V. Eswaraiah, J.
1. Appellant is the defendant; and the respondent is the plaintiff in O.S. No. 26 of 1994 on the file of the Subordinate Judge, Pedapalli, filed for recovery of a sum of Rs. 1,17,400/- basing on the mortgage deed, dated 6-12-1990, executed by the defendant along with future interest @ 18% per annum over the principal amount of Rs. 70,000/- from the date of the suit till the date of realization, and the same was decreed for a sum of Rs. 1,17,400/- with costs and future interest @ 6% on the principal amount of Rs. 70,000/-from the date of the suit till the date of realization. Aggrieved thereby the defendant filed the present appeal suit.
2. Parties are here in after referred to as they are arrayed in the trial Court.
3. It is the case of the plaintiff that the defendant borrowed a sum of Rs. 60,000/-by executing Ex. Al- mortgage deed, dated 6-12-1990, before the Sub-Registrar, Pepapalli, which was registered as document No. 1319 of 1990 by mortgaging the house of the defendant bearing D. No. 4-7-15 situated at Pedapalli agreeing to repay the said amount on or before 15-5-1993. It is further stated that the defendant again borrowed a sum of Rs. 10,000/- from the plaintiff by executing Ex. A. 2-bond, dated 5-2-1991, agreeing to pay back the same within two years four months i.e. , on or before 3-6-1993, in continuation of the earlier registered mortgage deed and further agreed to pay 18% interest on the borrowed sum of Rs. 60,000/- as well as Rs. 10,000/-i. e. , on the total sum of Rs. 70,000/-. Thus the suit has been filed for recovery of Rs. 60,000/- along with 18% interest from 5-2-1991 till the date of filing of the suit i. e. , 9-11-1994, the interest amount of which is Rs. 40,650/-, and also for recovery of the said sum of Rs. 10,000/- along with 18% interest from 5-2-1991 to 9-11-1994, the interest amount of which is Rs. 6,750/-, and the principal amount is Rs. 70,000/-including the said interest total of which is Rs. l,17,400/-.
4. Defendant filed a written statement admitting the execution of Ex. A1-mortgage deed but disputed the borrowal of Rs. 10,000/-under the alleged deed of mortgage. The defendant while admitting the execution of the mortgage denied the execution of Ex. A2-bond stating that the said bond was concocted and created for the purpose of the suit. It is further stated that, in fact, he has approached the plaintiff and requested to receive the mortgage amount of Rs. 60,000/- and to acknowledge the said amount offered by him, but in spite of receiving the said mortgage amount the plaintiff developed an evil eye towards the house and demanded to sell the same. It is further stated that the plaintiff is not entitled to claim 18% interest as continuation of the mortgage amount and the mortgage deed was executed without payment of any interest and therefore, the plaintiff is not entitled to the interest based on the alleged bond.
On the aforesaid pleadings, the trial Court framed the following issues:
1. Whether the plaintiff is entitled to claim a decree for Rs. l, 17,400/- as prayed by him with costs?
2. Whether the defendant executed bond for Rs. 10,000/- in favour of the plaintiff?
3. Whether the plaintiff is entitled to receive the interest @ 18% per annum on mortgage amount of Rs. 60,000/- and on bond and the same was agreed by the defendant?
4. Whether the suit is maintainable?
5. Whether the suit of the plaintiff is within limitation?
6. To what relief?
All the issues were answered in favour of the plaintiff. The points that arise for consideration are:
1. Whether Ex. A2-bond is true, valid and genuine document said to have been executed by the defendant?
2. Whether the plaintiff is entitled for payment of any interest based on Ex. A2-bond on the mortgaged amount of Rs. 60,000/- under Ex. Al-registered mortgage deed which stipulates that the mortgage amount shall not bear any interest?
5. Plaintiff was examined as PW. l and marked Exs. Al to A4. Ex. Al is the registered mortgage deed, dated 6-12-1990; Ex.A2 is the bond with regard to the borrowal of Rs. 10,000/- from the defendant which stipulates the payment of 18% interest on the mortgage amount under Ex. Al advanced under Ex. A2; Ex. A3 is the legal notice; and Ex. A4 is the acknowledgment.
