1. Aggrieved over judgment and decree passed in O.S.No.255 of 2004, on the file of the Additional District Judge cum Fast Track Court No.2, Madurai, dated 07.09.2007, the present appeal came to be filed.

2. For the sake of convenience, the parties are referred to herein, as per their own ranking before the Trial Court.

3. The brief facts, leading to the filing of this Appeal, are as follows:-

The first defendant is a Partnership Firm. Defendants 2 and 3 are partners. They are exporting non-edible oil, spices and groceries items to Colombo, Sri Langa. Defendants 1 to 3 applied to the plaintiff for Packing Credit cum Trust Loan facility for a sum of Rs.6 lakhs on 16.11.1998. They have also executed necessary documents in favour of the plaintiff. Fifth defendant has already executed a deposit of title deeds on 17.02.1998, offered to extend the mortgage towards the said loan sanctioned to the defendants 1 to 3. On 31.03.1999, Rs.3 lakhs was sanctioned in favour of the defendants 1 to 3. Defendants 1 to 3 also executed a pronote in this regard. Another sum of Rs.5 lakhs was also sanctioned. In this regard, they also executed the necessary document. Fifth defendant herein one of the two guarantors of the said loans were also given a consent letter for creating an equitable mortgage over the same as collateral security in favour of the bank. Hence, this suit has been filed claiming not only personal decree as against the defendants 1 to 3 but also against the defendants 4 to 10 and mortgage decree as against the fifth defendant.

4. The fifth defendant filed a written statement denying the execution of the equitable mortgage in favour of the bank. It is his contention that he never signed any document in favour of the bank and at the relevant point of time, he was never in India and according to him there was no contract. The original document relating to the schedule mentioned property are under the custody of the fourth defendant. All the documents are forged one and he has never signed any of those documents at any point of time.

5. The seventh defendant filed a written statement stating that he has no way connected with the business carried on by the defendants 2 and 3 and he has been impleaded only as the capacity of the legal heir of the fourth defendant, who is his father and his father has not left any estate and he has not succeeded to his estate. Hence, opposed the suit.

6. Defendants 6 and 8 to 10 have filed a written statement stating that they are the children of Karuppiah Chettiar, viz., the fourth defendant and according to them they have not participated in any of the business transactions carried on by the defendants 1 to 3 and therefore, they are not liable to pay any amount.

7. On the basis of the above pleadings, the trial Court has framed the following issues:

1. Whether the defendants are jointly and severally liable to pay the suit claim

2. To what other relief, the plaintiff is entitled to

8. Before the trial Court, on the side of the plaintiff, one witness was examined as P.W.1 and 69 documents were marked as Ex.A.1 to Ex.A.69. On the side of the defendants, two witnesses were examined as D.W.1 and D.W.2 and seven documents were marked as Ex.B1 to Ex.B7. Defendants 1 to 3 were remained ex parte.

9. The trial Court after analysing the entire evidence, has decreed the suit only against the defendants 1 to 3 and dismissed the relief in respect of mortgage decree and also dismissed the suit as against defendants 4 to 10. Challenging the same, the present appeal came to be filed.

10. The main contention of the learned counsel appearing for the plaintiff / appellant before this Court is that the trial Court has not properly appreciated the evidence. The fifth defendant has already executed a mortgage in favour of the bank and he extended the same towards the loan borrowed by the defendants 2 and 3 on behalf of the first defendant. The trial Court has not considered the document produced by the plaintiff and simply rejected the claim for mortgage decree. The learned counsel appearing for the plaintiff / appellant is also submitted that when the plaintiff has not only proved the distribution of the loan in favour of the defendants 1 to 3 and execution of various documents, the trial Court ought not to have dismissed the suit in respect of the mortgage decree. It is the further contention of the learned counsel appearing for the plaintiff / appellant that fifth defendant is none other than the brother of the second defendant and many documents have been filed by the plaintiff to show that there was a valid mortgage and extension of equitable mortgage by the fifth defendant, which have not been properly analysed by the trial Court. Hence, prayed for setting aside the decree dismissing the suit against the defendants 4 to 10.

11. The learned counsel appearing for the respondents submitted that the plaintiff has never established the alleged equitable mortgage executed by the fifth defendant. All the documents have been created taking advantage of the fact that fifth defendant is one of the family members of the defendants 2 to 4. It is his contention that Exs.B1 to B7 collectively established the fact that at the relevant point of time, the fifth defendant was not in India. Therefore, the allegation that he has signed the document on 17.02.1998 and extended the mortgage on 20.05.1999, are highly unbelievable and the plaintiff has not established the execution of the document by the fifth defendant. Therefore, when the execution itself has not been established, the equitable mortgage cannot be presumed. The trial Court has rightly analysed the entire evidence and dismissed the suit. Hence, prays for dismissal of the appeal.

12. In the light of the above submissions, now the points arise for consideration in this appeal are as follows: 1. Whether the fifth defendant in the suit has executed any memorandum of depositing title deeds on 17.02.1998 2. If so, whether he has extended the said mortgage in favour of the bank towards the loan obtained by the defendants 2 and 3 on 20.05.1999

13. It is the specific case of the plaintiff that defendants 2 and 3 are the partners and they have applied for Packing Credit cum Trust Loan facility on 16.11.1998. According the plaintiff, they have sanctioned a sum of Rs.3 lakhs on 31.03.1999 and also another sum of Rs.5 lakhs. Though several documents have been executed by the defendants 1 to 3, the fifth defendant has already executed the mortgage by deposit of title deeds on 17.02.1998, also extended the equitable mortgage towards the loan borrowed by the defendants 1 to 3 on 31.03.1999. It is the specific contention of the plaintiff that extension was made on 20.05.1999 by the fifth defendant. On a perusal of the entire evidence, particularly the pleadings and evidence of P.W.1, it is seen that there was no explanation under which circumstances, the memorandum of mortgage by deposit of title deeds was executed by the fifth defendant on 17.02.1998 itself. Even in the chief examination of P.W.1, there was no explanation as to why the equitable mortgage was executed by the fifth defendant on 17.02.1998. However, P.W.1, in the cross examination has stated that the equitable mortgage was obtained only in the year 1998 itself and amount has been advanced in the year 1999. This evidence runs contrary to the very pleadings of the plaintiff. Be that as it may. It is the specific contention of the fifth defendant that he never signed any document nor executed the memorandum of deposit of title deeds.

