IN THE COURT OF THE VII ADDL. DISTRICT JUDGE (FAST TRACK OURT):
VISAKHAPATNAM
Present : Smt. S. Sarada Devi,
VII ADDL. DIST JUDGE (FTC)
VISAKHAPATNAM
Tuesday, this the 31st day of January, 2017
APPEAL SUIT NO.17/2016
Between:
Smt. Kandregula Adilakshmi, W/o late Appalanaidu, Hindu, aged 70 years, Cultivation, Resident of Haripalem Village, Atchyuthapuram Mandal, Visakhapatnam District.
… Appellant/Plaintiff And :
1. Smt. Darmireddy Nagamani, W/o Sathyamanaidu, Hindu, aged 50 years, Business, resident of Haripalem Village, Atchyuthapuram Mandal, Visakhapatnam District.
2. Smt. Nadipinti Simhachalam, W/o Kondayya, Hindu, aged 70 years, Business, resident of Haripalem Village, Atchyuthapuram Mandal, Visakhapatnam District.
…Respondents/Defendants
APPEAL FILED UNDER ORDER 41 RULE 1 OF CPC AGAINST THE DECREE AND JUDGMENT IN O.S.No.94/2012 DATED 30.09.2015 ON THE FILE OF SENIOR CIVIL
JUDGE AT YELAMANCHILI.
Between: Smt. Kandregula Adilakshmi, W/o late Appalanaidu, Hindu, aged 66 years, Cultivation, Caste by Gavara, R/o Haripalem Village, Atchuthapuram Mandal, Visakhapatnam District.
....Plaintiff
And:
1.Smt. Darmireddy Nagamani, W/o Sathyamanaidu, Hindu, aged 46 years, Business, resident of Haripalem Village, Atchuthapuram Mandal, Visakhapatnam District.
2. Nadipinti Simhachalam, W/o Kondayya, Hindu, aged 66 years, Business, resident of Haripalem Village, Atchuthapuram Mandal, Visakhapatnam District.
...defendants
This appeal coming on 21-10-2016 for final hearing before me in the presence of Sri Ravindranath Sahu, Advocate for the Appellant/Plaintiff and of Sri D.S.V.Paramdhamayya, Advocate for Respondents/Defendants and the appeal having stood over for consideration till this day, this Court delivered the following:
J U D G M E NT
1.Aggrieved by the decree and Judgment dtd 30-09-2015 in OS 94/2012 on the file of the
Court of learned Senior Civil Judge, Yelamanchili, the appellant/plaintiff has preferred this appeal.
2.The plaintiff herein has filed the suit in OS 94/2012 for recovery of an amount of
Rs.3,77,460/- along with suit costs and subsequent interest from the defendant basing on
Registered Mortgage deed dtd 14-07-2008.
3. The case of the plaintiff in brief as per the averments of the plaint is as follows:
The defendants 1 and 2 jointly borrowed a sum of Rs.2,00,000/- from the plaintiffs by mortgaging the plaint schedule property for Rs.1,00,000/- with an undertaking to repay the entire amount of Rs.2,00,000/- with interest @ 24% per annum for their family expenses and to discharge their sundry debts and also agreed to pay the interest on every year and pay the
principal amount within three years from the date of mortgage, and accordingly executed a
Registered Mortgage deed in favour of the plaintiff. On 15-09-2010 the 1st defendant paid an amount of Rs.2000/- to the plaintiff towards interest for Rs.1,00,000/- for which amount no charge was created under the said Registered Mortgage deed. On 15-10-2010 the 2nd defendant paid an amount of Rs.2000/- to the plaintiff towards interest for Rs.1,00,000/- evidencing of which the defendants 1 and 2 have executed one receipt each for the above said amounts and thereafter the defendants failed to repay the any amount to the plaintiff despite of repeated demands made by the plaintiff and postponed the same on one pretext on the other. Then on 01- 08-2011 the plaintiff got issued a legal notice to the defendants and the same was received by them, but neither they complied the demand nor gave any reply to it. Hence, the suit.
3. The 1st defendant filed written statement by denying all the material allegations made in the plaint by the plaintiff as false except the facts which are specifically mentioned therein and further stated that on 14-07-2008 the defendants borrowed only Rs.1,00,000/- and they also executed the suit mortgage deed for Rs.1,00,000/- only. The plaintiff did not pay Rs.2,00,000/- as alleged in the plaint, but the plaintiffs paid only Rs.1,00,000/- to the defendants and the same was registered before the Sub-Registrar, Yellamanchili. The defendants are illiterates and they have no any knowledge with regard to Registrations and transactions and as such they do not know the contents of the suit mortgage deed. In fact the defendants are under the impression that the mortgage deed was executed for Rs.1,00,000/- only which they received. But it seems that the plaintiff, attestors and the scribe are colluded together and they intentionally put the wrong amount in the mortgage deed without their knowledge and the alleged receipts mentioned in the plaint are not genuine and those receipts are forged and created by the plaintiff with the help of the scribe and attestors by taking advantage that these defendants are involved in another civil legal proceedings wherein the signatures and the thumb marks of the defendants 1 and 2 have been taken on the blank white papers before the advocate by stating that those signatures were needed for the purpose of issuance of reply notice in another matter and those papers containing the signatures and thumb marks of the defendants may be falsely created by the plaintiff as the above said receipts for Rs.2000/- each. Thus those receipts are not correct and genuine. The suits is barred by limitation and the suit is not maintainable under law.
