Bangalore District Court
Smt.Ambika vs ) M/S.Sri Gururaghavendra on 15 December, 2021
KABC010193442019
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 15th day of December 2021
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.NO.4367/2019
PLAINTIFF SMT.AMBIKA
W/o.Sri.b.M.Babu Reddy
Aged about 40 years
R/at No.S-32, Kristal Tiara
Bellanduru Main Road
Bellandur Post, Ambalipura
Bengaluru -560 103
[By Pleader Sri.S.Venkatesh]
/Vs/
DEFENDANTS 1) M/S.SRI GURURAGHAVENDRA
SAHAKARA BANK NIYAMITHA
OS.4367/2019
2
Reptd. By its Manager
No.15, Subbaramashetty Road
Nettakallappa Circle
Bengaluru -560 004
[By Pleader Sri.M.N.Ramesha]
2) SRI.MUNI ANJANAPPA
S/o.Sri.Chinnappa
Aged about 70 years
R/at No.55/2, Bellandur Village
Bengaluru -560 103
[In person)
Date of Institution of the suit : 19.06.2019
Nature of the Suit : Declaration &
Injunction
Date of commencement of recording
of evidence : 03.03.2020
Date on which the Judgment was
pronounced : 15.12.2021
Year/s Month/s Day/s
Total Duration : 02 05 26
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
OS.4367/2019
3
JUDGMENT
Suit is filed by Plaintiff for declaring the Mortgage Deed dated 17.10.2011 obtained by Defendant No.1 as null and void and for directing Defendant No.1 to execute the Deed of Cancellation of mortgage relating to suit schedule property and to hand over the original title deeds to Plaintiff, failing which, she may be permitted to secure the same through the process of the Court.
2) Facts as stated in plaint, in nutshell, are that Plaintiff is the absolute owner in possession of suit schedule property, which was gifted to her by her father. Revenue records of suit schedule property got mutated in the name of Plaintiff. She constructed commercial complex in suit schedule property. She is leading her life from the rental income.
OS.4367/2019 4
3) It is stated that Defendant No.1 is the registered Co-Operative Society. Defendant No.2 is the father-in-law of Plaintiff.
4) It is stated that Defendant No.2 approached Plaintiff in the month of October 2011 and asked her to handover the original title deeds of suit schedule property to keep them in safe deposit locker of Defendant No.1. Believing the words of Defendant No.2, she accompanied Defendant No.2 to the office, where her signatures and photos and title deeds of the suit schedule property were taken by some strangers.
5) It is stated that till December 2018, she was under banafide impression that title deeds of suit schedule property were in safe custody of Defendant No.1. In the month of December 2018 when she asked Defendant No.2 to get back the title deeds from the locker of Defendant No.1, OS.4367/2019 5 Defendant No.2 evaded the same. Having scent of suspicion, Plaintiff approached Defendant No.1 in the first week of January 2019 and requested for original documents. Defendant No.1, in turn, informed that she has no account, much-less the safe deposit locker in Defendant No.1. Then, she approached Sub-Registrar Office and with the assistance of officials, she got certified copy of Mortgage Deed. After going through the Mortgage Deed, she came to know that in the Mortgage Deed she is shown to have mortgaged the suit schedule property in favour Defendant No.1 for the loan of Rs.1,75,00,000/- and Defendant No.2 is shown to have signed as one of the attesting witnesses to the Mortgage Deed.
6) It is stated that no loan as alleged in Mortgage Deed was paid to her and Mortgage Deed has been obtained by playing fraud upon her. After coming to know about the fraud played by OS.4367/2019 6 Defendant No.1, complaint was given to Registrar of Co-Operative Societies and even legal notice dated 30.01.2019 was issued to Defendants, Defendant No.1 failed to comply with the request made in the notice. Instead, he gave reply containing false recitals. Hence, prays for decree.
7) Summonses issued to Defendants were duly served. Defendant No.1 marked appearance through its advocate. However, it did choose not to file its written statement. Defendant No.2 marked his personal appearance and filed his written statement admitting the entire plaint assertions.
8) Issues that have been framed by this Court are as under :
1) Whether Plaintiff proves that mortgage deed dated 17.10.2011 obtained by Defendant No.1 by playing fraud upon Plaintiff ?
OS.4367/2019 7
2) Whether Plaintiff is entitled for mandatory injunction as prayed for ?
3) Whether Plaintiff is entitled for permanent injunction?
