Kerala High Court
Babu vs Sunny@ Varghese on 15 January, 2014
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935
RSA.NO. 1557 OF 2012 ()
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O.S. NO.1449 OF 2007, III ADDITIONAL MUNSIFF'S COURT, THRISSUR
A.S. NO.71 OF 2010, DISTRICT COURT,THRISSUR
APPELLANT(S)/APPELLANT/DEFENDANT:
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BABU
AGED 55, BUSINESS
S/O.KUNNATHUMKARA PHILAMON THOTTATHIL LANE
THRISSUR VILLAGE, THRISSUR TALUK PIN CODE- 680 005.
BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR
SRI.P.VISWANATHAN
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
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SUNNY@ VARGHESE
AGED 63, S/O.THOTTUNGAL SAMUEL, AMALA NAGAR
CHOORAKKATTUKARA DESOM, PUZHAKKAL VILLAGE
THRISSUR TALUK, THRISSUR DISTRICT, PIN CODE.680 555.
BY SENIOR ADVOCATE SHRI N.N.SUGUNAPALAN
BY ADVOCATE SHRI S.SUJIN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.1557 of 2012
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Dated this the 15th day of January, 2014
J U D G M E N T
The following substantial questions of law are framed for a decision:
(i) Whether the courts below are justified in concluding that Exhibit A1 is a mortgage deed and that there is no implied lease especially when certain vital aspects like interest rate for the loan advanced are missing in the registered agreement?
(ii) Whether the courts below are justified in holding that the appellant had taken prevaricating stands by taking all sorts of untenable contentions especially when the respondent herein remained silent without taking any steps for repaying the amount and getting the property re-conveyed even after 29.02.1990?
(iii) Whether the courts below are failed to recognize that Exhibit A1, agreement is not only a transfer for securing money by way of loan but is also a transfer for enjoyment of the property?
(iv) Whether the courts below failed to properly appreciate the evidence, testimony of the appellant herein and surrounding circumstances to ascertain the real intention of the parties while interpreting Exhibit A1, agreement?
R.S.A. No.1557 of 2012 -: 2 :-
2. Challenge in this appeal is to the judgment and decree of the learned District Judge, Thrissur in A.S. No.71 of 2010 confirming the judgment and preliminary decree for redemption of mortgage passed by the learned Munsiff, Thrissur in O.S. No.1449 of 2007.
3. Respondent-plaintiff filed O.S. No.1449 of 2007 for a decree for redemption of mortgage created as per Ext.A1, Registered mortgage deed dated 24.02.1989. According to the respondent, he availed loan of Rs.15,000/- from the appellant/defendant and created security vide Ext.A1. Rs.600/- was the amount payable by the appellant to the respondent by way of profit per month for allowing the appellant occupy the building covered by Ext.A1 and use it for business purpose. The said amount was enhanced to Rs.800/- and then to Rs.1,000/- per month. Respondent issued Ext.A3, notice dated 07.01.1999 demanding redemption of mortgage and tendering the mortgage money. The appellant allegedly sent Ext.A2, reply dated 29.01.1999 claiming that the transaction covered by Ext.A1 is a lease and that the sum of Rs.15,000/- was given to the respondent by way of advance rent.
4. Respondent filed R.C.P. No.122 of 2005 (Exhibit A4 is R.S.A. No.1557 of 2012 -: 3 :- the copy of that petition) demanding eviction. To that petition, the appellant preferred Ext.A5, objection. He contended that Ext.A2, reply was issued not as per his instruction, that the transaction created by Ext.A1 is a mortgage and hence the Rent Control Court has no authority to entertain the application for eviction. Appellant filed Ext.A7, application to decide maintainability of R.C.P. No.122 of 2005. That application was disposed of by Ext.A8, order. Learned Rent Controller, accepting the submissions made by the parties and referring to Ext.A1 observed that the transaction is a mortgage, dismissed R.C.P. No.122 of 2005 as not maintainable. It is thereafter that the respondent has filed the suit seeking redemption of the mortgage.
