Delhi District Court
Sanjeev Kumar vs Smt. Bhawna on 1 August, 2018
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No. 9402/16
In the matter of :
Sanjeev Kumar
S/o Late Sh. Vijay Singh,
R/o 1688, Chopal, Kotla Mubarakpur,
New Delhi110003. .....Plaintiff.
Vs
1. Smt. Bhawna,
W/o Rajinder Singh
R/o 1642, Kotla Mubarakpur,
New Delhi110003.
Also At :
1705, Rishi Nagar,
Kotla Mubarakpur,
New Delhi110003.
2. Rajinder Singh
Proprietor of Shree Jee Traders
377, Asola Extension,
New Delhi
3. Punjab & Sindh Bank
Through Branch Manager,
Delhi Heart & Lung Institute
3, Mandir MargII, Panchkuian Road,
Delhi110055. ......Defendants.
Date of institution : 10.06.2016
Date on which order was reserved : 03.04.2018
Date of pronouncement of the order : 01.08.2018
CS 9402/16
Sanjeev Kumar vs. Bhawna & Ors. Page 1 of 39
JUDGMENT
Vide this judgment I shall decide the suit for declaration with consequential relief.
1. The plaintiff seeks declaration of title over property described as II & III floor of property bearing no. 729/6 part of khasra no.282, Bhola Nagar, Kotla Mubarakpur, New Delhi03 alongwith consequential relief of directing the defendants to supply the original documents of the suit property and restraining the defendants from dealing with the suit property or interfering in the possession of the plaintiff over the suit property in any manner whatsoever. The plaintiff contends that defendants number 1 and 2 in the month of November 2014 had approached the plaintiff for the sale of the ground floor, 2nd floor and 3rd floor of property bearing number bearing no. 729/6 part of khasra no.282, Bhola Nagar, Kotla Mubarakpur, New Delhi03. The defendants had represented that they needed money in order to repay their loans with the Punjab and Sind bank as the defendant number 2 was running a proprietorship business which had taken certain overdraft limits from the defendant number 3 bank for which the defendant number 1 had stood as guarantor and the original documents of the property were kept as collateral. That the defendants number 1 and 2 had disclosed that apart from keeping the original documents of property against the overdraft limit of account number 09081300009053, there was no other encumbrance whatsoever against the suit property. That the plaintiff in order to satisfy himself and duly verify the representation of defendant number 1 and 2 went to the office of the defendant number 3 along CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 2 of 39 with the defendant number 2 and personally met the branch manager. It was informed by the branch manager that upon the payment/clearance of entire loan, the original document of the suit property would be released to the defendant number 1, who in turn can release the documents to plaintiff. The branch manager had not communicated about any other encumbrance over the suit property except the overdraft limit outstanding for around 16.5 lacs. That the plaintiff relying upon the representation made by the defendants and having bonafide investigated the title and encumbrances over the property agreed to buy the II & III floor of property bearing numbers 729/6 part of khasra no.282, Bhola Nagar, Kotla Mubarakpur, New Delhi03. It was agreed that the plaintiff shall release the sale consideration in respect of the suit property in favour of the defendant number 1 and shall also pay the total amount of outstanding loan in the overdraft account of the defendant's firm against which the original documents of property have been kept as collateral. It was agreed that upon payment of the loan and execution of the sale deed the defendant number 1 and 2 shall get the document of the suit property released from the defendant number 3 and this was so assured by the branch manager. That the plaintiff vide sale deed bearing registration number 705 dated 31 st of January 2015, registered with SubRegistrarV, acquired the right, title and interest over the suit property being II & III Floor of property bearing no.729/6, Admeasuring 40 sq. Yds (Approx), Part of Khasra No.282, Bhola Nagar, Kotla Mubarakpur. The plaintiff thereafter also started repaying the entire dues outstanding against account CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 3 of 39 No.09081300009053 in the month of April 2015, pursuant to which the account stand closed. The defendant No.1 & 2 thereafter had to fulfill their obligations by getting the original documents of suit property released from the defendant no.3 bank. It is submitted that the plaintiff alongwith defendant no.2, personally met the branch official of defendant no.3, after April 2015, who assured to return the original documents over a period of time, as per the due procedure. It is submitted that after lapse of more then two months, the plaintiff again asked the defendant no.1 & 2 to get the original retrieved, however, the defendant no.1 & 2 for reasons best known refrained from entertaining the request. It is submitted that the plaintiff on his own visited the defendant no.3, where the branch manager refused to entertain the plaintiff's request and also did not recognize the plaintiff as appropriate party to raise grievances for release of original documents. The defendant no.3 having assured to return the original upon repayment of the loan are debarred from interacting and withholding the original documents when the loan stand repaid. It is submitted that the plaintiff has thereafter made innumerable demands, however, the defendant no. 1 & 2 are ignoring the request. The official of defendant no.3 despite holding out promise to release the original documents. It is submitted that there is no outstanding against the loan accout no. 09081300009053 for which the original documents of suit property was kept as a security. It appears that the defendant no.1 & 2 alongwith the defendant no.3 are collusive tying to misuse the original documents of the suit property by creating title in favour of some third party. The plaintiff in the end of May 2016, CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 4 of 39 has come across the property brokers in the vicinity who are claiming that the property is up for sale by the defendant no.1 & 2. The defendant in unison have hatched plan to illegally usurp the property of which the right, title and ownership stand legally and bonafidely transferred to plaintiff. The plaintiff has brought the property for valuable consideration and after bonafide investigation into title. None of the defendant has right to disturb the ownership, title of the plaintiff or to otherwise encumber or deal with the suit property.
2. The defendants number 1 and 2 filed a joint written statement contenting inter alia that the suit discloses no cause of action against the defendants number 1 and 2 as the title documents of the property are lying with the defendant number 3 and the defendants number 1 and 2 have cleared the dues for which the title documents were mortgaged and therefore the defendant number 3 has no right to retain the documents and that at time of selling of the property it was agreed and clarified that the defendants number 1 and 2 shall not be responsible for the return of the title documents. The defendants number 1 and 2 had undertaken that they shall sign all documents necessary for retrieving the title documents from Defendant No. 3 and the defendants number 1 and 2 are still ready and willing to sign the document however the efforts for retrieving the title documents of the suit property from the defendant number 3 are to be made at the instance of the plaintiff himself and the plaintiff instead of taking the appropriate steps has filed the present suit unnecessarily dragging the defendants number 1 and 2 into litigation. The defendants 1 and 2 are CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 5 of 39 in agreement with the case of the plaintiff that the defendant number 3 cannot retain the document and that the defendant number 3 has no lien on the suit property. The defendants number 1 and 2 do not dispute the title of the plaintiff over the suit property and accept that a valid title has passed unto the plaintiff upon the execution of the sale deed in respect of the suit property.