The suit mortgage deed is not valid under law being not duly stamped as per article 41 and 49 of Indian Stamp Act. Contending so, they prayed for dismissal of the suit with costs.
5.The trial Court settled the following issues for trial:
1. Whether the defendants received only Rs.1,00,000/- under mortgage deed dtd 14-07- 2008 from the plaintiff and not supported by actual consideration of Rs.2,00,000/-?
2. Whether the defendants did not execute the repayment receipts for Rs.2,000/- each dtd 15-09-2010 and 15-10-2010 respectively and whether they are forged and fabricated?
3. Whether the court fee paid is proper?
4. Whether the plaintiff is entitled to the preliminary decree as prayed for:
5. To what relief?
6.During the course of trial, Pws1 to 3 were examined and Exs.A1 to A6 were got marked for the plaintiff. On the other hand, Dws1 to 3 were examined and Ex B1 was got marked for the defendants.
7.After full fledged trial and upon hearing both the parties the trial court partly decreed the suit by passing a preliminary decree against the defendants by holding that the plaintiff is entitled to recover only Rs.1,90,800/- basing on the suit mortgage deed dtd 14.07.2008 from the defendants 1 and 2 jointly and severally along with proportional suit costs and subsequent interest @ 12% per annum on the principal amount of Rs.1,00,000/- from the date of filing of the suit till the date of decree and thereafter @ 6% per annum till it's realisation. The remaining suit claim is dismissed and the redemption period is fixed as 60 days. Aggrieved by the same the Plaintiff/appellant has preferred this appeal on various grounds.
8. Heard. Besides submitting oral arguments the appellant/plaintiff has filed written arguments.
9.Points for determination in this appeal are:
1. Whether the plaintiff even lent Rs.1,00,000/- as unsecured debt under Ex.A1 registered
mortgage deed dtd 14.7.2008 and the same was received by the defendants besides
secured debt of Rs 1,00,000/- to which the lower Court passed a preliminary decree?
2. Whether the defendants have executed Exs.A5 and A6 repayment receipts for
Rs.2,000/- each dtd 15.9.2010 and 15.10.2010 respectively?
3. Whether the plaintiff is also entitled to recover unsecured debt of Rs 1,00,000/- with interest from the defendants as prayed for?
4. Whether there are any grounds to interfere with the preliminary decree and Judgment of the lower court?
10.POINT NO.1: The learned counsel for the plaintiff/appellant has raised the following points for consideration:
1. In the body of Ex.A1 mortgage deed an amount of Rs.2,00,000/- was noted in both numerical and words and the said amount was given by the plaintiff and the same was received by the defendants. Thus, the recitals of said document clearly proved that the defendants borrowed Rs.2,00,000/- from the plaintiff.
2. Out of Rs.2,00,000/- only for Rs.1,00,000/- mortgage deed was executed and the remaining Rs.1,00,000/- was received by the defendant as unsecured debt.
3. Stamp duty to be paid for Rs 1,00,000/- is Rs.3,420/- i.e., Rs.2,900/- for mortgage, Rs.500/- for registration fees and Rs.20/- towards user charges, but an amount of Rs.3,520 was paid indicating that remaining stamp duty amount of Rs100/- was paid for agreement.
4. There is over whelming evidence in favour of the plaintiff in proof of his case that the defendants received Rs.2,00,000/- but taking shelter under the complexity of the execution of the document the defendants denied receiving of Rs.2,00,000/-, taking advantage of the illiteracy and innocence of the plaintiff,
5. As per section 68 of Indian Evidence Act registration of a document itself is a proof of execution and no oral evidence shall be given in proof of the terms of such contract except the document itself.
6. As per section 90 of Indian Evidence Act the contents of Ex.A1 mortgage deed are to be read as a hole and as per Section 92 of Indian Evidence Act any amount of oral evidence cannot be considered when the document is filed to prove a transaction. Thus, the entire evidence of DW.1 which is supported by DWs 2 and 3 in consistent to the recitals of Ex.A1 mortgage deed cannot be looked into.
7. Dws2 and 3 who are the scribe and one of the attestors to Ex.A1 Mortgage deed are bound by the recitals of said mortgage deed, but they gave false evidence inconsistent to said deed and thereby they are liable for punishment for giving false evidence under section 191 and 199 of IPC.
8. As per sections 93 and 95 of Indian Evidence Act when the language of the document is plain, no oral evidence can be let in that it was meant to apply to such facts, but the document has to be understood in its plain and simple language and even when language used in a document on its face is ambiguous or defective no oral evidence can be let in. Thus, even on the said ground no evidential value be attributed to the evidence of DWs 1 to 3.
9. Title and contents of the title of Ex.A1 mortgage deed are irrelevant when the body of the said document clearly mentioned that Rs.2,00,000/- was given by the plaintiff and the defendants received the same.
10. The body recitals of Ex.A1 mortgage deed that the defendants received Rs.2,00,000/- from the plaintiff is supported by Ex.A5 and A6 receipts. But the lower court failed to appreciate the fundamental point that the signatures of the said receipt were not denied by the defendants and moreover, the plaintiff has proved the said receipts by examining PW.3.
11. The lower court appreciated Exs.A5 and A6 receipts erroneously ignoring the fundamental law that an acknowledgment of a debt is not a compulsorily registrable document and the recitals there in were proved through PW.3 and as such the same are binding on the defendants.
12. The discussion of the lower court regarding the issue No.1 is not based on actual evidence and erroneously came to a conclusion that Dws 2 and 3 turned hostile though in fact they gave false evidence as they are influenced for the reasons best known to them and gave false evidence.
