9911796707
TMI Blog2003 (9) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... are the respondents herein, have obtained a loan of Rs. 9,00,000 from the applicant by executing a mortgage deed, scribed in Telugu, for expansion of their business and clearing of their debts, and that the said amount was paid to the executants in two spells - Rs. 5,00,000 by way of Cheque No. 417109, dated 10-11-1994 and Rs. 4,00,000 by way of Cheque No. 417829, dated 2-12-1994. It is further stated that the loanees while acknowledging receipt of the loan amount, paid an amount of Rs. 22,500 towards interest for the period from 10-11-1994 to 9-12-1994 by way of Cheque No. 417285, dated 6-12-1994. According to the applicant, as per the information furnished in the list of debtors/statement of affairs/statement of account by the ex-partner of the company in liquidation, the respondents have to pay the applicant a sum of Rs. 14,55,750 as on 29-3-1997. It is their further case that the notices sent to the respondents demanding the amount amounts due and payable, were served on respondent Nos. 1, 3, 4 and 5 and while the notices in respect of respondent Nos. 2 and 6 returned unserved, and that till the date of filing of this application, the respondents have not made any payment, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is office and marked documents Exs. A-1 to A7. No witness was examined on behalf of the respondents nor any document was marked nor have they chosen to cross-examine the witness of the applicant. 4. Heard the learned counsel for the Official Liquidator and the learned counsel for the respondents. 5. The learned counsel for the Official Liquidator would submit that late Shri Narsimhulu Chetty, late Shri Nanda Gopal Chetty and the respon-dents herein have taken a sum of Rs. 9,00,000 from the applicant as loan for developing their family business by executing Ex. A1, mortgage deed, written in Telugu, in favour of the applicant. According to him, the whole of the loan amount mentioned in Ex. A1, was paid to the respondents in two spells, Rs. 5,00,000 by way of cheque No. 417109, dated 10-11-1994 and the balance sum of Rs. 4,00,000, by way of cheque No. 417829, dated 2-12-1994, and the respondents have also acknowledged the receipt thereof. The learned counsel further submits that the respondents having acknowledged receipt of the loan amount, also paid an amount of Rs. 22,500 by way of cheque No. 417285, dated 6-12-1994, towards interest for the period 10-11-1994 to 9-12-1994, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest for the period 10-11-1994 to 9-12-1994, and as such, are due and payable to the applicant in sum of Rs. 14,55,750 along with interest thereon at the rate of 18 per cent per annum, apart from filing affidavit in lieu of chief of the assistant working in the Office of the Official Liquidator have marked documents Exs. A1 to A7. Ex.A1, which is in Telugu, is the deed of mortgage, dated 9-11-1994, and is registered before the Sub-Registrar, Palamaner. It is executed by the respondents in favour of the applicant. The contents of Ex.A1 would disclose that the respondents have obtained loan of Rs. 9,00,000 from the applicant for developing their business and clearing off their debts by mortgaging their properties mentioned under schedules A, B and C, and undertaking to pay interest thereon at the rate of 30 per cent per annum. The signatures of all the respondents, including that of late Shri S. Narasimhulu Chetty and late Shri S. Nanda Gopal Chetty, do find on each page of the mortgage deed, which runs into 15 pages. A reading of the contents on the backside of page No. 4 of the mortgage deed, which is marked as Ex. A2, would disclose that the respondents have given a cheque fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have not only let in any evidence, but also have not chosen to cross-examine the witness of the Official Liquidator nor have taken objection to the marking of the documents. The evidence being so, merely on the basis of oral submissions and denials, the document on which the applicant have based their claim, cannot be said to be sham, and more particularly in the absence of any evidence let in by the respondents to prove the opposite. 12. The respondents except making oral denials have not been able to say as to how their signatures came to be found on all the pages of Ex. A1, mortgage deed and on the backside of page 4 of the mortgage deed, which is marked as Ex. A2. This apart, there is no dis-similarity in any of the signatures appended by respondent No. 1 on Exs. A1 and A2, when compared with his signature put by him in the counter filed opposing the present application, and therefore, it cannot be believed that the respondents have no knowledge about the loan transaction and their having executed any mortgage deed in favour of the applicant. 13. The contention of the respondents that the claim made in the application is barred by limitation and therefore not enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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