3. The defendant number 3 bank has filed a separate written statement raising the preliminary objection that the plaintiff has filed the present suit seeking declaration over the property bearing no.729/6, II nd Floor / III rd floor, Part of Khasra no.282, Bhola Nagar, Kotla Mubarakpur, New Delhi110003 admeasuring 40 sq yards (hereinafter referred to as the "said property"). Further, the plaintiff is also seeking a relief in the form of directions to the defendants to supply the original documents of the said property and also to restrain the defendants from dealing with the said property in any manner whatsoever. The present suit is pending adjudication before this Hon'ble Court and is listed for hearing on 25.10.2016. The defendant no.3 ie., Punjab & Sindh Bank, is a body corporate constituted under the Banking Companies ( Acquisition & Transfer Undertaking Act), 1970, having its Head Office at 21 Rajendra Palace, New Delhi08 and interalia one of its branch offices at Delhi Heart & Lung Institute, Panchkunian Road, New Delhi. Mr. Ashok Kumar, Assistant General Manager, Authorized Signatory of the defendant bank posted at its Hblock, Connaught Place Branch, New Delhi is holder of Power of Attorney in his favour and as such is duly CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 6 of 39 competent and authorized to file the present written statement is being filed, signed and verified by the Authorized Signatory of the defendant bank. At the outset it is submitted that the present suit is a collusive suit between the plaintiff and the defendant no.1 & 2 as the said property has already mortgaged to the defendant no.3 Bank by the defendant no.1 prior to th filing of the present suit. Hence, the sale deed executed between the plaintiff and the defendant no.1 & 2 on the basis of which suit has been filed is null and void under law and therefore, the present suit is liable to be dismissed at the threshold with exemplary costs. It is submitted that suit is bad in law for mis joinder of the defendant no.2 ie., Mr. Rajender Singh and nonjoinder of Mr. Bijendeer Sharma. The present suit is filed against the defendant no.2 and the defendant no.2 is being sued as proprietor of M/s Shreejee Traders, whereas as per the records maintained with the defendant no.3 Bank, Mr. Bijender Sharma was also shown as proprietor of M/s. Shreejee Traders. Hence, Mr. Bijender Sharma is the necessary party for the proper adjudication of the present suit and the plaintiff has deliberately not impleaded Mr. Bijender Sharma and thus the present suit is liable to be dismissed on this ground alone. It is submitted that the present suit is liable to be dismissed on this ground alone. The present suit is a classic example of cheating and forgery committed by defendant no.1 & 2 in collusion with the plaintiff by creating third party right over a property already mortgaged with the defendant no.3 Bank and the present suit is nothing but a gross abuse of process of law and thus, be dismissed with costs. It is submitted that in the month of June 2012, one Mr. CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 7 of 39 Bijender Sharma approached the defendant no.3 Bank for grant of a loan of Rs.15,00,000/ in the name of his proprietorship concern ie., M/s. Shreejee Traders for the purpose of running its business (hereinafter referred to as said loan). The defendant no.3 bank granted the said loan vide sanction letter dated 29.06.2012. Further, Mr. Bijender Sharma, being the proprietor of M/s. Shreejee Traders had executed various documents on behalf of M/s. Shreejee Traders in order to secure the repayment of the said loan. Furthermore, it is pertinent to mention here that the defendant no.1 stood as guarantor for the repayment of the said loan availed by Mr. Bijender Sharma in the name of M/s. Shreejee Traders. Further, the defendant no.1 in order to secure the repayment of the said loan also stood as mortgagor and created an equitable mortgage over the said property by depositing the original title deed ie., sale deed registered on 27.11.2009 pertaining to property no.729/6, II nd Floor, admeasuring 40 sqr yards being part of Khasra no.282, situated at Bhola Nagar, Kotla Mubarakpur and the sale deed registered on 22.09.2009 pertaining to property no.729/6, III rd Floor, admeasuring 40 sqr yards being prt of Khasra no.282 situated at Bhola Nagar, Kotla Mubarakpur, New Delhi. The creation of the equitable mortgage was also confirmed by the defendant no.1 by executing two forms no.84 AA ® both dated 29.06.2012 in respect of the aforementioned two properties at branch office of the defendant no.3 Bank at Delhi Heart and Lung Institute, Panchkunian Road, New Delhi. The proprietor of M/s Shreejee Traders ie., Mr. Bijender Sharma duly availed and utilized the said loan to M/s. Shreejee Traders and the repayment of CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 8 of 39 the same was duly made. However, till date there is no released of the mortgage of the said property by defendant no.3 Bank, owing to the defaults committed by defendant no.1 & 2 in other loan accounts maintained with defendant no.3 Bank. As a matter of right, the defendant no.3 Bank is entitled to enforce liability of defendant no.1 & 2 to repay dues in other accounts maintained with defendant no.3 Bank and thus, the said property was never released from mortgage. In this regard the relevant portions of the guarantee deed being Form no.255 (RR) executed by defendant no.1 are quoted below for the ready reference of this Hon'ble Court : "Notwithstanding anything hereinafter contained my / our liability under the present shall extend to all accounts of the customers, whether the same is the account or are the accounts of such customers solely, or the account or the accounts of a concern of which such customers is the sole proprietor or is the account or are the accounts on which such customer may become liable jointly in any manner whatsoever with any company or firm or person and whether such account or accounts stands or stand either in the name of the customer himself or in the name of any concern of which he is the sole proprietor or in any other name, and in the same shall not be affected by any change in the name of accounts or any change in the constitution of the Bank, its successors or assigns or by its absorption in or by its amalgamation with any other Bank or Banks. "