13. No reliance be placed on the evidence of DW2 being false evidence.
14. The Sub-Registrar of Yelamanchili has not raised any objection at the time of registration of Ex.A1 mortgage deed because under one and the same document both secured and unsecured debt can be received.
15. No reply was issued to the lawyer's notice dtd 1.8.2011 got issued by the plaintiff, denying the fact of receipt of Rs.2,00,000/- by the defendants indicating that the defendants entertained the evil idea after filing of the suit with the support of the document writer and raised a false plea that they have received an amount of Rs.1,00,000/- but not Rs.2,00,000/-.
16. At the time of preparation of Ex.A1 document the defendants convinced the plaintiff that both the secured and unsecured debt can be clubbed together and a single document can be executed. But, now they denied the unsecured debt causing heavy loss to the plaintiff.
17. Ex.A1 Mortgage deed is indivisible so far as the secured and unsecured debts are concerned. Thus, the simple issue to be decided is whether the defendants have received the amount or not. But the trial court overlooked this vital aspect and erroneously decreed the suit to the extent of secured debt only, while dismissing the suit regarding the unsecured debt.
18. A registered document carries a presumption that the recitals are true and correct until and unless rebutted by the other side. The defendants never approached the court for rectification of the document especially the consideration part and even they have not given a reply to the lawyer's notice, but taking advantage of a small confusion in the document which is legally a tenable document the defendants are trying to avoid the unsecured debt.
19. The lower court's conclusion so far as issue No.2 is concerned is not accordance with the sound legal propositions.
20. Exs.A5 and A6 clearly mentioned about the secured and unsecured debts and the same was proved by the plaintiff through PW.3. But no evidence was placed by the defendants to discard the same.
11.With the above backdrop the learned counsel for the appellant/plaintiff has argued that the lower court has not appreciated the evidence available on record and probabilities of the case in right perspective but erroneously came to a conclusion that the defendants have proved their case that they have received only secured debt of Rs.1,00,000/- from the plaintiff and accordingly granted preliminary decree only to the extent of secured debt while dismissing the suit in part to the extent of unsecured debt of Rs.1,00,000/- by applying the wrong proposition of law and as such to the extent of dismissal of the suit in part is to be set aside and to allow the appeal having merits. Supporting his arguments he relied upon the following decisions:
1. 2015 ALT 147; 2.AIR 1959 AP Page 612; 3.AIR 1964 SC 859; 4.AIR 1969 AP Page 88; and
5. AIR 1997 SC 1288.
12.On the other hand the learned counsel for the defendants has argued that the judgment of the lower court is reasoned one being based on the evidence available on record, probabilities of the case and well established principles of law and as such no necessity arises for this court to interfere with the same and accordingly to confirm the same and to dismiss the appeal having no merits. He has further argued that the decisions cited above are no way applicable to the present facts of the case and as such the same may be ignored with due respects to the respective propositions of law laid down therein.
13.Keeping in mind the above contentions raised the both parties I have perused the entire material available on record. Before appreciating the evidence available on record it is apposite here to note that the plaintiff has filed the suit to recover the mortgage debt of Rs.1,90,800/- and also for recovery of unsecured debt amount of Rs.1,86,660/- covered under Ex.A1 registered Mortgage deed dtd 14.7.2008 from the defendants and for other reliefs alleging that the defendants borrowed secured debt of Rs 1,00,000/- and unsecured debt of Rs 1,00,000/- agreeing to repay the same with interest @24% p.a for every year and to pay the principal amount within three years and accordingly executed Ex A1 Registered Mortgage deed. The defendants never denied or disputed either the execution or the genuineness of Ex.A1
Registered Mortgage deed dated 14-7-2008 and on the other hand admitted the same including passing of secured debt of Rs.1,00,000/- while denying the passing of unsecured debt of
Rs.1,00,000/- through said mortgage deed by contending that they never received unsecured debt of Rs 1,00,000/-.
14.After appreciating the evidence available on record, the lower court allowed the suit in part by passing a preliminary decree in favour of the plaintiff holding that she is entitled to recover the secured debt of Rs.1,90,800/- covered under Ex.A1 suit mortgage deed dtd 14.7.2008 from the defendants 1 and 2 as referred to above. Even the trial court held that the court fee paid by the plaintiff for the suit amount is proper and correct under issue No.3. Even though said findings are adverse to them the defendants did not prefer any appeal or cross appeal. Thus the preliminary decree to the extent of secured debt covered under Ex.A1 mortgage deed passed by the lower court became final and interference of this court is not necessitated to the extent of said preliminary decree having gained finality. Thus, the subject matter of the present appeal is limited to the unsecured debt of Rs.1,00,000/- and interest as prayed for by the plaintiff.
15. The learned counsel for the plaintiff/appellant has argued that once the execution and genuineness of Ex.A1 Registered Mortgage deed is admitted including part of consideration, the defendants shall not deny the remaining part of consideration passed through said deed since they cannot blow hot and cold at the same time and in fact they are not permitted to let in oral evidence against the contents of said deed particularly to the extent of part consideration regarding unsecured debt as per law, since the documentary evidence excludes oral evidence particularly in the cases of registered deeds where under a presumption arises in favour of said deed while drawing my attention to the provisions of Section 68, 91 to 93 and 95 of Indian
Evidence Act and also relied upon the following decisions :
1. V.Chandramohan Vs. J.Venkata Gopal and others 1wherein His Lordship held in Para
No.9 are as follows:
“9. It was strongly argued on behalf of the 1 st defendant that the plaintiff did not pay 12015 (5) ALT 147 SB any consideration at all, under Ex.A1. This runs contrary to the recitals in Ex.A1. It is fairly established principle that no oral evidence can be adduced, to rebut the contents of a document. Exception, if at all, can be in cases where the very execution of the
document is disputed. Sections 91 and 92 of the Evidence Act get attracted in
situations of this nature.”
