:Issue order copy on 18.02.2019 Internet:Yes Index:Yes To
1. The Principal Sub Court, Villupuram.
2. The Additional District Munsif Court, Ulundurpet.
M.V.MURALIDARAN, J.
vs
Pre-Delivery order made in CRP(NPD)No.236 of 2010
and M.P.No.1 of 2010 28.02.2017