The impugned sale deed in favour of plaintiff by defendant no.1, despite mortgage of the same property, amounts to CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 9 of 39 commission of various grave offences under the Indian Penal Code, 1860 for which Defendant no.3 Bank reserves their right to initiate appropriate criminal proceedings against defendant no.1, 2 as well as plaintiff before Court of Law. It is pertinent to mention that the defendant no.1 & 2 had also availed a housing loan for a sum of Rs.20,00,000/ from the defendant no.3 Bank from its branch office at 139A Arjun Nagar, Kotla Mubarakpur, New Delhi03 (hereinafter referred to as LoanI) and in order to secure the repayment of the loanI defendant no.1 stood as mortgagor and created an equitable mortgage over her immovable property be depositing the original title deeds ie., sale deed registered on 12.01.2012 of property no.1616 First Floor, Kotla Mubarakpur, Near Bapu Park, New Delhi03 (hereinafter referred to as property no.1) with the defendant no.3 Bank. The creation of equitable mortgage was also confirmed by defendant no.1 by executing form no.84A ( R ) on 27.01.2012 at branch office of defendant no.3 Bank, Kotla Mubarakpur. The defendant no.1 & 2 despite admitting their liability and executing the balance and security confirmation letter, dated 23.09.2014, for a sum of Rs.18,69,841/ miserably failed and neglected to regularize the account and liquidate the loanI bearing account no.09731200000080 maintained with the defendant no.3 Bank. The defendant no.1 & 2 committed defaults in payment of their outstanding dues and failed to adhere to financial discipline of the defendant no.3Bank and hence the defendant no.3 Bank was constrained to issue demand notice under section 13 (2) of the Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 dated CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 10 of 39 14.05.2015 calling upon the defendants to pay to the defendant no.3 bank a sum of Rs.19,63,935/ inclusive of interest upto 30.04.2015. However, the defendant did not care to respond to the abovementioned demand notice. Since the account of the defendant no.1 & 2 became nonperforming the defendant no.3 Bank as per the practice declared the LoanI as NPA on 31.12.2014. It is pertinent to mention here that the defendant no.1 in collusion with the defendant no.2 had created two sale deeds in respect of the said property no.1 by changing its property number, first being property no.1616, First Floor, Kotla Mubarakpur, near Bapu Park, New Delhi03 and the second one by adding the letter "A" ie., property no.1616A First Floor, Kotla Mubarakpur near Bapu Park, New Delhi03. The defendant no.1 & 2 hd availed two loans one being the said housing loan and the second loan was availed from the NFC branch of the defendant no.3 Bank (ie., loanII). In this regard, it is submitted that defendant no.1 has availed the aforementioned two loans by creating mortgage over the same property being the said property no. I by changing only description of the property no. I. Hence, it is crystal clear that the aforementioned conduct of the defendant no.1 in collusion with the defendant no.2 amounts to fraud, cheating and criminal breach of trust punishable under the Indian Penal Code, 1860. It is submitted that the defendant no.1 & 2 with an intention to cause wrongful loss to the defendant no.3 Bank and wrongful gain to the defendant no.1 & 2 created two forged sale deeds of the same property and deposited the same with two different branches of the defendant no.3 Bank to obtain different loans. Moreover, the CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 11 of 39 defendant no.1 & 2 have miserably failed to cooperate with the defendant no.3 Bank and refused to issue any clarification regarding the said property no. I mortgaged with the defendant no.3 Bank. However, the said property no. I had been auctioned by the NFC of the defendant no.3 Bank under SARFESI Act in order to satisfy their outstanding dues in the loanII. The defendant no.1 had issued a notice dated 29.04.2016 to the defendant no.3 Bank to release the said property. The defendant no.3 Bank vide its reply dated 06.05.2016 duly replied to the aforementioned notice, wherein it was specifically mentioned that defendant no.2 alongwith the defendant no.1 herein, had also availed the loanI which is on the verge of being declared NPA and had also availed one more loan from the NFC branch of the defendant no.3 Bank which was already declared NPA and the concerned branch had already proceeded under SARFESI Act and auctioned the property mortgaged in the aforementioned loan account. Thus, the defendant no.3 Bank cannot release the mortgage property ie., the said property to the defendant no.1 herein. It is not out of place to mention here that the defendant no.3 Bank has already filed an Original Application before the Debt Recovery of the loanI due to the defendant no.3 Bank and thus the present suit is nothing but abuse of process of law to mislead this Hon'ble Court. It is evident from the facts and circumstance of the present case that the plaintiff in collusion with the defendant no.1 & 2 has played fraud upon this Hon'ble Court as well as defendant no.3 Bank by executing an illegal sale deed and by praying for the relief of declaration of title on the basis of time. In view of the above it is apparent that the defendant CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 12 of 39 no.1 & 2 being well aware of the fact that the said property has already been mortgaged to the defendant no.3 Bank had created third party rights in favour of the plaintiff. The defendant no.2 has also stood as witness in this illegal sale deed executed in favour of plaintiff. Further, the defendant no. 3 Bank has already informed the defendant no.1 that the said property cannot be released until the payment of the outstanding amounts in the aforementioned loan accounts are not cleared. Hence, it is crystal clear that the present suit is nothing but a collusive act of the plaintiff alongwith the defendant no.1 & 2 with the sole purpose of defeating the recovery of the legitimate dues of the defendant no.3 Bank.
4. Upon completion of the pleadings the following issues are settled for adjudication vide order dated 24.05.2017 :
1. Whether the plaintiff is entitled to a decree of declaration in favour of the plaintiff and against the defendant thereby declaring that the plaintiff is the owner of the property bearing no. 729/6, II and III floor admeasuring 40 Sq. Yards approximately, forming part of Khasra No. 282, Bhola Nagar, Kotla Mubarakpur, New Delhi? OPP.
2. Whether the plaintiff is entitled to a decree of mandatory injunction in favour of the plaintiff and against the defendant, thereby directing the defendants to release the original papers of property described as 729/6 II and III floor admeasuring 40 Sq. Yards approximately, forming part of Khasra No. 282, Bhola Nagar, Kotla Mubarakpur, New Delhi? OPD.CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 13 of 39
3. Whehter the plaintiff is entitled to decree of permanent injunction, thereby restraining the defendants from using the original documents of the property described as 729/6 II and III floor admeasuring 40 Sq. Yards approximately, forming part of Khasra No. 282, Bhola Nagar, Kotla Mubarakpur, New Delhi, for any purpose and from dealing with the property in any manner whatsoever and from interfering in peaceful possession of the plaintiff over the suit property?