2. Sait Bolumal Dharmdas Firm, Bankers, represented by Partner Bolumal Dharmdas
Vijayawada vs. Gollapudi Venkatachelapathi Rao and another 2wherein Their Lordships held in Para No.7 are as follows:
“7. It is clear from the terms of Section 92 that evidence of any oral agreement or statement is excluded for any of the purposes indicated therein unless it falls under any of the provisos. The question is whether the instant case attracts proviso 6. In our judgment, this proviso could be called in aid only in cases where the terms of a
document are ambiguous. If the language of an instrument does not yield clear
meaning and is open to two interpretations, extrinsic evidence of surrounding
circumstances could be adduced. But if the meaning of the words is clear and
unequivocal and the intention of the parties is easily deducible therefrom it is not permissible to lead oral evidence to show that the document was not really what it purported to be.
In other words, when a document creates a doubt as to the meaning and the
intention of parties, oral evidence bearing on the surrounding circumstances could be looked into but extrinsic evidence is inadmissible to alter the legal character of an instrument. If a document on the face of it amounts to a sale deed, a party to it cannot be permitted to seek to establish that it was intended to operate only as a mortgage. It may be said that a construction of this proviso presents some difficulty. In the words
of macleod C. J. in Ganpathrao Appaji v. Bapu Tukaram, ILR 44 Bom 710: (AIR Bom
143) this is one of the provisos which is the despair of Judges and the joy of lawyers.”
3. Kamla Devi vs. Takhatmal and another 3wherein Their Lordships held in Para No.8 are as follows:
“8. Now coming to the construction of the bond, the first question raised by the
Additional Solicitor General is that the nature of the surety bond should be construed
the context of the surrounding circumstances, the circumstances under which the
surety came to be executed. In support of this contention he relied upon the judgment of the Special Committee in Raghunandan vs. Kirtya, AIR 1932 PC 131 at pp. 132-133. Therefore Judicial Committee was asked to construe surety bond. The question raised was who there under the terms of the bond the liability undertaken by the surety was to pay the entire decree amount or to pay the balance of the amount due under the decree after the mortgage security was realized upto the limit of the amount guaranteed under
the bond. The terms of the document were not clear and unambiguous. In those
circumstances Lord Tomlin speaking for the Board observed: “The bond must be considered in the light of the order directing the security to be given...
In those circumstances what is the meaning of the language employed in the
bond? These observations only apply the well settled rule of construction of documents to a surety bond. Sections 94 to 98 of the Indian Evidence Act are guidance in the
construction of documents; they also indicate when and under what circumstances
extrinsic evidence could be relied upon in construing the terms of a document. Section 94 of the Evidence Act lays down a rule of interpretation of the language of a document when it is plain and applies accurately to existing facts. It says that evidence may be given to show that it was not meant to apply to such facts. When a court is asked to
interpret a document, it looks as its language. If the language is clear and
unambiguous and applies accurately to existing facts, it shall accept the ordinary 2AIR 1959 AP 612 (V 46 C 174) DB 3AIR 1964 Supreme Court 859 (V 51 C 109) Three Judges Bench meaning, for the duty of the Court is not to delve deep into the intricacies of the human mind to ascertain one's undisclosed intention, but only to take the meaning of the words used by him, that is to say his expressed intentions. Sometimes when it is said that a Court should look into all the circumstances to find an author's intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But If the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document. The other sections in the said group of sections deal with ambiguities, peculiarities in expression and the inconsistencies
between the written words and the existing facts. In the instant case, no such
ambiguity or inconsistency exists as we shall demonstrate presently. The Privy
Council's case was one of ambiguity and the surrounding circumstances gave the clue to find out the real intention of the parties expressed by them.”
4. Miryala Venkataswarlu and Co and others vs. Battula Venkata Peraiah and
Venkateswarlu and Co and another 4wherein Their Lordship held in Para No 8 are as follows:
“8. Before these provisos are made applicable it must be ascertained whether the terms of the contract in respect of the date of delivery, the payment of price etc., have been specifically stated or whether there is any ambiguity therein. We do not think that a reading of the contract would throw any doubt or ambiguity as to the terms relating to the date of delivery. As has been said earlier, the date of delivery is any time before 25-11-1955 and the payment is to be made immediately after the weighment. The seller, it may be stated, undertakes to deliver these goods any day before that period and if he offers them the buyer must take them within that period. The buyer, however, cannot compel the seller to deliver the goods on any date before 25-11-1955. In other words while the seller has an option of delivery before the period specified the buyer has no right to compel him to do so within that period. The term is similar to that generally incorporated in mortgages with regard to redemption and is designed for the benefit of the mortgagor. It was so held by their Lordships of the Privy Council in Bakhtawar
Begam vs. Husaini Khanum, 26 Mad LJ 474 = (AIR 1914 PC 36) where they said that
ordinarily in the absence of a special condition entitling the mortgagor to redeem during the period for which the mortgage is agreed the right of redemption can only arise on the expiration of the specific period; but that there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property, such a provision being usually to the advantage of the mortgagor. This was followed by Subbarao C. J., (as he then was) in 1956 Andh LT 478 (481) = (AIR 1957 Andh Pra 30 at p. 31). After referring to the passage of Ameer Ali, J., who delivered the judgment of the Court in 26 Mad LJ 474 = (AIR 1914 PC 36) cited above, the learned Chief Justice observed thus:- “The well-established principle therefore, is that ordinarily the right to redeem cannot be exercised till the mortgage amount becomes due unless there is specific term conferring such a right on the mortgagor to redeem it earlier.” At p. 482 (of Andh LT) = (at p. 32 of AIR) after discussing the several decisions his Lordship summed up the position thus: “All the aforesaid decisions give the plain meaning of the word 'within' and its corresponding Telugu words indicate without any ambiguity that payment can be made on or before the date fixed.
