Raj Kumar vs Jagdish

Dr. Ravi Ranjan, J

This appeal is directed against the Judgment and decree date 09.08.2018 passed by the Additional District Judge, Sonepat, in Civil Appeal No.17 RBT

of 2015/2017 by which he has allowed the appeal setting aside the Judgment and decree dated 18.08.2015 passed by Civil Judge (Jr.Divn.) and though

he has not disturbed the finding that the mortgage deed Ex.P1 is inadmissible in evidence under Section 49 of the Registration Act, 1908 (hereinafter

to be referred as the 'Act') owing to its non-registration, however, has held that the transaction of Rs.2 Lakh from plaintiff to the defendant on

05.11.2008 stands established and therefore, the plaintiff has been found to have a right to recover such amount alongwith reasonable interest at the

rate of 12% per annum from 05.11.2008 till 09.08.2018, and future interest at the rate of 6% per annum till payment of the amount in favour of the

plaintiff.

Brief fact of the case is as follows:

The civil suit bearing No.785 of 2010 was filed by the plaintiff/respondent for recovery of Rs.2 Lakh alongwith interest at the rate of 24% per

annum from the date of its payment to the defendant till its actual reasliation. According to the plaintiff, the defendant is the recorded owner of 1/24

share of the suit property in revenue estate of Gohana, Tehsil Gohana, District Sonepat. It is further alleged that the defendant had taken Rs.2 Lakh

from plaintiff as loan to meet out his domestic needs and in return he mortgaged the suit property in his name for two years as a security to the loan

amount. An agreement to mortgage the aforesaid land in favour of plaintiff was also executed by the defendant in presence of a witness. A receipt

was also given by the defendant to the plaintiff for receiving an amount of Rs.2 Lakh. However, one of the terms of the agreement between the

parties to the suit was that in case the defendant does not pay back the mortgaged money to the plaintiff, he would be entitled to get the sale deed

executed and registered in his favour of the land which is subject matter of the mortgage or he would be entitled to recover the loan amount through

the process of Court. It has been alleged that even after lapse of two years from the date of execution of agreement dated 05.11.2008, the defendant

was not able to pay back a single penny to the plaintiff. Hence, the suit for recovery was filed.

The defendant appeared and contested the suit by filing a written statement taking a stand that neither any amount was borrowed from the plaintiff

nor was any land mortgaged by him on 05.11.2008 vide any instrument of mortgage. The very execution of mortgage deed has been denied. It has

been averred in the written statement that the plaintiff has forged the document and placed the same on record.

The trial Court, on appreciation of the rival pleadings framed following issues:

Whether the plaintiff is entitled to a decree for recovery as well as consequential relief as prayed for?OPP

Whether the suit of the plaintiff is not maintainable in the present form?OPD

Whether the plaintiff has no locus standi to file the present suit?OPD

Relief.

The plaintiff has examined himself as PW1 and one Rajeswar Malik, Advocate and Notary Public, Gohana, to prove the mortgage deed Ex.P1 and

receipt Ex.P2, as PW2. The attesting witness to the mortgage deed, viz., Surender Kumar, has been examined as PW3.

The plaintiff also tendered jamabandi of the land of the defendant as Ex.PX However, the defendant did not lead any evidence at all.

The trial Court, after considering the materials available on record, decided issue no.1 against the plaintiff and issues no.2 and 3 against the

defendant.

Issue no.1 has been decided against the plaintiff dismissing the suit for the reason that the mortgage deed executed by the defendant in favour of

plaintiff as a security to loan transaction mandatorily required to be registered under the Act which was not done by the plaintiff. As such, the suit was

dismissed.

