2003 (7) TMI 737 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the mortgage-deed in dispute is a sham, ostensible, and without consideration, and is not duly attested.
2. Whether the defendant paid Rs. 1,000/- through cheque on 12-10-1960 to the plaintiff and wrote a document acknowledging the debt, thereby making the suit within limitation.
3. Relief sought by the plaintiff.

Detailed Analysis:

Issue 1: Whether the mortgage-deed in dispute is a sham, ostensible, and without consideration, and is not duly attested.
The defendant admitted the execution of the mortgage-deed dated 9-4-1949 but denied receipt of consideration and proper attestation. The trial court decided in favor of the plaintiff, holding that the mortgage-deed was executed by the defendant and bore his signatures. The appellate court upheld this finding, confirming that the plaintiff advanced a loan of Rs. 37,000/- to the defendant, who executed a simple mortgage to secure the repayment.

Issue 2: Whether the defendant paid Rs. 1,000/- through cheque on 12-10-1960 to the plaintiff and wrote a document acknowledging the debt, thereby making the suit within limitation.
The plaintiff claimed that the defendant paid Rs. 1,000/- and acknowledged the debt in writing on 11-12-1960, thus renewing the limitation period under Sections 18 and 19 of the Limitation Act, 1963. The trial court found in favor of the plaintiff, holding that the payment and the acknowledgment were proved, thus making the suit within the limitation period. However, the appellate court disagreed, finding that the plaintiff failed to prove the payment and the document's execution by the defendant, thus dismissing the suit as barred by limitation.

Reevaluation of Issue 2:
The High Court reexamined the evidence and found the defendant's testimony unreliable. The court noted the defendant's inconsistent statements and attempts to manipulate handwriting samples. The testimony of Kishan Chand, who witnessed the defendant writing the acknowledgment letter, was found credible. The court concluded that Ex.-1, the acknowledgment letter, was indeed written by the defendant, thereby invoking Section 18 of the Limitation Act and starting a fresh limitation period from the date of the acknowledgment.

Relief:
The High Court restored the trial court's judgment and decree, which had decreed the suit for Rs. 40,000/- with costs and pendente lite and future interest at 6% p.a. The court ordered that if the defendant fails to pay the decretal amount, the mortgaged property should be sold, and the proceeds applied towards the payment. If the sale proceeds are insufficient, the plaintiff can recover the balance from other properties and the person of the defendant.

Conclusion:
The appeal was allowed, the judgment of the learned single judge was set aside, and the trial court's judgment and decree were restored. The respondents were ordered to pay the costs throughout.