….. This term pre-supposes the existence of a right in the mortgagors to redeem
earlier than the time fixed in the document. This imposes a condition that in case that
right was exercised the mortgagee should be allowed to continue in possession”.
5. M/s Hindustan Lever Ltd., Bombay vs. The Monopolies & Restrictive Trade Practices
Commission, New Delhi and others 5wherein Their Lordships held in Para Nos.14 and 15 4AIR 1969 AP 88 (V 56 C 29) DB 5AIR 1977 Supreme Court 1285 DB are as follows:
“14. In the Telco case (AIR 1977 SC 973), the agreement could not be understood
without reference to the actual facts to which they were sought to be applied. Those facts explained the nature of the special agreements for restriction or distribution of areas. In the case before us, the problem is entirely different. This is not a case in which certain terms of the agreement require to be explained by the facts to which they were meant to be applied. It is a clear case in which the meanings of the clauses are decisive. If these clauses are capable of being so used, on the meanings which appear unambiguously from them as to undoubtedly restrict trade, the intention to so use them to restrict trade could reasonably be inferred without any difficulty. Otherwise, why have them? No oral evidence could be led to deduce their meaning or to vary it in view of the provisions of Ss. 91 and 92 of the Evidence Act, the principles of which were, we think, rightly applied by the Commission. The Telco case, on the other hand,
was on in which extraneous evidence could be led under S.92, Proviso (6) of the
Evidence Act which may beset out here with S. 92 :-
“92. When the terms of any such contract, grant or other disposition of
property or any matter required by law to be reduced to the form of a document,have
been proved according to the last section, no evidence of any oral agreement or
statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest,, for the purpose of contradicting, varying adding to or subtracting from, its terms: Proviso (6) – Any fact may be proved which shows in what manner the language of a document is related to existing fact.”
15. The principle embodied in S. 92 (6) of the Evidence Act, which was applicable in Telco case (AIR 1977 SC 973) (supra) is not, for the reasons given above, applicable in the case now before us. Indeed, no attempt has been made by reference to any case law apart from the Telco case (supra), which we have distinguished above, to show that extraneous evidence could have been led here in order to apply S. 92 proviso (6) of the Evidence Act. In the Telco case this provision was not directly referred to, but, we think, that it could have been applied there. Thus, we think that the basic difficulty, placed before us by learned counsel for appellant, in the way of examining the plain meaning and effect of cls. 5 and 9 of the Distribution Stockists agreement does not
exist at all in the case now under consideration. We must therefore, proceed to
examine the meanings of these clauses from the point of view of what could be done
by the Company under them. If what may be done under these clauses could be a
restrictive practice as defined by the Act, it was enough to vitiate them. A clause having been introduced in an agreement entered into, as a part of the settled practice of the company, could be struck by the provisions of S. 2 (o) of the Act, set out above, quite apart from what is actually done under it. We do not think that any other question is really relevant or need be considered by us at all in such a case. It is not a case in which we could be taken through the oral evidence, as has been attempted to be done, because that is shut out by an application of provisions of Ss. 91 and 92 of the Evidence Actj, if all we need do is to interpret the agreement. We are unable to see why those provisions do not apply here.”
16.There is no quarrel regarding the proportions of law laid down in the above cited cases that no oral evidence can be adduced to rebut the contents of a document unless it falls under any of the provisosand exception, if at all, can be in cases where the very execution of the document is disputed and sections 91 and 92 of the Evidence Act get attracted in situations of this nature. Nowthe question falls for consideration is whether the facts of the case on hand fall under any of such exceptions. In the case on hand, the defendants though as executors admitted the execution and genuineness of Ex.A1 Registered Mortgage deed dated 14-07-2008 and also admitted passing of consideration only to the extent of secured debt of Rs.1,00,000/- but denied the passing of consideration to the extent of unsecured debt of Rs.1,00,000/- as alleged by the plaintiff by contending that they have executed Ex.A1 Mortgage deed only for
Rs.1,00,000/- by depositing of their title deeds after receipt of the same and in fact the plaintiff never paid and they never received the un-secured debt of Rs.1,00,000/- through said deed as alleged by the plaintiff and further contended that Exs.A5 and A6 Receipts dated 15-9-2010 and 15-1-2010 for Rs.2,000/- each are not genuine but they are fabricated documents while admitting their respective signatures on the said receipts and contending that the plaintiff has obtained the signed white papers and fabricated the same and pressed to the service.
