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Sample Civil Judgement 2

IN THE COURT OF THE SUBORDINATE JUDGE, AT GUNTUR Present : Sri (Name of the Judge), B.Sc., B.L.,

Subordinate Judge.

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Wednesday, the 5th day of January, 1972. Original Suit No. 78 of 1971.

Between :

ABC……………. …………………………………………………………….. Plaintiff.

AND

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XYZ……………… Defendant.

JUDGMENT

Suit for recovery of Rs. 10,200/- due on an equitable mortgage

1. The averments in the plaint are as follows:

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The defendant borrowed sum of Rs. 7,500/- from the plaintiff for the purpose of purchasing new parts and effecting repairs to her tractor bearing No. A.P.V. 582 executed a pronote on 14-2-1968 agreeing to repay the same with interest at 12% p.a. She created an equitable mortgage by deposit of title deed in respect of her house property situated in Guntur. Thereafter the defendant executed a memorandum on the same day describing the title deed and delivered it to the plaintiff. The defendant did not repay inspite of demands and a notice was given dated 6-2-1971 which the defendant received on 10-2-1971. Hence, the suit.

2. The defendant filed a written statement contending as follows:

This defendant does not know the plaintiff and there was no privity of contract between them. The plaintiff and the defendant’s husband suppressed the truth. The defendant’s husband is an automobile mechanic and the husband of the plaintiff is a dealer in automobile spare parts. It is true that the tractor A.P.V. 582 stands in the name of the defendant. Her husband only manages the tractor. The defendant’s husband requested the plaintiffs husband to undertake the repairs for the tractor A.P.V. 582 and if necessary to replace the old parts and opened a khatha in his shop. The plaintiffs husband KLN (Name of the plaintiffs husband) agreed for the same and asked the defendant’s husband on 30-

1-1968 to leave the tractor in the shed of….. (Name of the shed owner). KLN brought the tractor to working condition by 14-2-1968. He told the defendant’s husband to obtain the signature of this defendant on a pronote for Rs. 7,500/- and also a letter of agreement and that the accounts can be looked into later on. Without disclosing what had happened the defendant’s husband obtained the signature of the defendant on the pronote and the agreement. This defendant did not receive any amount either from the plaintiff or from KLN. KLN did not render an account to the defendant’s husband as promised, inspite of repeated demands. The defendant’s husband ran the tractor till 12-6-68. KLN then asked the defendant’s husband to entrust the tractor to him to be run for two and half years on hire and appropriated the income towards the suit debt in full discharge. The defendant’s husband agreed and gave the tractor to KLN on 14-6-68. KLN made use of the tractor till the end of January 1971, gave it on hire to DEF, GHI, JKL and MNO and several others. On 2-2-71 KLN returned the tractor to the defendant’s husband and promised to cancel the pronote, the agreement and to return the sale deed. The defendant’s husband believed the words of KLN the debt was discharged. The title deed belonging to the defendant was taken long before the execution of the pronote to assess the solvency of this defendant’s family and there was never any intention on the part of this defendant to create an equitable mortgage by deposit of the deeds. The suit is liable to be dismissed with costs.

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3. On the pleadings the following issues were settled:

1. Whether and to what extent is the suit pronote not supported by consideration?

2. Whether the discharge pleaded is true?

3. To what relief?

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The following additional issue was framed on 1-12-1971.

4. Whether any equitable mortgage by deposit of title deed is created?

4. Issues 1, 2 and additional issue 1:

It is the case of the plaintiff that the defendant borrowed Rs. 7,500/- from her on 14-2-1968 for the purpose of getting her tractor A.P.V. 582 repaired, agreeing to repay the same with interest at 12% p.a. and executed the pronote Ex. A-2 and created an equitable mortgage by deposit of her document of title Ex. A-l for her house property situated in Guntur and that the defendant also executed the memorandum Ex. A-3 subsequently on the same day giving the description of the title deed Ex. A-l deposited with the plaintiff and that the defendant did not repay the debt inspite of demands and a notice, office copy of which is Ex. A- 4, which the defendant received under the postal acknowledgement Ex. A-5.

5. The case of the defendant on the other hand is that the plaintiffs husband KLN took the tractor from the defendant’s husband undertaking to get the repairs done, that on 14-2-1968 he asked the defendant’s husband to obtain the signature of the defendant on the pronote and the memorandum promising that the accounts can be looked into later on, that he did not render an account of the amount spent on the repairs and that the defendant did not receive any cash under the pronote Ex. A-2. It is also her case that the plaintiff’s husband took the tractor from the defendant’s husband on 14-6-1968 and made use of it till the end of January, 1971 on the understanding that he should run it on hire and adjust the income realised in full discharge of the debt, that the plaintiffs husband KLN accordingly made use of the tractor and returned it on 2-2-1971 and that she did not intend to create a mortgage by deposit of title deed and that Ex. A- 1 was taken by KLN much earlier to assess the solvency of the defendant.