14. Further, it is the contention of the fifth defendant that at the relevant point of time, he was never in India and to substantiate the same, he has also filed entries made in his passport, which was marked as Ex.B2 to Ex.B7. This Court is concerned only about the so called memorandum of document executed by the fifth defendant in favour of the plaintiff. Ex.A22, said to be the memorandum of deposit of documents executed by the fifth defendant in favour of the plaintiff. On a perusal of the same, it is seen that there is no details whatsoever in the pleadings in the plaint or in the evidence of P.W.1, under what circumstances, the so called memorandum has been executed by depositing the title deeds. Ex.A24 is the sale deed , Ex.A25 is the house tax receipt and Ex.A26 is the encumbrance certificate. From the above documents, it is seen that except one document, viz., the sale deed, which was filed as Ex.A24, all other documents are either a xerox copy or obtained by the third party. Further, the fourth defendant is none other than the father of the fifth defendant, therefore, there is a possibility of handing over of those documents along with defendant Nos.1 to 3 by the fourth defendant, cannot be ruled out. Therefore, unless the plaintiff proves the execution of this document by the fifth defendant, merely on the basis of some signature said to have been signed by the fifth defendant appeared in all these documents, the memorandum of mortgage of deposit of title deeds cannot be presumed. To establish the deposit of mortgage of title deeds, it must be shown that there was a debt, besides, there was a bargain with regard to the deposit of title deeds, with the intention to create the same as security for the loan. In the absence of those ingredients, one cannot just presume the existence of the valid mortgage.

15. It is the specific case of the fifth defendant that he has never signed such document and he was not in India at the relevant point of time. In the chief examination, he has spoken about the dates, on which he was away from the country. He has also narrated about the alleged deed of document i.e., 17.02.1998 and 20.05.1999 and at the relevant point of time, he was never in India and he was in Sri Lanka which was also spoken by him. The entries in EX.B1 to B7 show that he has arrived to India on 12.02.1997, thereafter, left India on 23.02.1997. Similarly on 05.06.1997, he arrived to India and went to Sri Lanka on 12.06.1997. Again he came to India on 13.09.1997 and left from India on 20.09.1997. Thereafter, he returned to India on 26.06.1999 and left from India on 02.07.1999 and again came to India on 07.12.1999 and left to Sri Lanka on 04.01.2000 and again came to India on 31.05.2000 and left from India on 16.06.2000. Again, he came to India on 01.09.2000 and left to Sri Lanka on 16.09.2000. This evidence has not been denied in its entirety. That apart, these evidences are tallying with the entries found in the passport, where the arrival and departure entries made clearly substantiate the stand of the fifth defendant. The above entries clearly found in EX.B2 to Ex.B7. In fact, these evidences clearly probablise the fifth defendant's theory that he never signed any document on 17.02.1998 and 20.05.1999 as alleged by the plaintiff. The entries in the passport clearly show that after the departure on 20.09.1997, he returned to India only on 26.06.1999. Therefore, the contention of the plaintiff that he has signed the extension letter extending the equitable mortgage on 20.05.1999 is highly improbable and cannot be believed. Therefore, the alleged consent letter Ex.A15 and guarantee agreement dated 20.05.1999 Ex.A20 and Ex.A21 are highly doubtful and the same clearly shows that the blank papers have been utilized.

16. Therefore, once the plaintiff has come up with the theory that the document has been executed in the particular day and the defendant has able to prove that on the particular day he was not available and he never executed such document, the plaintiff cannot succeed on the basis of the document. The very nature of the alleged deposits of title deed, in fact, except only one document other documents are xerox copies and the Encumbrance Certificate also obtained by the father of the fifth defendant. Therefore, the possibility of handing over such document by other defendants, who is said to have been received certain amount during the course of business cannot be ruled out.

17. Such view of the matter, without any concrete evidence to show that the fifth defendant has executed the document in favour of the bank, the bank cannot claim a decree on the basis of alleged extension of equitable mortgage, when the very extension of alleged mortgage itself has not been established and signature is also totally denied by the defendants. Such being the position, the plaintiff has not taken any steps to prove such execution. That apart, Ex.B2 to B7 clearly probablise the case of the fifth defendant that the fifth defendant was not in India when the alleged execution of mortgage deed was executed. Such being the position, the trial Court has rightly appreciated the evidence. As far as the dismissal of the suit as against the other defendants is concerned, this Court is of the view that the other defendants are only legal heirs and the fourth defendant stood as guarantor and he also died pending the suit. It is the specific stand of the other defendants that they have not succeeded any estate of the fourth defendant and the plaintiff is also failed to prove any material to show that the other defendants have succeeded to the estate of the fourth defendant. Such view of the matter, the trial Court dismissing the suit as against defendants 4 to 10 does not require any interference. Accordingly, both the points are answered.

18. In the result, this Appeal is dismissed and the judgment and decree passed in O.S.No.255 of 2004, on the file of the Additional District Judge cum Fast Track Court No.2, Madurai, dated 07.09.2007 is confirmed. No costs. Consequently, connected miscellaneous petition is closed.