17.Evidently, Ex.A1 Mortgage deed is a registered deed. Thus, a presumption arises under
Section 68 of Indian Evidence Act with regard to its execution and genuineness but said presumption is not a conclusive proof being rebuttable presumption. Thus, the contents, genuineness and execution of Ex.A1 Mortgage deed including passing of consideration is presumed to be true and correct until the same is rebutted by the defendants. Thus, the contention of the plaintiff that no oral evidence be permitted to let in by the defendants contra to the recitals of Ex.A1 being Registered Mortgage deed by virtue of Section 68 of Indian
Evidence Act holds no water since, unless the defendants are given an opportunity to let in their oral evidence in proof their case rebutting the case of the plaintiff there is on possibility for them to rebut the presumption in respect of Ex.A1 Mortgage deed. Thus, I ignored the said contention being not tenable and sustainable in the eye of law.
18.There is no dispute that as per section 91 to 93 and 95 if read together documentary evidence excludes oral evidence in cases where the contracts etc which reduced into writing by way of registered deed and contents therein are in plain language without any ambiguity, but said provisions are not conclusive provisions having provisos as laid down in the cases cited above by the plaintiff herself. As per proviso no 6 of 92 of Indian Evidence Act oral evidence is permitted to prove any fact which shows in what manner the language of a document is related to existing fact. Thus in the case on hand with regard to passing of unsecured consideration being disputed by the defendants as executors is a fact to be proved as in the said Ex A1
Mortgage deed and thereby they are permitted to let in oral evidence to prove the same.
19.In the case on hand evidently the preamble of Ex.A1 Mortgage deed shows that the said mortgage deed was executed only for Rs.1,00,000/- with interest at Rs.2/- per hundred per year and the said mortgage deed is simple mortgage by depositing title deeds without possession, whereas in the body at Page No.2 of said deed it is mentioned that the consideration is
Rs.2,00,000/-. Thus, definitely there is an ambiguity in the said deed with regard to quantum of consideration. According to plaintiff, the defendants executed Ex.A1 registered sale deed by receiving Rs.1,00,000/- towards secured debt and Rs.1,00,000/- as unsecured debt totaling to
Rs.2,00,000/- with interest @ 24%, agreeing to repay the agreed interest by the end of every year and to repay the principal within three years from the date of execution of said deed. But, in Ex.A1 Registered deed there are no such recitals as alleged by the plaintiff except stating in the body of Ex.A1 Registered sale deed that the first defendant received Rs.2,00,000/- at the time of execution of said sale deed which is seriously disputed by the defendants particularly regarding the unsecured debt of Rs.1,00,000/-.
20.In order to prove their case as contended by them that the consideration for Ex.A1
Mortgage deed is only Rs.1,00,000/- as secured debt, the defendants got examined Dw 2, the scribe and Dw3 one of the attestor besides examining the first defendant herself as D.W.1.In her chief examination by way of chief affidavit the evidence of D.W.1 is nothing but replica of her written statement and as such no much discussion is required in respect of her chief examination. Even nothing worthwhile could be elicited by the plaintiff discrediting her evidence and supporting his case. That apart D.W.s 2 and 3 have clearly supported the case of defendants. D.W.2 is the scribe of Ex.A1 Registered Mortgage deed and supported the case of defendants by stating that on 14-07-2008 the plaintiff lent only an amount of Rs.1,00,000/- to the defendants under Ex.A1 and that he prepared said deed on the instructions of both the parties only for Rs.1,00,000/- as the same was passed as consideration from the plaintiff to the defendant in his presence. He in clear and categorical terms further stated that it was mistakenly mentioned as Rs.2,00,000/- instead of Rs.1,00,000/- in the body of Ex A1 mortgage deed and that said mistake might have been caused unintentionally since the said amount was noted in the model document which was downloaded for preparation of Ex.A1 Mortgage deed and the same might have been crept in Ex.A1 Mortgage deed and the said mistake was forgotten to be corrected and that later on also it could not be rectified as he could not read over its contents to the parties to Ex.A1 due to lack of time.
21.Even the evidence of D.W.3 one of the attestors of Ex.A1 Mortgage deed shows that
Ex.A1 was prepared in his presence for Rs.1,00,000/- since the same was passed as consideration from the plaintiff to the defendants while stating that the contents therein were read over at the time of his attestation.
22. D.W.s.2 and 3 were also cross-examined at length and nothing worthwhile could be elicited by the plaintiff from their respective mouths discrediting their evidence while establishing the plaintiff's case. Thus evidently Dws 2 and 3 gave their evidence not against the recitals of Ex A1 mortgage deed but they have explained the reason for the ambiguity that was crept in the said deed regarding the disputed consideration. Thus they can not be labled as hostile witnesses as held by trial court or their evidence can not be treated as false evidence as contended by the plaintiff but their evidence is in natural manner. At this juncture it is also pertinent to note that on the other hand, the learned counsel for plaintiff while cross-examining
D.W.1 suggested her that D.W.1 further borrowed an amount of Rs.1,00,000/- without executing any mortgage and again at an other place he suggested D.W.1 that an other amount of
Rs.1,00,000/- from the plaintiff separately apart from Rs.1,00,000/- under Ex.A1 Mortgage deed was passed. The said suggestions themselves indicate that the plaintiff paid only
Rs.1,00,000/- under Ex.A1 Mortgage deed and paid an other Rs.1,00,000/- separately from
Ex.A1 Registered Mortgage deed and the same was received by the defendants which is not the case of plaintiff in her plaint. All the circumstances if read together highly probablise the defendants' case and improbablise the plaintiff's case.