4. Whether the suit for declaration and injunction is bad for misjoinder of parties ? OPD 1 and 2.
5. Whether the suit for declaration and permanent injunction is instituted without any cause of action against the defendants no. 1 and 2? OPD 1 & 2.
6. Whether the suit for declaration and permanent injunction in not maintainable as it is collusive suit between the plaintiff and defendant no. 1 and 2? OPD 3.
7. Whether the suit for declaration and permanent injunction is bad for non joinder of necessary party namely Mr. Bijender Sharma? OPD 3.
8. Whether the suit for declaration and permanent injunction is not maintainable as the suit property described as 729/6 II and III floor admeasuring 40 Sq. Yards approximately, forming part CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 14 of 39 of Khasra No. 282, Bhola Nagar, Kotla Mubarakpur, New Delhi was mortgaged by defendant no. 1 and 2 with defendant no. 3 bank as security for repayment of loan amount of Rs. 15 Lakhs disbursed in the name of proprietorship concern M/s Sree Jee Traders of Sh. Bijender Sharma with defendant no. 1 as guarantor thereby creating an equitable mortgage by deposit of original title deeds ? OPD 3.
9. Whether the defendants no. 1 and 2 have paid the entire amount outstanding in respect of loan account no. 09081300009053 and therefore the defendant no. 3 has no right to withhold the return of the original title deeds in respect of the suit property deposited as security to ensure the repayment of loan amount of Rs. 15 Lakhs by way of an equitable mortgage? OPD 1 & 2.
10. Whether the plaintiff has paid the loan amount in the name of the defendants no. 1 & 2 from defendant no. 3? OPP.
11. Relief.
5. The present suit was consolidated for the purposes of trial along with civil suit bearing number 695 of 2016 and evidence recorded in civil suit number 695 of 2016 was ordered to be read as the evidence lead in the present suit as civil suit number 695 of 2016 was treated as the lead case.
6. The plaintiff has stepped into the witness box as PW I and CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 15 of 39 besides the affidavit in evidence has tendered sale deed dated 31.01.2015 as Ex. PW1/1; sale deed dated 31.01.2015 in respect of second and third floor as Ex.PW1/2; original slip dated 11.03.2015 for deposit of Rs.3,00,000/ as Ex.PW1/3; original deposit slip dated 19.02.2015 for Rs.10,000/ as Ex.PW1/4; original slip dated 07.07.2015 for Rs.10,30,000/ as Ex.PW1/5; electricity bill dated 23.10.2015 as Ex.PW1/6; electricity bill dated 23.10.2015 for the second and third floor as Ex.PW1/7 and Ex.PW1/8; site plan as Mark A. The defendant no.2 is examined as DW1 who has tendered into evidence his affidavit by way of examination in chief and is cross examined by the plaintiff and on behalf of defendant no.3. The defendant no.3 has examined Ms. Manju Khanna its Senior Manager as DW2. DW2 besides the affidavit in evidence has tendered power of attorney dated 30.09.2016 as Ex.DW2/A (OSR); written statement as Ex. DW2/B, power of attorney as Ex. DW2/D, Authorisation Letter dated 04.08.2016; Form no.84AA ( R ) dated 29.10.2012 as Ex.DW2/F; sale deed as Ex. DW2/G; sanction letter dated 29.10.2012 as Ex. DW2/H; form no.192 as Ex. DW2/I; Form no.199 as Ex. DW2/J; Form no. 256 ( R ) guarantee agreement as Ex.DW 2/K; sanction letter dated 29.12.2011 for loanI as Ex. DW2/L; Form no.84 A ( R ) executed by defendant no.1 & 2 as Ex. DW2/M; sale deed registered on 12.01.2012 of property no. I as Ex.DW2/N; balance security confirmation letter dated 23.09.2014 executed by defendant no.1 & 2 as Ex. DW2/O; Demand notice under SARFESI Act dated 14.05.2015 as Ex. DW2/P; notice dated 29.04.2016 used by defendant no.I as Ex. DW2/Q; reply dated 06.05.2016 issued by CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 16 of 39 the defendant no.3 as Ex. DW/R; deposit slip dated 23.12.2014 as Ex. DW2/S; complaint dated 30.11.2016 as Ex. DW2/T; sale deed as MarkDW2/A. Defendant no.3 has also examined Mrs. Rajni Gill Vaidman, Manager as DW3 and besides the affidavit in evidence hs tendered Authorisation Letter dated 21.09.2017 as Ex. DW3/A; Written Statement as Ex. DW3/B; power of attornies as Ex. DW3/C colly., sanction letter dated 29.06.2012 as Ex. DW3/D, agreement of hypothecation of Debt & Assets dated 29.06.2012 as Ex. DW3/F; Form No.199 as Ex. DW/3/G; form No. 192 as Ex. DW3/H; Form no.255 (RR) executed by defendant no.1 as Ex. DW3/I; Affidavit dated 29.07.2012 as Ex. DW3/J; Form no.84 AA ( R ) dated 29.06.2012 as DW3/L; sale deed of third floor as Ex. DW3/M; sanction letter dated 29.12.2011 for loanI as Ex. DW3/N; form no.84 A ( R ) as Ex. DW3/O; sale deed dated 12.01.2012 as Ex. DW3/P; balance security confirmation dated 23.09.2014 as Ex. DW3/Q; demand notice dated 14.05.2015 as Ex. DW3/R (colly.) alongwith postal receipt; sale deed as Mark DW3/A; notice dated 29.04.2016 as Ex. DW3/S; Reply dated 06.05.2016 as Ex DW3/T (colly.) alongwith postal receipt; statements of account as Ex. DW3/U; complaint dated 03.01.2017 as Ex. DW3/V.
