whether there was an equitable mortgage created by the defendants is a question of fact, which the courts below have not accepted. The memorandum of deposit is Ex.A.8 and as can be seen from the record that prior to the filing of the suit, legal notice Ex.A.5 was given and in that the alleged memorandum of deposit of title deeds under Ex.A.8 was not mentioned. The legal notice is dated 20.05.1996. Even in the plaint, the particulars of Ex.A.8 were not mentioned. Ex.A.8 is said to have been filed in the Court on 07.02.2001 after the cross examination of PW.1 was over. There was no proper explanation, and, therefore, the Courts below were not inclined to accept the creation of equitable mortgage and the appreciation of evidence by the courts below cannot be said to be irrational.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

S.A.NO.137 OF 2012

JUDGMENT:-

The Second Appeal is filed by the unsuccessful plaintiff in O.S.No.141 of 1996 on the file of the Court of Additional Senior Civil Judge at Eluru. The suit was filed for enforcement of a mortgage alleging that on 21.06.1991 the defendants have borrowed a sum of Rs.20,000/- and executed a promissory note and thereafter created an equitable mortgage of the schedule property. A part payment was made on 25.10.1993 which was endorsed on the promissory note.  As the defendants have not paid the amount, the suit was filed.

        The defendants contended that a sum of Rs.5,000/- was borrowed in the year 1991 from one G.V.V. Satyanarayana and at that time the signatures and thumb marks of the second defendant were taken on the blank papers and the said debt was discharged.  The said Satyanarayana in collusion with the plaintiff has fabricated a suit document and the endorsement of payment is not true.

The Courts below after considering the rival contentions have found that the loan transaction is true and did not believe the theory of equitable mortgage and granted a decree and the said decree was confirmed by the appellate Court.  The appellate Court also did not accept the theory of the equitable mortgage. 

The question that was sought to be canvassed before this Court is that the evidence on record clearly goes to show that Exs.A.1 and A.3 sale deeds were deposited and it was admitted and Ex.A.8 memorandum of title deed was also executed and these documents were not considered by the Courts and, therefore, the rejection of the claim for preliminary decree is not valid.  Evidently, whether there was an equitable mortgage created by the defendants is a question of fact, which the courts below have not accepted. The memorandum of deposit is Ex.A.8 and as can be seen from the record that prior to the filing of the suit, legal notice Ex.A.5 was given and in that the alleged memorandum of deposit of title deeds under Ex.A.8 was not mentioned.  The legal notice is dated 20.05.1996. Even in the plaint, the particulars of Ex.A.8 were not mentioned. Ex.A.8 is said to have been filed in the Court on 07.02.2001 after the cross examination of PW.1 was over.  There was no proper explanation, and, therefore, the Courts below were not inclined to accept the creation of equitable mortgage and the appreciation of evidence by the courts below cannot be said to be irrational. There is no substantial question of law involved or a case of mis-appreciation of evidence. Consequently, there are no grounds in the appeal and the appeal is liable to be dismissed.

        Accordingly, the Second Appeal is dismissed at the stage of admission. No costs.

           

_____________________­­__

N.R.L. NĀGESWARA RĀO,J

19-06-2012

TSNR