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TMI Blog1971 (4) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of a mortgage bond dated 1 January, 1948 executed by the first defendant and his sons defendants 2 to 4 in favour of the plaintiff firm. The principal sum secured ₹ 17,500/-was repayable with compound interest at 1% per mensem with half-yearly rests. The plaintiff firm after giving credit to the defendants for the sums paid towards the loan on the mortgage deed claimed the sum of ₹ 27,995-11-0 and interest. The plaintiff firm in paragraph 8 of the plaint further alleged that on 12 January, 1955 the first defendant acknowledged in writing on the mortgage bond liability for about ₹ 26.000/-and odd then found due while endorsing the payment in part for a sum of ₹ 410/- 4. Defendants No. 1 to 4 applied to the Court for examination and scrutiny of the mortgage bond on two grounds. First, defendants No. 1 to 4 alleged that besides the payments mentioned in the plaint, the defendants had made a payment of ₹ 19,000/-to the plaintiffs on 31 December, 1953 and the same was endorsed on the second page of the mortgage bond and the plaintiffs had not given the defendants credit for the same The second ground was that the alleged acknowledgement of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mortgage Bond dated 1-1-48 for ₹ 17,000/-in words Rupees Seventeen thousand five hundred executed by Yelamarty Satyam alias Satteyya, Poleswararao, Chennarao, Narayanamurthi of Rajamundry on Poshwad Punchand of the year two thousand four. It may be stated there that the translation of the Marwari writing as set out in the written statement was different to the translation referred to by the Court as Ex. B-3 which will be referred to later on 8. On these pleadings the two principal questions in controversy between the parties were first whether the first defendant made a payment of ₹ 19,000/-on 31 December, 1953 and made an endorsement on the mortgage bond in respect of the said payment; secondly, whether the defendants on 12 January, 1955 acknowledged d liability for ₹ 26,000/-as alleged by the plaintiffs or for ₹ 2600/ as alleged by the defendants. 9 The plaintiffs' case was that on 12 January, 1955 the first defendant approached the plaintiffs for a further loan for depositing a certain amount in the Subordinate Judges' Court at Rajahmundry for setting aside a sale of some of his property. The plaintiffs refused to give any further loan as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and interest accrued upto this day, a sum of ₹ 410/-in words rupees four hundred and ten) is the amount settled to be adjusted from out of rent payable to by you to us. (Sd/-in Telugu) Yelamurti Satyam. 12. The bone of contention between the plaintiffs and the defendants with regard to the later endorsement Ex. A-2 is that, according to the plaintiffs, it was ₹ 26000/-which was later on tampered into ₹ 2600.0.0 whereas, according to the defendants, the endorsement was for ₹ 2600 0-0 only. 13. The two rival cases as to endorsements for ₹ 19000/-and ₹ 2600/-are inextricably bound up If the finding will be that there was an endorsement for payment of ₹ 19,000/-there could not be an acknowledgement for ₹ 26000/-. 14. The oral evidence on behalf of the defendants was that there was payment of ₹ 19,000/-on 31 December, 1953 and that there was an endorsement to that effect made by the first defendant. The defendants proved the payment of ₹ 19,000/-an entry dated 31 December, 1953 in Ex B-6(a) at page 184 of the book of account. The first defendant proved the books of account and the debit entries. The book was maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dorsement for payment of ₹ 19,000/-on 31 December, 1953. 17. The mortgage bond was all along with the plaintiff. The plaintiff's version that the first defendant some time prior to 12 Jan., 1955 had taken the mortgage bond for the purpose of making a copy and at that time made an entry for payment of ₹ 19000/-, without the knowledge of the plaintiff firm does not find support either from conduct of parties or course of business dealing. If the plaintiff's version be correct that the defendants took the mortgage bond for purposes of making a copy it would be inexplicable that the plaintiffs would not look into the document when the defendant would return it. It would be the most obvious thing for any business man to check that the document was in order. It would also be unbelievable that the defendants would take the document for the purpose of copy and return it to the plaintiffs within 15 minutes. The document ran into 6 pages and contained closely written portions. It would also be strange that the plaintiffs would not look into the mortgage bond for calculation of interest when demanding money of the defendant in the year 1954 by notice in writing. He shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore be an endorsement on 12 January, 1955 for acknowledgement of liability for ₹ 26,000/-. The endorsement on 12 January, 1955 contains intrinsic evidence to nullify the plaintiffs' version that the defendants acknowledged liability for ₹ 26,000/-. On behalf of the plaintiffs there were three witnesses The two attestors deposed that when the endorsement was made it was for ₹ 26,000/-and there was a vertical line immediately after the figures ₹ 26,000/-and that there were no dots in between the figures If that were so the amount in figures would be ₹ 26,000/-. On the contrary, the defendant's version is that the amount was ₹ 2600-0 0/-. A question would arise as to whether there was any mutilation of the digits. No such case is found in the pleadings. Even after inspection of the documents by the parties, the plaintiffs did not allege that it was tampered by the defendants. The document was all along in the possession of the plaintiffs. When the document was produced in Court it was the plaintiffs' case that the figures were ₹ 26,000/-. Two witnesses were examined on either side. On behalf of the plaintiff there was the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rightly objected to such a question being put to the Counsel who gave evidence. Counsel for the appellants submitted that the Court should read the document and find out that a zero was added. In the absence of a charge in the pleadings, in the absence of a case made in the pleadings, in the absence of issues raised in the pleadings, in the absence of proof that a zero was added by the defendants it would be opposed to all rules and principles to entertain such a plea. 21. The defendants' evidence is consistent with the defendants' payment of ₹ 19000/-The endorsement also is proved to be a genuine one for ₹ 2600/-. The presence or absence of a vertical line makes no difference. 22. Counsel on behalf of the appellants relied on some documents consisting of letters and pleadings in support of the contention that the documents indicated that the plaintiffs' firm made a demand for a sum of money which could rot be asked for by the plaintiffs if the defendants had paid ₹ 19000/-on 31 December, 1953. 23. The first was Exhibit A-40 a letter dated I April, 1954 written by the plaintiffs to the defendants. In that letter the mortgage amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be proved as a fact. Documents do not prove themselves. The contents of the document have to be proved The controversy in the present case is whether the plaintiff firm has given the defendants credit for ₹ 19000/-. The answer to that question would decide the truth or falsity of the statement provided also the statement were shown to the defendants. 26. The fourth document on which the appellants relied is Exhibit A-41 being a copy of the written statement of Harakchand Surajmal in suit No. 105 of 1954. Written statement is dated 7 August, 1954. Defendant No. 1 was the plaintiff in that suit and Seth Harakchand Surajmal was the defendant. This document was relied on by the plaintiffs for the statement made there that a sum of ₹ 25145/-was owed by the defendant No. 1 to Seth Harakchand Surajmal. Seth Harakchand Surajmal is a different firm. 27. Exhibit A-42 is an affidavit dated 26 July, 1954 made by Seth Harakchand Surajmal in the Suit tiled by defendant No. 1 against the firm of Seth Harakchand Surajmal This document was relied on for the same purpose that a sum of ₹ 251245/-was mentioned by Harakchand Surajmal as due by the plaintiff these to Harakcha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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