7. My issue wise findings are as under: I have found it to be of considerable expedience to gather at the outset facts on which there is no contest between the parties. It emerges as the admitted case of the parties that the defendant no. I purchased the II floor and III floor of property bearing No. 729/6, CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 17 of 39 measuring 40 sq. yards (approx), part of Khasra No. 282, situated at bhola Nagar, Kotla Mubarakpur New Delhi from Smt. Raj Messy vide two separate sale deeds registered on 27.11.2009 & 19.09.2009 respectively with the subregistrar V, New Delhi. The mandatory injunction prayed for pertains to these two sale deeds, which I shall be referring hereinafter as the sale deeds in question. The defendant no. I thereafter sold/ conveyed/ transferred/assigned/ parted with all ownership rights, title, interest, claim in the said properties as acquired vide the sale deeds in question unto the plaintiff by execution of sale deed dated 30.01.2015 in favour of the plaintiff registered on 31.02.2015 vide Registration No.705, in Book No. I, Vol. No. 13660 at pages 68 to 77. The property the subject matter of the above referred two sale deeds is the property in question in respect of which the plaintiff seeks a declaration of ownership in his favour. The material propositions of fact alleged by the plaintiff and the defendants as such are not rigorously contested by the parties against each other as the facts are premised and derived and founded upon documents. It is the propositions of law emanating from the clauses incorporated in the documents, execution whereof is largely admitted by the parties concerned alleged by one that are refuted by the party opposite. It is further the admitted case of the parties that an equitable mortgage by deposit of the title deeds in question was created over the property in question in order to secure the repayment against the overdraft limit facility availed from the defendant no. 3 bank by M/s Shree Jee Traders. The proprietorship concern of one Sh. Bijender Sharma. The amount advanced vide sanction letter dated CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 18 of 39 29.06.2012 was in the sum of Rs. 15,00,000/ at 13% rate of interest per annum. The defendant no. I had also stood as guarantor against the OD limit advance repayment alongwith one Smt. Pushpa. The borrowers stock in trade was also hypothecated to secure the advance against the OD limit. The defendant no. 1 in the capacity as the guarantor had signed an undertaking Form No. 199 with the defendant No. 3 bank in respect of the cash credit advanced. It is the case of the plaintiff that the defendant no.1 & 2 had approached the plaintiff somewhere in the month of November 2014 for the sale of the ground floor, second floor and third floor of property bearing no. 729/6, admeasuring 40 sq. yards (approx), part of Khasra No. 282, Bhola Nagar, Kotla Mubarakpur, New Delhi representing that they were in need of money in order to repay their loans as the defendant no. 2 was running a proprietorship business under the name and style of Shree Jee Enterprises which had taken certain over draft limits from defendant no. 3 bank of which the defendant no. 1 had stood as guarantor and the original title deeds of the property in question was kept as collateral and the defendants had assured that there was no other encumbrance whatsoever against the suit property and the plaintiff having carried out due diligence, investigated the title of the defendants in the suit property and the encumbrances against the suit property from the defendant no. 3 bank and was informed by the defendant no.3 that besides the equitable mortgage to secure the advance availed against the overdraft limit of M/s. Shreejee Traders there was no other encumbrance over the suit property. The plaintiff further contends that the plaintiff and the defendants 1 and 2 arrived CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 19 of 39 at an agreement that the plaintiff shall release the sale consideration for the suit property to the defendant no. I and shall also pay the total amount of outstanding loan in the overdraft loan account of the firm Shree Jee Traders against which the original documents of suit property were kept as collateral and that the plaintiff repaid the balance outstanding against the overdraft limit by April 2015 and the loan account stood closed on 27.04.2015. Therefore, it is alleged by the plaintiff that absolute and undisputed title is acquired in the property in question by the plaintiff upon the execution of the sale deed in favour of the plaintiff registered on 31.01.2015 and the plaintiff is bona fide purchaser for consideration and is entitled to be declared as the absolute and rightful owner of the property in question by virtue of the registered sale deed dated 31.01.2015. The defendant no. 1 & 2 do not dispute the right, title or interest of the plaintiff in the property in question and admit to all propositions of facts alleged by the plaintiff. Defendant No. 3 does not as such dispute the title of the defendant no. 1 & 2 or of the plaintiff over the property in question but alleges that the sale deed executed in respect of the property in question is collusive illegal and fraudulent and that the property in question was never released from mortgage and the defendant no. 3 has the right to apply the property in question towards satisfaction of the outstanding balance against a housing loan availed by the defendant no. 1 & 2 in respect of which the defendants no. 1 & 2 are defaulter as the bank has a general lien over the title deeds of the property in question deposited with the defendant no. 3 till the repayment of the outstanding against the housing loan availed CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 20 of 39 by defendants no.1 and 2 defendant no.1 & 2 being husband and wife. The onus now shifts upon the defendant no. 3 to establish the allegations of fact asserted by the defendant no. 3 as the defendant no. 3 admits that the entire loan/balance outstanding in respect of the overdraft limit to secure the payment of which the equitable mortgage by deposit of title deeds of the property in question was created stands repaid. The plaintiff alleges that the payment is made by him the defendant no.3 contends that the payment is made by the proprietor of Shree Jee Traders in respect of the overdraft limit availed in the name of the proprietorship concern. The defendant no. 3 disputes that the payment is made by the plaintiff. The defendants no. 1 & 2 admit that the amounts paid towards the balance outstanding against the overdraft limit were extended by the plaintiff. What is material in the facts and circumstances so far as the contention of the defendant no. 3 that the property in question was not released from mortgage is under consideration is that the entire payment against the advance to secure the repayment against the advance to secure the repayment of which the property in question was mortgaged stood paid to the satisfaction of the defendant no. 3 bank as on 27.04.2015.