4) What Order or Decree?
9) Plaintiff has got examined as PW.1. One Mr.Umashankar has been examined as PW.2. Exs.P.1 to P.28 have been marked on behalf of Plaintiff. Defendant No.2 has chosen not to cross examine Plaintiff and to lead his evidence.
10) My finding on above Issues are :
Issue No.1 - As per findings;
Issue No.2 - In Affirmative;
Issue No.3 - In Affirmative;
Issue No.4 - As per final Order for the following -
REASONS
11) Issues No.1 to 3 : These Issues being interrelated are taken together for discussion.
OS.4367/2019 8 Plaintiff seeks declaration of Mortgage Deed dated 17.10.2011 obtained by Defendant No.1 in respect of suit schedule property as null and void, contending that the same was obtained by playing fraud upon Plaintiff.
12) Order VI Rule 4 of CPC deals with particulars to be given where necessary. It reads thus :
"4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
13) Section 17 of the Indian Contract Act, 1872 defines 'fraud'. It is extracted as under :
"17. 'Fraud defined'.- 'Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance , or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into contract:
OS.4367/2019 9 (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent."
14) Thus, false assertion, active concealment, promise without intention of performing it, any other deceptive act, or any act declared as fraudulent would constitute 'fraud'.
15) In Union of India vs. M/s Chaturbhai M. Patel & Co., [(1976) 1 SCC 747], the Hon'ble Supreme Court was pleased to hold as under :
"7. ... It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt:
per Lord Atkin in A.L.N. Narayanan Chettiyar v. Official Assignee, High Court, Rangoon."
OS.4367/2019 10
16) In Patel Tippeswamy vs. Smt. Gangamma and Others, [2002(3) Kar.L.J. 512B], the Hon'ble High Court of Karnataka was pleased to hold that ".... A party pleading fraud and misrepresentation in respect of a transaction must give material particulars of allegations, and in absence of such particulars, his plea is to be rejected..."
17) In Ranganayakamma and Another vs K.S.Prakash (deceased) by L.Rs and Others, 2006(3) Kar.L.J. 177A (DB)], the Hon'ble High Court of Karnataka was pleased to hold that "... General allegation without particulars are not sufficient".."
18) In Mariyappa K.S. vs. Siddalinga Shetty, 1989(1) Kar.L.J. 150 (DB)], the Hon'ble High Court of Karnataka was pleased to hold that ".. Absence of material particulars regarding fraud OS.4367/2019 11 and collusion, it is not possible to hold that plaint contains necessary averments as to fraud and collusion..."
19) In plaint, it is averred that in the month of October 2011, Defendant No.2 informed Plaintiff that it is essential to keep the original title deeds of suit schedule property in safe deposit locker and took her to the office where a stranger claiming to be an officer of Defendant No.1 took her signatures and photos and assured to keep the original documents in safe custody.
20) It is further averred that in month of December 2018 when Plaintiff required the original documents to show the same to the Government Authority, asked Defendant No.2 to get back the documents. As there was no response from Defendant No.2, she approached Defendant No.1 and requested to hand over the original documents OS.4367/2019 12 which were said to have been kept in safe custody. However, she was informed that she has no account in Defendant No.1.
21) It is also averred that after getting certified copy of the Mortgage Deed, she came to know that Defendants have played fraud on her in obtaining the Mortgage Deed.
22) Plaintiff has deposed as PW.1 reiterating the averments made in plaint. PW.2, who is residing in Bellandur village where Plaintiff and Defendant No.2 reside, in his affidavit filed in lieu of his examination-in-chief, has deposed what has been stated in plaint as if he were witness to the incident.
23) It has been argued that Defendant No.1, in its reply, has admitted that loan amount was not advanced to Plaintiff and therefore, it is clear that Defendant No.1 has committed fraud on Plaintiff.
OS.4367/2019 13
24) In reply dated 27.03.2019 at Ex.P.12 issued by Defendant No.1 in response to the legal notice dated 30.01.2019 at Ex.P.3 issued by Plaintiff, Defendant No.1 has informed that in the year 2009- 10 one Mr.Naveen D.P, approached Defendant No.1 and as per his request, loan was sanctioned to him, and in October, 2011 he desired to give the title deeds of suit schedule property as additional security for the loan obtained by him and accordingly, original owner was brought to the office of Sub-Registrar and simple mortgage was executed by original owner.
