personal degree cannot be passed against a LRS of borrowers of D1 - plaintiff would be entitled to degree against estate of D1 in the hands of his legal representative.
Citation
CDJ 2017 MHC 5985
R.Thimmaiyan vs SMT chits and finance corporation and others
Head Note
Civil Procedure Code –Section 96 – Negotiable Instruments Act – Section 20, Section 59, Section 118 – Chit Fund Act – Section 64 – Burden of prove – Requirement of registration – Grant of interest – Whether Defendant had discharged burden of proving that promissory notes were not supported by consideration – Whether document Ex.A5 requires registration and stamp duty – Whether Trial Court was justified in granting future interest of 24% p.a. –
Court held – Copy of RC book of mini-lorry owned by Defendant would show that Defendant borrowed money from Plaintiff even before suit transactions – Plaintiff has proved that it had advanced money to Defendant and Defendant had failed to discharge burden of proving that promissory notes are not supported by consideration – It does not see any reason to interfere with findings of Trial Court – On reading of document show that it does not incorporate all essentials of transaction – Unless it is shown that document incorporates all essentials of mortgage, it cannot be deemed to be mortgage by itself, so as to require registration – From document, it could be seen that rate of interest and time for repayment are not mentioned – It does not think document can be said to be document of mortgage by itself, so as to require registration – Suit is on mortgage and it is not shown that it is commercial transaction – Under Section 34 of CPC, Court can grant interest only at 6% p.a. on principal sum – Plaintiff is not entitled to interest at 24% p.a – Trial Court has granted future interest of 24% p.a. is really excessive – Judgment and decree of trial Court will stand modified – Appeal partly allowed.
(Para 1819, 22, 23,28, 29)
Cases Referred:
Ponnuswamy Vs.V.Santhammal and others reported in 1998 (2) MLJ 322
Deb Dutt Seal Vs. Raman Lal Phumra and others reported in AIR 1970 SC 659.
Sir Hari Shankar Paul and another Vs. Kedar Nath Saha and others reported in 1939 AIR (PC) 167
Veeramachineni Gangadhara Rao Vs. The Andhra Bank Ltd., and others reported in AIR 1971 SC 1613.
Rachpal Maharaj Vs. Bhagwandas reported in AIR 1950 SC 272
Comparative Citation:
2017 (5) LW 222,
Court held – Copy of RC book of mini-lorry owned by Defendant would show that Defendant borrowed money from Plaintiff even before suit transactions – Plaintiff has proved that it had advanced money to Defendant and Defendant had failed to discharge burden of proving that promissory notes are not supported by consideration – It does not see any reason to interfere with findings of Trial Court – On reading of document show that it does not incorporate all essentials of transaction – Unless it is shown that document incorporates all essentials of mortgage, it cannot be deemed to be mortgage by itself, so as to require registration – From document, it could be seen that rate of interest and time for repayment are not mentioned – It does not think document can be said to be document of mortgage by itself, so as to require registration – Suit is on mortgage and it is not shown that it is commercial transaction – Under Section 34 of CPC, Court can grant interest only at 6% p.a. on principal sum – Plaintiff is not entitled to interest at 24% p.a – Trial Court has granted future interest of 24% p.a. is really excessive – Judgment and decree of trial Court will stand modified – Appeal partly allowed.
(Para 1819, 22, 23,28, 29)
Cases Referred:
Ponnuswamy Vs.V.Santhammal and others reported in 1998 (2) MLJ 322
Deb Dutt Seal Vs. Raman Lal Phumra and others reported in AIR 1970 SC 659.
Sir Hari Shankar Paul and another Vs. Kedar Nath Saha and others reported in 1939 AIR (PC) 167
Veeramachineni Gangadhara Rao Vs. The Andhra Bank Ltd., and others reported in AIR 1971 SC 1613.
Rachpal Maharaj Vs. Bhagwandas reported in AIR 1950 SC 272
Comparative Citation:
2017 (5) LW 222,
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