Jaggar Singh v. Jagraj Singh

CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Suresh Goel, Advocate, for the appellant. Mr. B.S.Bhasur, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree granted by the Courts below arising out of the suit for specific performance, wherein decree for the recovery of Rs.50,000/- alongwith interest, was granted. It is the case of the plaintiff-respondent that the defendant borrowed a sum of Rs.50,000/- in cash from the plaintiff on 11.12.1998 on interest @ 2% per month and executed pronote and receipt. On the same day, the defendant executed another agreement agreeing to mortgage land with stipulation that in case he is not able to repay the loan amount, the plaintiff shall be entitled to seek execution of the mortgage deed from the defendant. It was also recited in the said agreement that possession has been delivered by the defendant of his land. Since, the defendant did not return the amount of Rs.50,000/- alongwith interest thereon, the plaintiff filed the present suit for specific performance on R.S.A.No.1015 of 2008 2

8.5.2002 for execution of the mortgage deed. Both the Courts have decreed the suit granting the alternative relief i.e. recovery of Rs.50,000/- alongwith interest at the rate of 6% per annum (granted by the first Appellate Court) from the date of institution of the suit till realization. Learned counsel for the appellant in second appeal has argued that the suit is barred by limitation as the suit has been filed on 8.5.2002 on the basis of pronote and receipt dated 11.12.1998 is beyond the period of limitation. It is also argued that agreement dated 11.12.1998 is a document of mortgage, therefore, the same being unregistered cannot be taken into consideration either for extension of limitation or for determining the mortgage. Learned counsel for the appellant has also argued that pronote dated 11.12.1998 is not proved to be with consideration and, therefore, the suit could not have been decreed for the recovery of Rs.50,000/-. I have heard learned counsel for the parties at some length, but do not find any merit in the arguments raised by the learned counsel for the appellant. The plaintiff has proved the execution of the pronote. It carries statutory presumption of consideration in terms of Section 118 of the Negotiable Instruments Act, 1881. The execution of pronote is proved on the basis of the statement of Darshan Singh (PW-1) as well as statement of the plaintiff, appearing as PW-3. Therefore, I do not find any merit in the argument raised by the appellant that the consideration of pronote is not proved. The other argument that the suit is beyond the period of R.S.A.No.1015 of 2008 3 limitation is required to be examined in the context of an agreement dated

11.12.1998 (Ex.P-3). The said agreement is in two parts. One is in respect of the defendant surrendering possession in favour of the plaintiff in lieu of payment of interest; and the second part is the agreement for execution of mortgage deed on failure of the defendant to pay the loan amount within three years. The aforesaid agreement does not require registration, as the said agreement evidences surrender of possession by the defendant. Such surrender of possession in lieu of payment of interest is not creating any interest in favour of the plaintiff, which may require registration in terms of Section 17 of the Registration Act, 1908. Even if, the same requires registration, the non-registration of the said document can be read into evidence for collateral purpose within the meaning of Section 49 of the Registration Act, 1908. Second part of the agreement is to execute mortgage. Such is an agreement in respect of immovable property in future, which by itself is not leading any right in favour of the plaintiff. In fact, the cause of action of recover the principal amount of Rs.50,000/- would arise after 3 years in terms of the document Ex.P-3. Therefore, the argument raised by learned counsel for the appellant is misconceived and untenable. Therefore, I do not find any merit in the argument raised by the learned counsel for the appellant. In view of the above, I do not find that any substantial question of law arises for consideration of this Court. Dismissed.

28.7.2009 Vimal (HEMANT GUPTA) JUDGE