6. Plaintiff accepted in his cross-examination that he did not mention in the legal notice about the interest from the date of the mortgage but in the suit only he has claimed the interest. The suggestion that the defendant did not execute Ex. A2-bond and it is forged and the signature on Ex. A2 does not belong to the defendant and the defendant did not execute Ex. A2 bond was denied. The suggestion that the defendant is not liable to pay any interest on the mortgage amount is also denied. PWs. 2 and 3-attesting witnesses of Ex. A2-bond, stated that the defendant borrowed a sum of Rs. 10,000/- and affixed his signature. PW. 4-scribe of Ex. A2-bond, stated that he has not seen while the defendant signing on Ex. A2-bond in English, and there is no mention about the earlier debt of Rs. 60,000/-, and Rs. 10,000/- was not paid by the plaintiff to the defendant in the presence. Again he has stated that the defendant acknowledged the receipt of Rs. 10,000/- and signed on Ex. A2 in his presence.
7. The defendant examined himself as DW. l and while accepting execution of Ex. Al-mortgage deed he stated that he never borrowed the said sum of Rs. 10,000/-under Ex. A2-bond and it is stated that the signature on Ex. A2-bond does not belong to him. Ex. A4-acknowledgment bears his signature.
8. A perusal of Ex. Al-registered mortgage deed, bearing registration No. 1319 of 1990, dated 6-12-1990, registered on 11-12-1990 in the office of the Sub-Registrar, Pedapalli, goes to show that the defendant executed the said mortgage deed on the stamps worth about Rs. 1,800/- in favour of the plaintiff for giving his house as security and the said amount of Rs. 60,000/- shall not bear any interest for 2 1/2 years i. e. , from the date of the borrowal up to 15-5-1993. If the amount is not repaid the plaintiff is at liberty to recover the said amount by proceeding against the said house which was mortgaged. Ex. A2-the alleged bond written on a white paper containing the alleged signature of the defendant on revenue stamps attested by PWs. 2 and 3, and scribed by PW. 4, goes to show that the defendant has borrowed a sum of Rs. 10,000/- which was agreed to be repaid within 2 1/2 years, and the borrowed sum of Rs. 60,000/- under Ex. A2-bond dated 6-12-1990, and Rs. 10,000/- received by the defendant on 5-2-1991 shall bear interest @ 18% Ex. A3-legal notice issued to the defendant goes to show that the defendant has borrowed a sum of Rs. 60,000/- under Ex. A2-bond agreeing to repay the said amount on or before 2-5-1993, otherwise, the plaintiff is entitled to sell the mortgaged property to realize the said debt. Again the defendant borrowed a sum of Rs. 10,000/-on 5-2-1991 agreeing to repay the said amount after 2 1/2 years along with 18% interest from 5-2-1991 which period expires by 15-5-1993. The said notice specifically goes to show that the plaintiff has not demanded any interest on Rs. 60,000/- in the said notice but only demanded for the repayment of Rs. 70,000/- and interest on Rs. 10,000/-. Ex. A4 is the acknowledgment. A perusal of Exs. Al, A2 and A4 goes to show that the signature on Ex. Al and the signature contained in Ex. A2 is not tallying but unfortunately the defendant has not taken any steps to get the expert opinion and he has not taken the plea of forgery specifically and therefore, in view of the facts and circumstances of the case, as the attesting witnesses and the scribe categorically stated that the defendant signed on Ex. A2-bond, I am not inclined to interfere with the said finding recorded by the trial Court though there is something in the contention of the defendant. Therefore, I am of the opinion that Ex. A2-bond, said to have been executed by the defendant, is proved.
The further question that arises for consideration is:
Whether the plaintiff is entitled to interest on the borrowed sum of Rs. 60,000/- under Ex. A2-bond?