5. Appellant resisted the suit on various grounds including that the suit is barred by limitation. Respondent filed additional pleading claiming that the appellant has admitted his status as a mortgagee vide Ext.A5, objection to R.C.P. No.122 of 2005. The appellant filed additional written statement claiming that the respondent is estoped from pleading mortgage in view of averments in Ext.A4, petition in R.C.P. No.122 of 2005. The appellant also claimed that he is a tenant of the building in the R.S.A. No.1557 of 2012 -: 4 :- property covered by Ext.A1 and that he is liable to be evicted only in accordance with the provisions of Act 2 of 1965.
6. Learned Munsiff held that Ext.A1 created a mortgage. A preliminary decree for redemption was passed. The respondent was directed to deposit the mortgage money of Rs.15,000/-. That judgment and decree were confirmed by the first appellate court.
7. It is contended by the learned counsel for the appellant that in view of the nature of transaction covered by Ext.A1, the finding of the courts below that it is a mortgage cannot be accepted. Further contention is that at any rate, enhancement of monthly profit payable is not part of the mortgage transaction since such enhancement is not as per any registered deed. The enhanced payment made by the appellant is to be refunded to him. Respondent is liable to deposit that amount also while redeeming the mortgage. The further contention is that the suit is barred by limitation.
8. Learned counsel for the respondent has contended that in view of Article 61 of the Limitation Act (for short, "the Act"), plea regarding limitation cannot be entertained. It is further contended that in view of Ext.A5, objection to R.C.P. No.122 of 2005, Ext.A7, application and Ext.A8, order the R.S.A. No.1557 of 2012 -: 5 :- appellant cannot turn round and contend that he is a building tenant or that the transaction covered by Ext.A1, is not a mortgage. It is also argued that there is no plea raised either in the written statement or the additional written statement that monthly profit paid in excess of Rs.600/- is liable to be refunded to the appellant.
9. So far as the plea of limitation is concerned, Ext.A1 is dated 24.02.1989. Time for redemption provided as per Ext.A1 is 23.02.1990. Under Article 61 of the Act the respondent has 30 years from 23.02.1990 to seek redemption of mortgage. The suit is filed within that period. Hence the contention that the suit is barred by limitation cannot be accepted.
10. On the question whether Ext.A1 is a lease or mortgage arrangement I must notice that in Ext.A5, objection in answer to Ext.A4, application (R.C.P. No.122 of 2005) the appellant has contended that he is a mortgagee of the building. In Ext.A7 he asserted and wanted the Rent Control Court to decide the maintainability of R.C.P. No.122 of 2005. Exhibit A8 shows that the appellant asserted, respondent agreed and the Rent Control Court, referring to Ext.A1 also found that the transaction is a mortgage. In view of Exts.A5 and A7, the appellant R.S.A. No.1557 of 2012 -: 6 :- is estoped from contending that the transaction covered by Ext.A1 is anything other than a mortgage. Exhibit A8, order would operate as res judicata on the present contention of the appellant that he is a building tenant. Moreover, based on Ext.A1, the Rent Control Court in R.C.P.No.122 of 2005 and the courts below in the present litigation have found that the transaction is a mortgage. I do not find reason to differ. Hence the contention that the transaction is not a mortgage, it is a lease cannot stand as rightly found by the courts below.
11. What remains is that the contention that enhancement of profit payable per month to Rs.800/- and then to Rs.1,000/- per month not being as per registered documents cannot be treated as part of Ext.A1 and hence is refundable to the appellant. Learned counsel argued that the terms and conditions of a registered agreement could be altered or modified only by another registered agreement unless it comes within the mischief of Sec.92 of the Evidence Act. That situation does not arise and hence enhancement of monthly profit to Rs.800/- and then to Rs.1000/- cannot be treated as part of Ext.A1, transaction.
12. Learned counsel for the respondent has replied and R.S.A. No.1557 of 2012 -: 7 :- rightly, that no such plea is raised by the appellant in his written statement or additional written statement. In so far as no such plea is raised, no such question arise for decision in this appeal. If it is otherwise open to the appellant to raise that contention in the final decree proceeding, it is open to him to do so.
13. The substantial questions of law framed are answered as above.
The appeal fails. It is dismissed without any order as to costs.
THOMAS P.JOSEPH, JUDGE.
vsv