8. It is the case of the defendant no. 3 that though the payment to satisfy and extinguish the balance outstanding against the overdraft limit was made and the loan account stood closed however the property was not released of the mortgage as the defendant no. 1 and 2 have defaulted on two other loans availed from the defendant CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 21 of 39 no. 3 and out of which one housing loan still remains outstanding in respect of which proceedings are pending before the Debt Recovery tribunal. The document executed by the defendant no. 1 & 2 in respect of house loan availed in the sum of Rs. 20 Lacs from the defendant no. 3 bank, at its Kotla Mubarakpur branch, are tendered as Es. DW2/2 and Ex. DW2/M, alongwith a balance security confirmation letter dated 23.09.2014 as Ex. DW2/O. A perusal whereof reveals that a housing loan in the amount of Rs. 20 lacs alongwith interest to be repaid in equated monthly installment of Rs. 23000/ each over a period of 24 months was sanctioned in favour of defendant no. 1 and 2 vide sanction letter dated 29.12.2011. As collateral security for the principal interest and due thereon, the defendant 1 and 2 had also deposited the document of title in respect of property bearing no. 1616, First Floor, Kotla Mubarakpur, Near Bapu Park, New Delhi. (Referred to as property no. 1 herein after) to be held till the debt is fully paid with the assurance that the property mortgage is not already encumbered. The sale deed deposited with the defendant Bank of property no. 1 is placed on record as Ex. PW2/N. Besides a Demand Promissary note dated 29.12.2011 for Rs. 20 lacs was also executed by defendant 1 and 2 borrowers. On 23.09.2014, a balance and security confirmation letter was executed by the defendant 1 and 2 acknowledging their liability for payment of the amount mentioned in the promissory note acknowledging and confirming that an amount of Rs. 18,69,841/ is outstanding principal sum as on 23.09.2014. The defendant 1 and 2 were unable to maintain the financial discipline and pay the equated monthly CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 22 of 39 statements as per the terms of the sanction letter and due to persistent defaults, the loan, account was declared a nonperforming asset on 31.11.2014.
9. The negotiations for the sale/purchase of the property in question were initiated around this period November 2014, as per the case of the plaintiff and the defendants 1 & 2 and payment of the outstanding against the overdraft limit against which the property in question was mortgage was made on 29.04.2015 and the sale deed in question is registered on 31.01.2015. The defendant 1 and 2 had become defaulters in respect of the housing loan when the property in question is sold to the plaintiff by the defendants 1 and 2. Section 53 of the Transfer of Property Act, 1882 lays down that the every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. The statute provides as follows: "......53 Fraudulent transfer (1) Every transfer of Immovable property made with intent to defeat or delay the creditor of the transferor shall be voidable at the option of any creditor so defeated or delayed.
Nothing in this subsection shall impair the rights of a transferee in good faith and for consideration. Nothing in this subsection shall affect any law for the time being in force relating to insolvency.
A suit instituted by a creditor (which tine CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 23 of 39 includes a decree holders. Whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of or for the benefit of all creditors......"
10. The defendant no. 3 alleges that the execution of the sale deed in respect of the property in question in favour of the plaintiff by the defendant no. 1 is a fraud played upon the defendant no. 3 bank as well as the court. The defendant no. 3 however desists from alleging that the transfer is fraudulent as it is with intent to defeat the creditors of the defendant 1 and 2, The defendant no. 3 raises no counter claim for declaring the transfer as null and void in terms of S. 53 of the Transfer of Property Act, 1882. The defendant no. 3 questions the validity of the transaction primarily on the ground that the sale deed is executed during the subsistence of the mortgage and as the property has not been released from mortgage till date.
11. A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan. A mortgage by deposit of title deeds is effected when a person delivers to a creditor documents of title to immovable property with intent to create a security thereon. The right of the mortgagee to redeem the mortgage is recognized under section 60 of the Transfer of Property Act, 1882.
CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 24 of 39At any time after the principal money has become due the mortgage has a right on payment or tender at a proper time and place of the mortgage money to require the mortgagee to deliver the mortgage deed and all documents relating to the mortgage property which are in the possession or power of the mortgagee. In terms of S. 61 of the Transfer of Property Act, 1882, a mortgagor who has executed two or more mortgages in favour of the same mortgagee shall be entitled to redeem any one such mortgage separately or any two or more of such mortgages together. Section 61 of the transfer and property Act is reproduced hereunder:
"61 Right to redeem separately or simultaneously. A mortgagee who has executed two or more mortgages in favour of the same mortgagee shall in the absence of a contact to the contrary. When the principal money of any two or more of the mortgages has become due be entitled to redeem any one such mortgage separately or any two or more of such mortgages together."
There is therefore merely for the reason that the defendant 1 and 2 sought to redeem the mortgage in respect of the property in question when another property was mortgaged against the housing loan separately, is in itself no ground to view the transaction inter se the plaintiff and the defendants 1 & 2 with suspicion. Immovable property may be sold free of encumbrances and even subject to encumbrances. In the case at hand the plaintiff was CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 25 of 39 disclosed of the encumbrance existing the sale deed in respect of the property in question is registered in favour of the plaintiff and subsequently the encumbrance is satisfied / dealt with, the mortgage money is paid. The housing loan was also a secured loan as an immovable property of the defendant no. 3 stood mortgaged with the bank. If the loanI the housing loan were an unsecured loan and the property mortgaged to secure another loan was redeemed when default in case of the unsecured loan occurs and the unsecured loan is outstanding against the mortgagees when the property is alienated, the inescapable conclusion would have been that the transaction in respect of the mortgaged property was a fraudulent transaction to defeat and defraud or delay the creditors. However where separate properties are mortgaged to secure separate loans/debts no such conclusion is ipso facto probable that the transaction in respect of one mortgaged property is to defeat the recovery of the other mortgage debt.