25) It is further stated in Ex.P.12 that on 18.10.2011, when legal cell of Defendant No.1 was going through the Mortgage Deed, it came to know that an error had been crept in the mortgage deed to the effect that a sum of Rs.1,75,00,000/- was advanced to first party i.e. Smt. Ambika and same should be mentioned as "first party is mortgaging OS.4367/2019 14 her property in furtherance of the loan amount sanctioned already in favour of Mr.Naveen Kumar".
26) It is also stated in Ex.P.12 that immediately, after coming to know of the error, on 20.10.2011, a Rectification Deed was prepared to Mortgage Deed and same was signed by Plaintiff.
27) Ex.P.1, Mortgage Deed, recites that Second Party has advanced to First Party a sum of Rs.1,75,00,000/-.
28) From the reply issued by Defendant No.1, it can be said that loan amount was not advanced to Plaintiff. Reply at Ex.P.12 can be relied upon to the extent that loan amount was not advanced to Plaintiff, and same cannot be relied upon to say that Defendant No.1 has committed fraud in obtaining Mortgage Deed unless particulars to be stated and proved in the manner known to law.
OS.4367/2019 15
29) It is to be noticed that all allegations that have been levelled against Defendant No.2 in plaint has been admitted by Defendant No.2 in his written statement.
30) Except sending the copy of legal notice at Ex.P.3 to the Registrar of Co-Operative Society, no action has been taken by Plaintiff for the alleged fraud alleged to have been committed by Defendant No.2. Even after admission of plaint averments by Defendant No.2, Plaintiff has not initiated any action against Defendant No.2 for the alleged fraud. No such action can be expected from Plaintiff because Defendant No.2 is her father-in- law. Only thing that can be said is that the alleged fraud is the fine product of collusion of Plaintiff and Defendant No.2.
31) Be that as it may. There are no material particulars in plaint to the effect that how OS.4367/2019 16 Defendant No.1 has committed fraud on Plaintiff in obtaining the Mortgage Deed. In absence of material particulars in plaint regarding the alleged fraud alleged to have been committed by Defendant No.1 and proving of such facts, the is no scope to hold that Defendant No.1 has committed fraud in securing the Mortgage Deed at Ex.P.1.
32) At the same time, the burden lies upon Defendant No.1 to prove that Mortgage Deed at Ex.P.1 has been validly executed by Plaintiff.
33) In the present suit, Defendant No.1 marked its appearance through its advocate, however, it did choose not to file its written statement and to substantiate its contention taken in reply at Ex.P.12 by contesting the case of Plaintiff.
34) In reply at Ex.P.12, Defendant No.1 has taken contention that loan was obtained to one Mr.Naveen OS.4367/2019 17 D.P, and Ex.P.1 was executed by Plaintiff in the year 2011 by mortgaging suit schedule property as additional security for the loan obtained by Mr.Naveen D.P in the year 2009-10. When this is the factual aspect of the case, it is the bounden duty of Defendant No.1 to discharge its burden that Mortgage Deed has been validly executed by Plaintiff.
35) Of course, Mortgage Deed makes it clear that it bears the signatures and photos of Plaintiff and same have not been denied by Plaintiff. Merely because Mortgage Deed bears the signatures and photos of Plaintiff, no presumption can be drawn that Mortgage Deed has been validly executed when dispute arises with respect to execution of Mortgage Deed.
36) Section 59 of the Transfer of Property Act, 1882 makes it mandatory that "when the principal OS.4367/2019 18 money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses".
37) In the present case, mortgage is a simple mortgage, which is shown to have been registered in the office of Sub-Registrar, Bommanahalli, Bangalore; mortgagor is shown to have signed the Mortgage Deed; and two witnesses are shown to have attested the Mortgage Deed. A bare perusal of Mortgage Deed, it can be said that Section 59 of the Transfer of Property Act, has been complied with.
38) When execution of Mortgage Deed is disputed, it is mandatory to examine one of the attesting witnesses to it as contemplated in Section 68 of the Indian Evidence Act, 1872. Section 68 reads thus :
OS.4367/2019 19 " 68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
39) In Rosammal Issetheenammal Fernadez v. Joosa Mariyan Fernadez, [(2000) 7 SCC 189], the Hon'ble Supreme Court was pleased to hold that "Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply".