23.Be that as it may, on the other hand to prove her case the plaintiff got examined an other attestor as P.W.1. He has supported the case of plaintiff, but he is not an independent witness but an interested witness since Pw1 is his maternal aunt. But on the said ground his evidence cannot be thrown out but shall be appreciated with high degree of care and caution. Though,
P.W.2 has supported the case of plaintiff in her chief examination but has stated that he does not know the details of Ex.A1 Mortgage deed on which he signed being an illiterate and further stated that he has no visiting terms with the defendants but closely related to P.W.1. When,
P.W.2 himself has stated that he is an illiterate and does not know the recitals of Ex.A1
Mortgage deed it is not safe to rely upon his evidence particularly to the extent of disputed unsecured debt of Rs.1,00,000/- more particularly when he is closely related to P.W.1 having no visiting terms with the defendants and as such no credence be attributed to his evidence and thereby his evidence can safely be deleted from out of consideration. Once, the evidence of
Pw2 is deleted form out of consideration there is no corroborative evidence available on record supporting the case of plaintiff except her own ipsi-dexit statement of P.W.1.
24. For the sake of argument, even if the evidence of P.W.2 is believed as gospel truth we should not forget the fact that on the other hand the case of defendants is also supported by
Dws2 and 3 who are no other than the scribe and other attesting witness of Ex.A1 Mortgage deed and moreover who are independent witnesses. Thus, the respective cases of both the parties are equivalently corroborated by their respective evidences. Under these circumstances, the respective cases are to be assessed under probabilities of the case, since it is needless to say that the suits in civil nature can be disposed-of basing on the probabilities of the case. Let us see, the circumstances of the case.
25.No prudent man enter into a registered mortgage deed regarding the unsecured debt coupled with the secured debt. Even, if the same was happened in extra ordinary circumstances definitely the same said facts will be reflected in such deed in clear and categorical terms, but in the case on hand evidently there are no specific recitals mentioning about the unsecured debt of Rs.1,00,000/- in Ex.A1 Mortgage deed. I do agree there is no law barring passing of consideration of unsecured debt along with the secured debt in a mortgage deed. But in such case there must be specific recitals to that effect showing the specific details of secured and unsecured debts. But surprisingly in the case on hand in Ex A1 Mortgage deed there are no such specific recitals about passing of unsecured debt of Rs.1,000,000/- specifically as alleged by the plaintiff. Moreover, the plaintiff except examining the interested witness more particularly an illiterate as an attestor as P.W.2 whose evidence was discredited by the defendants as per the discussion held supra, the plaintiff did not choose to examine either it's scribe or the other attestor who were examined by the defendants as D.ws.2 and 3 and whose evidence is remained unshaken even after due cross-examination with regard to non passing of consideration of Rs.1,00,000/- as unsecured debt from the plaintiff to the defendants. Thus, all these circumstances highly probablise the case of defendants than that of plaintiff. Hence, without any hesitation I hold that the defendants have established that no unsecured debt of
Rs.1,00,000/- was passed from the plaintiff to them under Ex.A1 Mortgage deed as alleged by the plaintiff. This point is answered in favour of the defendants and against the plaintiff.
26.POINT No.2:- I do agree as pointed out by the learned counsel for the plaintiff the defendants 1 and 2 have admitted their respective signatures on Exs.A5 and A6 receipts while contending that the learned counsel has obtained their respective signatures on blank white papers stating that they are required to settle in another matter, but the plaintiff got fabricated the same and pressed into service and as such they are not binding on them. Though, their respective signatures of the defendants 1 and 2 are admitted on Exs.A5 andA6, when the defendants denied their execution and genuineness burden lies on the plaintiff to prove their execution and genuineness as per settled law. In order to prove the same the plaintiff got examined one of the attestor of Ex.A5 an A6 receipts as P.W.3. He has supported the case of plaintiff in this regard by stating that the first and second defendants paid Rs.2,000/- each on the respective dates dated 15-9-2010 and 15-10-2010 as they paid Rs.2,000/- each on the respective dates towards interest for secured debt of Rs.1,00,000/- and unsecured debt of
Rs.1,00,000/- and accordingly the plaintiff has obtained said receipts. In his cross-examination he has clearly stated that he is a cultivating tenant of the plaintiff in which case there is every possibility of giving his evidence under undue influence since the plaintiff as landlord occupies dominant position. For the reasons best known to her the plaintiff did not choose to examine the other attestor or the scribe.
27.Ex.A5 Receipt dated 15-09-2010 contains the signature of the first defendant and Ex A6
Receipt dtd 15-10-2010 contains the signature of the 2nd defendant with the recitals that they paid Rs.2,000/- each towards interest due for the unsecured debt of Rs.1,00,000/- and secured debt of Rs 1,00,000/- stating that they have received unsecured debt of Rs.1,00,000/- and secured debt of Rs.1,00,000/- totaling to Rs 2,00,000/- under Ex A1 Mortgage deed which is not reflected in the said deed. No explanation is given by the plaintiff as to why the first and second defendants paid Rs.2,000/- each only towards interest for the un-secured and secured debts of Rs.1,00,000/- each covered under Ex.A1 Mortgage deed when the recitals of said
Mortgage deed shows that the defendants as mortgagors shall pay interest on the debt received by them irrespective of quantum by the end of each year. For the sake of argument even if it is believed that the plaintiff has obtained the respective receipts as acknowledgments for extension of limitation as per Section 18 of Limitation Act by that time the stipulated time of three years is not yet completed by the date of obtaining said receipts since Ex.A1 Mortgage deed was executed on 14-03-2008 and the limitation of three years will be completed by 14-07- 2011. Thus, as argued by the learned counsel for the plaintiff that there is no possibility of obtaining of the said receipts under Ex.A5 and A6 by the plaintiff for extension of limitation.