6. The plaintiffs husband KLN as P.W. 1 stated that he is a dealer in automobile spare parts, that the defendant came to his shop along with her husband, MSR (D.W. 2), that he lent Rs. 7,500/- which belongs to his wife and the defendant executed the pronote Ex. A-2 in his shop at about 9 A.M. on 14-2-1968. He stated that the defendant gave him her document of title for her house (Ex. A-l) as security for repayment of the debt and that the defendant executed the memorandum Ex. A-3 in the evening. He stated that the defendant did not repay the debt inspite of a notice, office copy of which is Ex. A-4. The defendant received the notice on 10-2-1971 under the postal acknowledgement Ex. A-5. The plaintiff filed the suit on 12-2-1971. The defendant gave a reply by telegram (Ex.A- 6) on 15-2-1971 contending that the allegations in the notice were false and the suit was filed suppressing the truth. AKK, (P.W. 2) is the scribe of Ex. A-2 and Ex. A-3. He stated that P.W. 1 gave cash of Rs. 7,500/- to the defendant at the time when Ex. A-2 was executed and that the defendant gave her title deed Ex. A-l, to P.W. 1 at the same time. According to him, the memorandum Ex. A-3 was executed in the evening. XXX, P.W. 3 is one of the attestors to the promissory note as well as the memorandum. He also supported the plaintiffs case. The defendant’s husband MSR (D.W. 2) is the other attestor.

7. MSR (D.W. 2) is the husband of the defendant. He stated that they own a tractor, that engine has become old and spare parts were not available, that P.W. 1 suggested that there was an old lorry engine for sale, that it can be purchased, repaired and set in the tractor and that P.W. 1, so saying, took the tractor from him and sent it to the shed of Sri…. (name of the shed owner) in January, 1968. He stated that P.W. 1 gave the necessary spare parts. According to him P.W.I told him that the cost of the engine and repairs would come to Rs. 4,000/- or Rs. 6,000/- and asked him to get his wife execute a pronote for Rs. 7,500/- as the tractor stood in her name and that the accounts can be settled later on. He stated that P.W.I asked him to bring the title deed for the house as a security. He stated that he thereupon got Exs. A-2 and A-3 signed by the defendant on 14-2-1968 at his house and gave them to P.W. 1. He stated that he gave Ex. A-l to P.W. 1 on 10-1-1968 and that P.W. 1 returned it subsequently as security under the pronote Ex. A-2. It is therefore clear from his evidence that the title deed Ex. A-l was given to P.W. 1 as security under the pronote Ex. A-2 and if it is found that Ex. A-2 is supported by consideration it follows that an equitable mortgage by deposit of title deeds is created. He stated that P.W.I maintained accounts and that they show what amount was actually spent on the repairs of the tractor. According to him a sum of Rs. 4,000/- was spent on repairs He stated that he asked P.W. 1 to show the accounts after the tractor was repaired and that P.W. 1 did not show him the accounts after the tractor was repaired and that P.W. 1 did not show him the accounts. The defendant examined herself as D.W. 1 and stated that her husband brought Ex. A-2 and A-3 and asked her to sign in them and that she signed in them as asked by her husband. She stated that she did not receive any cash under the pronote Ex. A-2 and that when she asked her husband as to what Exs. A-2 and A-3 were, he told her that he was getting the tractor repaired. She stated that she does not know anything else. She stated that her title deed Ex. A-l was taken by her husband one month before she signed Ex. A-2 and A-3. She admitted that her husband got the tractor repaired in 1968 and that she does not know what amount was spent by her name and that he was looking after the running of the tractor. D.W. 2 stated that P.W. 1 only got Exs. A-2 and A-3 prepared and that he and the defendant were not present at that time. He stated that P.W. 1 gave them to him at 8.30 a.m. on 14-2-1968 and asked him to get them signed by the defendant. But, D.W. 1 stated that she and her husband went and purchased the stamps for the memorandum Ex. A-3. The stamps are issued in her name. She admitted that when she signed in Ex.A-2 the matter above her signature was found written and yet she wanted to make it appear that she did not read it before signing. The defendant took the stand in the written statement that the accounts maintained by P.W.I would disclose that he undertook to get the tractor belonging to the defendant repaired and the amount spent by him on the repairs. P.W. 1 produced his accounts. But, the defendant has not chosen to exhibit them in evidence. I do not see any reason to disbelieve the evidence of P.W.s 1 to 3.1 hold that the suit pronote is supported by cash consideration of Rs. 7,500/- and that the defendant deposited her title deed. Ex.A-l simultaneously with the execution of the pronote creating an equitable mortgage.