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40) In the present suit, the whole version of Plaintiff is that she has not executed the Mortgage Deed in respect of suit schedule property. Denial is apparent and specific. Moreover, Defendant No.2, who is one of the attesting witnesses to the Mortgage Deed sails with Plaintiff. In that circumstance, it must be incumbent upon Defendant No.1 to examine one of the attesting witnesses to Mortgage Deed proving the valid execution by Plaintiff. However, Defendant No.1 did choose not to contest the case of Plaintiff by filing its written statement and to examine the attesting witnesses to the Mortgage Deed in order to substantiate its contention taken in reply.
41) In Vidhyadhar vs. Mankikrao and another, [AIR 1999 SC 1441], the Hon'ble Supreme Court was pleased to hold that "where a party to the suit does not appear into the witness box and states his own case on oath and does not OS.4367/2019 21 offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct".
42) In the present case, Defendant No.1 marked appearance, however, he did choose not to contest the claim of Plaintiff by filing written statement. Moreover, contention taken by Defendant No.1 in its reply at Ex.P.12 has not been substantiated by it. In that view, it can be fairly said that valid execution of Mortgage Deed by Plaintiff in respect of suit schedule property is not proved as contemplated in Section 68 of the Indian Evidence Act, 1872, and therefore, it is required to declare the Mortgage Deed as null and void.
43) It is to be noticed that in view of alleged mortgage of suit schedule property in favour of Defendant No.1, the chances of interference by Defendant No.1 with peaceful possession and OS.4367/2019 22 enjoyment of suit schedule property by Plaintiff is not ruled out, and therefore, it is necessary to restrain Defendant No.1 from interfering with peaceful possession and enjoyment of suit schedule property by Plaintiff. Accordingly, I answer the above issues.
44) Issue No.4 : For the foregoing discussion and findings to Issues No. 1 to 3, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed.
(2) Mortgaged Deed dated 17.10.2011, which is registered in the office of Senior Sub-Registrar, Bommanahalli, Bangalore Urban District as Document No.BMH-1-
06308-2011-12, is hereby declared as null and void.
OS.4367/2019
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(3) Defendant No.1 is hereby
directed to handover the original title deeds of suit schedule property to Plaintiff.
(4) Office is hereby directed to send a copy of decree to Senior Sub- Registrar, Bommanahalli, Bangalore Urban District to make a note on the copy of Mortgage Deed dated 17.10.2011 contained in his books the fact of its cancellation.
(5) Draw Decree Accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 15th day of December 2021) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City OS.4367/2019 24 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Smt.Ambika, dtd. 03.03.2020
P.W.2 Sri.Umashankar, dtd. 09.08.2021
(b) Defendants' side : N I L
II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of Simple Mortgage
dtd.17.10.2011 executed by Smt.Ambika in favour of Sree Guru Raghavendra Sahakara Bank Niyamitha Ex.P.2 Certified copy of Gift Deed dtd.28.11.2000 executed by Sri.H.Venkatesh in favour of Smt.Ambika Ex.P.3 Office copy of legal notice dtd.30.01.2019 Ex.P.4 Postal Receipt Ex.P.5 Postal Acknowledgment Ex.P.6 Postal Receipt Ex.P.7 Postal Acknowledgment Ex.P.8 Postal Receipt Ex.P.9 Postal Acknowledgment Ex.P.10 Postal Receipt Ex.P.11 Postal Acknowledgment OS.4367/2019 25 Ex.P.12 Reply notice of Defendant No.1 dtd.27.03.2019 Ex.P.13 Returned RPAD Cover Ex.P.14 Original legal notice dtd.19.03.2019 issued by Plaintiff to the Registrar of Co-Operative Societies Ex.P.15 Postal Receipt Ex.P.16 Postal Acknowledgment Ex.P.17 Letter dtd.12.02.2019 issued by Joint Registrar of Co-operative Societies Ex.P.18 Postal Cover Ex.P.19 Letter dtd.15.04.2019 issued by Joint Registrar of Co-operative Societies Ex.P.20 Postal cover Ex.P.21 Postal Receipt Ex.P.22 Postal Receipt Ex.P.23 Notice dtd.01.04.2019 Ex.P.24 Postal Receipt Ex.P.25 Postal Receipt Ex.P.26 Postal Acknowledgment Ex,P.27 Letter dtd.23.04.2019 Ex.P.28 Track Consignment
(b) Defendants' side : N I L VI Addl. City Civil & Sessions Judge Bengaluru City OS.4367/2019 26