All these circumstances highly probablise the case of defendants that the plaintiff has obtained signed blank papers from them and fabricated the same only to legalize Ex.A1 Mortgage deed with regard to the alleged unsecured debt of Rs.1,00,000/- but not for any other purpose. Thus,
I hold that Exs.A5 and A6 are not genuine but fabricated documents. This point is also answered against the plaintiff and in favour of the defendants.
28. POINT No.3:- As per the discussion held supra the plaintiff has failed to establish that she lent Rs.1,00,000/- towards unsecured debt to the defendants and the same was received by them and executed Ex.A1 Mortgage deed. Thus, the plaintiff is not entitled for decree with regard to unsecured debt of Rs.1,00,000/- as prayed for as rightly held by Trial Court. This point is answered automatically against the plaintiff.
29.POINT NO.4 :- Since the findings of this Court are at par with that of trial Court no necessity arises for this Court to interfere with the preliminary decree and judgment of the trial court and the same is confirmed dismissing the appeal having no merits.
30.In the result, the appeal is dismissed as devoid of merits confirming the Decree and
Judgment dated 30-9-2015 in OS.94/2012 on the file of the Court of learned Senior Civil Judge at Yelamanchili. Both the parties are directed to bear their own costs.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court on this the 31st day of January, 2017.
VII Addl. District Judge, (FTC) Visakhapatnam.
APPENDIX OF EVIDENCE
-NIL-
VII ADJ (FTC)/VSP
Date of presentation: 18-01-2016Date of filing;28-01-2016
IN THE COURT OF THE VII ADDL. DISTRICT JUDGE (FAST TRACK OURT):
VISAKHAPATNAM
Present : Smt. S. Sarada Devi,
VII ADDL. DIST JUDGE (FTC)
VISAKHAPATNAM
Tuesday, this the 31st day of January, 2017
APPEAL SUIT NO.17/2016
Between:
Smt. Kandregula Adilakshmi, W/o late Appalanaidu, Hindu, aged 70 years, Cultivation, Resident of Haripalem Village, Atchyuthapuram Mandal, Visakhapatnam District.
… Appellant/Plaintiff And :
1. Smt. Darmireddy Nagamani, W/o Sathyamanaidu, Hindu, aged 50 years, Business, resident of Haripalem Village, Atchyuthapuram Mandal, Visakhapatnam District.
2. Smt. Nadipinti Simhachalam, W/o Kondayya, Hindu, aged 70 years, Business, resident of Haripalem Village, Atchyuthapuram Mandal, Visakhapatnam District. …Respondents/Defendants
APPEAL FILED UNDER ORDER 41 RULE 1 OF CPC AGAINST THE DECREE AND JUDGMENT IN O.S.No.94/2012 DATED 30.09.2015 ON THE FILE OF
SENIOR CIVIL JUDGE AT YELAMANCHILI.
Between:
Smt. Kandregula Adilakshmi, W/o late Appalanaidu, Hindu, aged 66 years, Cultivation, Caste by Gavara, R/o Haripalem Village, Atchuthapuram Mandal, Visakhapatnam District.
....Plaintiff
And:
1.Smt. Darmireddy Nagamani, W/o Sathyamanaidu, Hindu, aged 46 years, Business, resident of Haripalem Village, Atchuthapuram Mandal, Visakhapatnam District.
2. Nadipinti Simhachalam, W/o Kondayya, Hindu, aged 66 years, Business, resident of Haripalem Village, Atchuthapuram Mandal, Visakhapatnam District. ….Defendants.
This is an appeal filed by the Appellant/plaintiff to set aside the decree and judgment dt.30-09-2015 in OS No.94/2012 on the file of the
Senior Civil Judge's Court, Yellamanchili and allow the same with costs
throughout.
The plaintiff herein has filed the suit in OS 94/2012 for recovery of an amount of Rs.3,77,460/- along with suit costs and subsequent interest from the defendant basing on Registered Mortgage deed dtd 14- 07-2008. The Value of the appeal for the purpose of court fee and jurisdiction is Rs.2,68,860/- and a court fee of Rs.5,126/- is paid under Sect.49 Rule 1 (c) of schedule A.P.C.F and S.V.Act.
This appeal coming on 21-10-2016 for final hearing before me in the presence of Sri Ravindranath Sahu, Advocate for the Appellant/Plaintiff and of Sri D.S.V.Paramdhamayya, Advocate for Respondents/Defendants and the appeal having stood over for consideration till this day, this Court doth order and:-
D E C R E E
1. that the appeal be and the same is hereby dismissed as devoid of merits confirming the Decree and Judgment dated 30-9-2015 in
OS.94/2012 on the file of the Court of learned Senior Civil Judge at
Yelamanchili.
2. that the both parties are hereby directed to bear their own costs.
Given under my hand and the seal of the court, this the 31st day of January, 2017.
(For S.Sarada Devi)
VI ADDL. DISTRICT JUDGE
FAC VII ADDL.DISTRICT JUDGE,
VISAKHAPATNAM.
MEMORANDUM OF COSTS
FOR APPELLANT: FOR RESPONDENT:
VakalatRs. 2-00 -No costs memo is filed- Stamp on plaint:Rs.5,226-00 Process fees:Rs.110-00 Advocate Fees:Rs.9,766-00 Jr.Advocate Fees: Rs.3,255-00 Typing charges :Rs. 100-00 Costs certified : Rs.18,459-00 (For S.Sarada Devi)
VI ADDL. DISTRICT JUDGE
FAC VII ADDL.DISTR. JUDGE,
VISAKHAPATNAM.