8. It is the case of the defendant that P.W. 1 ran the tractor on hire from 14-6- 1968 to 30-1-1971, on an agreement that he should appropriate the income realised in full discharge of the debt and that P.W.1 returned the tracter to sri…..on 2-22-1971.it is her case that the debt was thus discharged and that P.W.I having promised to cancel Exs. A-2 and A-3 and return Ex. A-l to A-3 has not done so. D.W. 1 stated that P.W. 1 used the tractor and ran it on hire after repairs from 1968 till the end of December, 1970 and that the tractor was returned to him in December, 1970. According to him, the repairs were done for the tractor from January, 1968 to March, 1968. His evidence is contrary to what is stated in the written statement. He stated that P.W.I only made use of the tractor from 14-2-1968 to 12-6-68 and that D.W.I did not make use of it. But, in the written statement it is mentioned that P.W.l handed over the tractor to D.W.I on 14-2- 1968, that D.W. 1 made use of it till 12-6-68 and then handed over the same to P.W.l on 14-6-68. D.W. 1 stated that the tractor was with P.W.l for two and half years. She stated that she cannot say from what date to what date it was with P.W. 1. D.W. 2 stated that P.W. 1 gave the tractor to DEF, GHI, JKL, MNO and others on hire. He admitted that he has no personal knowledge and he came to know of it on enquiry. JKL, D.W. 3 stated that in July, 1969 he got his Ac. 10-00 of land in Lam Farm ploughed with a tractor and that he took the tractor on hire from the shed near Leela Talkies at Rs. 40/ – per acre and that the tractor bore the number 582. He stated that he paid Rs. 100/- towards advance in the shed and sent the balance of Rs. 300/- through the driver of the tractor and the work.

He stated that he cannot identify the driver of the tractor and that he does not remember the name of the driver. He stated that he did not take any receipt for the amount paid by him. He stated that he cannot say whether he has seen P.W. 1 previously. But, in cross-examination he stated that he thinks that the name of the person with whom he talked in the shed when he took the tractor on hire was KLN. He stated that he cannot identify him. There is no doubt that he could give the name of KLN by what he was made to say. Had he talked to P.W.l in the shed before taking the tractor on hire he could have certainly identified P.W.l when he was shown in the Court by the defendant’s counsel. I am not prepared to give any weight to the evidence of this witness. P.W.l admitted that the entries from 11-2-68 to 11-5-68 in the note book Ex. B-l show that the entries have been made by him. He stated that he made the entries at the request of D.W.2 and that it has nothing to do with the running of the tractor or the suit debt. If P.W. 1 made use of the tractor from 14-6-68 onwards, the entries in Ex. B-l have some relevance. P.W. 1 deposed that he did not run the tractor for any period and that the discharge pleaded by the defendant is not true. The defendant has not established that she discharged the suit debt. I find on issue 1 that the suit pronote is fully supported by consideration. On issue 2 that the discharge pleaded is not true and on additional issue that there is an equitable mortgage created by deposit of the title deed Ex.A-1.Dictated to the short-hand writer, transcribed by him and corrected and pronounced by me in open Court, this the 5th day of January, 1972

(Sd)….. (Signature of the Judge)

Subordinate Judge.

WITNESSES EXAMINED For plaintiff: For Defendant:

P.W.I Sri…….. D.W.I Sri……………

P.W.2 Sri……. D.W.2 Sri…………..

P.W.3 Sri……. D.W.3 Sri…………..

DOCUMENTS MARKED

For plaintiff:

Ex. A-l. 20-3-1967 Registered sale deed executed by Smt….(name) in favour of Smt… (name) for Rs. 9,000/-

A-2. 14-2-1968 Promissory note executed by the defendant in favour of plaintiff for Rs. 7,500/-

A-3. 14-2-1968 Memorandum letter of title deed executed by the defendant to the plaintiff.

A-4. 6-2-1971 Office copy of the registered notice issued by the plaintiffs advocate Sri.. , to the defendant.

A-5. 10-2-1971 Postal acknowledgement from the defendant for receipt of Ex.

A-4.

A-6. 15-2-1971 Reply telegram given by Sri…….. , advocate for the defendant to the plaintiffs advocate to Ex. A-4.

Defendant:

Ex. B-l. Small pocket account book relating to the defendant containing the handwriting made by the plaintiff on it at pages 1 and 2 regarding the account of A.P.V. 582.

(Sd) …. (Signature of the Judge)

Sub-Judge

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