The Judgment and decree of the trial Court was put to challenge by the plaintiff before the Ist Appellate Court. The Ist Appellate Court, after hearing

the parties, came to the conclusion that even though the mortgage deed, i.e., Ex.P1 would be inadmissible in evidence as per Section 49 of the Act,

owing to its non-registration, however, it is cogently established from the testimony of PW1 Jagdish (plaintiff) and PW3 Surender (attesting witness to

the mortgage deed), that the defendant had taken a loan of Rs.2 Lakh from the plaintiff on 05.11.2008, which stands substantiated by the receipt

Ex.P2. It is not the case of the defendant that he has repaid the loan amount to the plaintiff. Thus, the appeal was allowed and Judgement and decree

was set aside holding that the plaintiff is entitled to recover amount of Rs.2 Lakh from the defendant alongwith interest at the rate of 12% per annum

from the date of execution of the money receipt/mortgage deed, i.e., 05.11.2008 till the date of Judgement and future interest at the rate of 6% per

annum till final payment of the amount.

Hence the present appeal has been preferred by the defendant/appellant.

Learned counsel appearing for the appellant has vehemently argued before this Court that the defendant/appellant has denied the transaction of

Rs.2 Lakh as he has not taken any loan from the plaintiff. He has further denied having put any signature either on the mortgage deed or money

receipt. In view of the denial by the defendant, it was the duty of the plaintiff to request the trial Court to appoint an expert to establish as to whether

the signature on the mortgage deed or the money receipt is of the defendant or not. In the absence of that, it is urged, that the appeal should not have

been allowed by the Ist Appellate Court.

However, I do not find any force in the submission made on behalf of the appellant for the following reasons:

The case of the plaintiff is that on 05.11.2008 Rs.2 Lakh was paid to the defendant by him in the presence of a witness who had also signed as an

attesting witness on the mortgage deed and a receipt acknowledging such money transaction was also given by the defendant to the plaintiff at that

point of time and on the same date the mortgage deed and money receipt was affidavited before the Notary public. The attesting witness has been

examined as PW3 who has supported the case of the plaintiff and has stated that in his presence the signature was put by the defendant on the

mortgage deed as well as on the money receipt and he has also supported the money transaction of which he is also a witness. That apart, the Notary

public, before whom the documents were affidavited, has also been examined as PW2 and he has supported such affidavit. Thus, in my considered

view, the onus was discharged by the plaintiff and now it was the turn of defendant to prove it otherwise because it was the defendant who had

questioned his signature on the documents. In these facts and circumstances, the defendant could have moved before the trial Court for appointing an

expert so that the dispute regarding putting his signature could have been resolved but he did not have any courage to do that. Not only that, infact no

evidence has been led by the defendant at all.

It is next contended by the appellant that there is no condition in the mortgage deed that the plaintiff would be entitled to recover the amount if the

defendant fails to pay back the loan amount. Such limb of submission raised on behalf of the appellant is noted only to be rejected for the reason that

even if it is not written in the mortgage deed that the plaintiff would be entitled to recover the loan amount,that would make no difference if it is

established that loan was given to the defendant and a time frame was also given for returning the same. Even if such term and condition is not in the

mortgage deed, a person who has given loan would be entitled to recover it in accordance with law through the process of Court.

By way of last resort it is submitted on behalf of the appellant that once Ex.P1 has been found to be inadmissible in evidence in view of the fact that

it was not a registered, the receipt should also be rejected as such. Therefore, the plaintiff should not be held to be entitled to recover the loan amount.

This limb of argument is also not tenable for the reason that the alleged mortgage deed would not be admissible for the purpose of the mortgage of the

land in view of his mandatory registration required under Section 49 of the Act but the transaction of money by way of loan to defendant is proved by

the witnesses also and a receipt thereof is there already, in such a case the right of the person who has advanced loan to recover the same cannot be

ousted for the said reason as he would always be entitled to recover the same in accordance with law and through the process of Court. The receipt,

which is evidence of transaction of money, can not be held to be inadmissible as the same was not required mandatorily to be registered under the

Act.

Having given anxious consideration of the aforesaid facts and circumstances, in my considered view, it would be very difficult to accept the

aforesaid submission made on behalf of the appellant/defendant. In the result, this appeal, being devoid of any merit, is dismissed.