12. The defendant no. 3 alleges that besides the housing loan, the defendant 1 and 2 had also availed another loan from the New Friends Colony Branch of the defendant no. 3 Bank, this loan is referred to as loanII and the defendant no. 1 & 2 as a collateral had deposited title deeds of their property described as bearing no. 1616 A, First Floor, Kotla Mubarakpur, Near Bapu Park, New Delhi 110003. The defendant had defaulted in respect of loanII also the property of the defendant that was mortgaged to secure loanI the housing loan has been auctioned to satisfy the outstanding liability in CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 26 of 39 respect of loanII and it came to light that the defendant no. 1 and 2 had infact obtained two loans against the same property and in order to obtain the second loan had deposited title deeds of the property mortgaged against loanI by inserting 'A' in the description of the property thereby committing forgery and fabrication and securing loan No. II by playing fraud with the bank. So far as loanII is concerned the defendant no. 3 has shared no further details as to what was the balance outstanding when was the default committed, when was it declared as NPA, when was the property mortgaged to secure loan No. I auctioned to satisfy the balance outstanding in respect of loan no.II. All these dates were material in order to ascertain that as to whether the transaction in favour of the plaintiff was fraudulent in order to defeat the claim of the defendant no. 3 is respect of loan no.I & II. The defendant no. 3 files on the record the sale deed of the property, referred to as property no. II mortgaged to secure the repayment of loan no. II. The defendant no. 3 alleges that the same sale deed that pertains to the property mortgaged against the housing loan, referred to as property no. 1 has been manipulated by adding the letter 'A' to it as sale deed for alleged property no. II to secure loan no. II. From a bare perusal of the two sale deeds in respect of property no. I and property no. II it emerges that portion on First Floor (Back Side) measuring Apporx. 630 sq. feet of property no. 1616, situated in village Kotla Mubarakpur, now known as Bapu Park, Tehsil Hauz Khas (Mehrauli) New Delhi was purchased by the defendant no. I from one Sh. Bijender Sharma for a sale consideration of Rs. 27 lacs vide registered sale deed dated 29.12.2011 registered on 12.01.2012 CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 27 of 39 vide registration no. 21669 in book no. I, vol no. 11779 at pages 176 to 182, with the sub registrar V, New Delhi and vide sale deed registered on 20.07.2012, the defendant no. I has purchased from one Mukesh the entire first floor of property bearing no. 1616A, area measuring 62 sq. yards, part of khasra no. 282, situated at Bapu Park, Kotla Mubarakpur, New Delhi for a total sale consideration of Rs. 8,50,000/. The transaction as witnessed are distinct and disparate as would be suggested from the contents thereof. It is not that the sale deed pertaining to property bearing no. 1616, has been manipulated by adding only a letter 'A' to suggest the sale consideration as vendor is different the sale consideration as mentioned in the document are different. From the face of the document is would not appear as if one document has been manipulated/interpolated to denote two transactions. The defendant no. 2 stepped into the witness box as DWI. In the course of cross examination no explanation is sought from DWI as to whatever property bearing no. 1616 and 1616A are separate properties though it is the case of the defendant no. 3 that the property in questions has not been released of the mortgage as the defendant 1 and 2 failed to come forward to give any satisfactory explanation/clarification in respect of the two sale deeds and the two properties the subject matter thereof. When the defendant no. 2 was in the witness box, the defendant no. 3 had the best opportunity to seek and obtain all and every kind of clarification in respect of the two properties and the two sale deeds. No suggestion even is put to DWI, that the defendant no. 1 and 2 have fraudulently obtained two loans by forging and fabricating the sale deed pertaining to house no. 1616, CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 28 of 39 as 1616A. As per the case of the defendant no. 3 three loans are availed by the defendant no. 1 and 2. Against all the three loans three separate sale deeds are deposited. The statute vests the right in the defendants 1 and 2 to redeem the 3 separate mortgages separately or simultaneously. The defendant entered into an agreement with the plaintiff that the plaintiff shall pay the outstanding against one of loans and the property mortgaged shall be sold to him after the outstanding is cleared the amount paid shall be adjusted against the tota sale consideration. Even if there were loan amounts outstanding against the defendant as on the date that the transaction is entered into, acted upon and executed, that in itself is no circumstances to cast a cloud of doubt over the transaction inter se the plaintiff and defendants no. 1 & 2. The fraud, details of which find mention in the averments is played by defendants no. 1 and 2 as alleged with the defendant no. 3 bank. The defendant no. 3 does not further allege that there is any complicity of the plaintiff to the fraud played with the defendant no. 3 bank. It is not alleged against the plaintiff that the plaintiff even if not a party was aware of the fraud committed with the defendant no. 3 bank. The fraudulent sale deed is contended to have been created by the defendant no. 2 is collusion with defendant no. I. It is not the case set up by the defendant no. 3 in the written statement that the two sale deeds in respect of one property against which two loans were obtained by the defendants no. 1 and 2 were forged and fabricated in connivance with the plaintiff or were within the knowledge of the plaintiff. The fraud played upon by the plaintiff is that plaintiff has purchased a property that was mortgaged with the CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 29 of 39 bank. This mortgage stands redeemed.
In the course of crossexamination it is suggested to the plaintiff as the case of defendant no. 3 that the sale deeds are procured without deposit of any amounts and that no amount was paid by the plaintiff as sale consideration to defendant no. 1 and 2. The defence set up is formulated as follows : "Q. I put to you that you have not deposited any amount with defendant no. 3 and the documents at PW1/3, 4, & 5 were procured by you from defendant no. 1 and 2.
A. It is incorrect.
Q. I put it to you that no amount was ever paid by you as consideration to defendant no. 1 and 2 and therefore you have shown the mode of willing to produce your income tax returns.
A. It is incorrect Question objected to being irreverent and beyond pleadings.
Q. I suggest you that you have execute the sale deed in question despite having knowledge that the same were mortgaged with defendant no. 3, which shows that you in collusion with defendant no. 1 and 2 have executed sale deed to defeat the legal rights of defendant no. 3 ?
A. It is incorrect"
It is the penultimate suggestion that is the defence set up in the written statement. In the written statement the defendant no. 3 nowhere contends that the transaction in respect of the property in CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 30 of 39 question inter se the plaintiff and defendant 1 & 2 is without consideration and therefore the transaction is fraudulent and the plaintiff is not a bona fida purchase for consideration. When a party alleges fraud the rudimentary rule of pleadings is that the manner, mode in which the fraud is alleged to have been played has also to be detailed. Merely alleging that a transaction in fraudulent would be inconsequential. Where it is alleged that the transaction is fraudulent as no sale consideration has changed hands, it has to be asserted that the transaction is without consideration. It is only when such an allegation is made and is countered that the burden then shifts on the party so asserting that sale consideration has been paid to establish the payment of the sale consideration. Failing which the recital of payment of the sale consideration in the sale deed is evident enough in favour of the party relying upon such registered document as law clothes a registered instrument except a will with a presumption in its favour in respect of its due execution. The burden does not shift on a mere allegation of fraud generally unless the mode is also suggested. The transaction inter se the plaintiff and defendant no. 1 and 2 is stated to be fraudulent on the sole ground that the transaction is entered into in respect of a mortgaged property during the subsistence of the mortgage. It is not asserted that the transaction is fraudulent as no sale consideration exchanged hands. The plaintiff is not put to notice that besides relying upon the contents of the registered document the plaintiff is called upon also to prove the payment made for the purchase of the property. As no allegations of fact are raised, no issues are framed on the aspect of consideration changing hands CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 31 of 39 and no evidence is lead by the plaintiff establishing the transfer or the payment of sale consideration besides the contents of the registered document and oral depositions. In the facts and circumstance the plaintiff was not called upon to do so and therefore no adverse inference can be drawn for the failure of the plaintiff to produce its income tax returns and the questions put to the plaintiff on behalf of the defendant no. 3 touching upon the aspect of payment of sale consideration are beyond pleading are not relevant to the issues framed for adjudication.