9. Though Ex. Al do not stipulate any payment of interest and in fact, Ex. Al states that the said amount shall not bear any interest but by virtue of Ex. A2-bond which stipulates the payment of interest on the said amount of Rs. 60,000/- also there is no dispute with regard to the execution of the mortgage deed-Ex. Al. The defendant having received a sum of Rs. 60,000/- has mortgaged his house property and as the mortgage of the immovable property requires stamp and registration as it being alienation within the meaning of the Transfer of Property Act [for brevity, 'the Act'] the said mortgage deed was duly stamped and registered. Any modification, alteration, recession, change of the document which requires registration shall be by way of another registered document only. Ex. Al-mortgage deed is a conditional transfer of the property of the defendant and the defendant has got a right of redemption to redeem the said mortgage by paying back the mortgage amount, otherwise, the plaintiff is entitled for recovery of the said money by bringing the said property for sale as it was given as security for repayment of the said amount. The said clauses of the mortgage cannot be modified by any unregistered document as Ex. Al stipulates that the said amount of Rs. 60,000/- shall not bear any interest, but contrary to the registered document plaintiff obtained Ex. A2-bond which goes to show that the defendant has to pay the interest on Rs. 60,000/- also borrowed on 6-12-1990 from the date of the mortgage but claimed the interest from the date of the bond only in the suit.
10. Sri T. Ramulu, learned Counsel appearing for the appellant, submits that under Section 91 of the Indian Evidence Act, where the terms of a contract have been reduced to the form of a document the document itself constitutes a piece of evidence and no other evidence is required to prove the terms of the said contract and under Section 92 of the Indian Evidence Act, when the terms of a contract have been reduced to the form of a document, the document itself becomes a piece of evidence and no evidence on any oral agreement or statement, shall be admitted contradicting, varying, adding to, or subtracting from, its terms of such document.
11. Learned Counsel appearing for the appellant relied on a judgment of the Madras High Court in Syndicate Bank v. N.C. Kalyani Raghavan and Ors. : AIR1983Mad254 , wherein it was held that when the promissory note was kept blank with regard to the rate of interest but subsequently an endorsement acknowledging the liability with regard to rate of interest was taken based on which the bank wanted to recover the said amount along with interest but the Court rejected the said contention holding that when the promissory note does not specify the collection of any rate of interest, the acknowledgment relating to the rate of interest cannot be permitted as the main document contained stipulation of any interest, the bank is entitled to the rate of interest only from the date of filing of the suit till realization. He also relied on a judgment in Pasumorti Durga Srinivasa Murthy v. Sri Sai Agencies and Ors. 1997 (6) ALD 306, wherein it was held that when an agreement has been reduced into writing because it is a requirement of law, no evidence can be given on any oral subsequent agreements rescinding or modifying it and this can be waived, rescinded, modified or altered only by a written instrument of equal solemn character the criterian is not whether the subsequent agreement is required by law to be in writing, but whether the original contract, the terms of which the subsequent agreement seeks to rescind or modify, is by law required to be in writing. There is no dispute that there cannot be any oral agreement contrary to the written agreements. As per law the mortgage of the house property required duly stamped and registered and therefore Ex. Al-mortgage deed was executed on duly stamped paper and accordingly registered. Therefore, if the parties to the said mortgage deed wants to rescind or vary its term or wants to modify the term, then, the parties have to rescind, or vary the terms of the registered mortgage by a similar instrument of equal solemn character but not the way in which the plaintiff obtained Ex. A2 modifying the specific stipulation mentioned in Ex. Al with regard to the interest which shall not be collected. Therefore, the only course open for the plaintiff was to file a suit for recovery of money based on Ex. Al-mortgage deed as stipulated in Ex. Al and if that be the case, the plaintiff is entitled to recover the interest from the date of the suit only on Ex. A. 1 but not prior to the filing of the suit.
12. Accordingly, I hold that the plaintiff is not entitled to claim interest @ 18% on the mortgaged sum of Rs. 60,000/- from the date of the mortgage till the date of filing of the suit. Accordingly, the judgment and decree of the trial Court, decreeing the suit along with the interest @ 18% on Rs. 60,000/ up to the date of filing of the suit, is set aside and the judgment and decree of the trial Court is modified decreeing the suit for recovery of Rs. 60,000/- along with interest @ 6% from the date of filing of the suit till the date of realization and for recovery of Rs. 10,000/- along with 18% interest from 5-2-1991 to 9-11-1994 and with subsequent interest @ 6% from the date of filing of the suit till the date of realization. Each party shall bear their own costs on this appeal. Costs awarded by the trial Court shall be proportionately reduced insofar as the interest amount calculated on Rs. 60,000/-.
13. Accordingly, the appeal suit is allowed in part as indicated above. No order as to costs.