13. In consequence of the discussion above, I arrive at that conclusion that as the statute allows a mortgagee to redeem two or more mortgages separately as well as simultaneously and property in question is transferred in favour of the plaintiff and the mortgage debt is redeemed the and as the only ground set up in the written statement by the defendant no. 3 is that the transaction is entered into in respect of a mortgaged property during the subsistence thereof and it is not alleged that the transaction is fraudulent and plaintiff is not a bona fide purchaser, and the connivance of the plaintiff or the knowledge of the plaintiff of the fraud alleged in respect of the loans other than the debt in question is not asserted against the plaintiff, the plaintiff on the strength of the registered sale deed in his favour and oral depositions including that of defendant no. 2 has successfully established that the plaintiff is a bona fide purchaser of the suit property for consideration and is entitled to the declaration in favour of the plaintiff and against the defendants that the plaintiff is the CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 32 of 39 absolute owner in possession of property described as Ground Floor of property bearing no. 729/6, Bhola Nagar, Kotla Mubarakpur, New Delhi.
14. It is also come to be established in the course of the discussion above that the defendants 1 and 2 had defaulted in the repayment of loanI the house loan availed by defendants 1 and 2 from the defendant no. 3 Bank. The defendant no. 3 contends that the general lien of the defendant no. 3 banker extends to the title deeds of the property in question lying deposited with the defendant no. 3 bank despite the mortgage in respect of the said properly in question having been redeemed and the defendant no. 3 bank has the right to enforce the liability of the defendant no. 1 & 2 as outstanding in respect of loan no. I, the housing loan, against the property in question and the defendant no. 3 is not liable to return the title document of the property is question despite the redemption of the mortgage in respect of the property in question. The general lien of the bankers is provided for under section 171 of the Indian Contract Act, 1872, which is reproduced hereunder:
"171. General lien of banker, factors, attorney and policy brokers bankers, factious, whafingus, attorney of a High Court and policy brokers may, in the absence of a contact to the contrary, retain, as a security for a general balance of account, any goods bailed to them but no other persons have a right to retain as a security for such balance, goods bailed to them, CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 33 of 39 unless then is an exposed contract to that effect.
In terms of the statute bankers are empowered to retain as security any goods bailed to them for a general balance of account. H'ble the High Court of Delhi in the judgment rendered in 'Raj Kumar Vs. Syndicate Bank delivered on 01.02.2016 has held that title documents in respect of immovable property are also 'goods' within the ambit of the general lien of bankers. The mortgage is redeemed on 29.04.2015 whereas the balance confirmation letter in respect of the housing loan is executed on 23.09.2014. There was general account balance due against the defendant 1 and 2 as on 29.04.2015 and the entitlement to exercise the general lien in respect of the title document of the property in question came into operation on 23.09.2014. The title documents in respect of the property in question would fall outside the preview if there was any contract to the contrary entered into between the parties, express or implied. At the time of the availing of the loan in question from the defendant no. 3. the defendants besides mortgage of the property in question had stood as guarantors executed personal guarantee bonds and undertaking. The express condition embodied under the guarantee agreement which is a non obstinate clause and mandates as follows:
"Notwithstanding anything hereinbefore contained my/our liability under the present shall extend all account of the, whether the same is the account or are the accounts of such customers solely, or the account or accounts CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 34 of 39 on which such customers is the sole proprietor or is the account or are the accounts on which such customers may become liable jointly in any manner whatever with any company or firm of person and whether such account or accounts stands or stand either in the name of the customer himself or in the name of any concern which he is the sole proprietor or in any other name and in the same shall not be affected by any change in the name of such accounts or any change in the constitution of the Bank, its successor or asings or by its absorption in or by its amalgamation with any other bank or banks"
This guarantee form tendered into evidence ExDW1/D3/A carries an express stipulation as follows:
"You shall have a lien or any or all of my/our accounts, current, saving bank, fixed deposit or any account of any nature whatsoever or any money or my/our security or securities with you towards the payment of any amount, including any installment or installment due or payable under this grantee and you shall be entitled to adjust the same case the principal debtor facts to pay the amount of installment or installment due and payable to you. An CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 35 of 39 intimation in this regard to me/us will be sufficient proof of any such adjustment made by you form my/our accounts or any of my/our accounts or any security. You will be entitled to make any adjustment or appropriation of any money (s) in any of my account with you, whether or not a demand has been made on principal debtor. My /our liability of this guarantee bond is with that of the customer. It will be no answer on our part that the demand should, in the first instance will have been made on the customer. Any such adjustment or adjustments made will not in any way affect our liability under this guarantee."
The plaintiff has stepped into the shoes of defendant no. 1 and 2 having purchased the property in question from the defendant no. 1. It is contended for the plaintiff that the title deeds in question were deposited to secure the repayment of the OD limit availed by Shree Jee Traders and the housing loan availed by defendants 1 and 2 has no connection with the guarantee agreement as the OD limit is availed by Sh. Bijender Sharma and not the defendants 1 and 2. The loan agreement in pursuance to which the title documents are deposited to create an equitable mortgage is availed in favour of M/s Shree Jee Traders the proprietorship concern of one Sh. Bijender Sharma. The defendant no. 3 bank has come into the rightful custody and possession of the title deeds of the property of the defendant no. 1 CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 36 of 39 who defaulted on another loan facility availed from the bank alongwith defendant no. 2. The title deeds deposited in pursuance to the OD limit are deposited upon an undertaking and authorization for applying the same against any outstanding of the 'customer', customer being Shree Jee Traders. There is therefore nothing to suggest a contract express or implied that the title deeds are deposited exclusively for the OD limit facility and the general lien of the bank shall not extend over it. If it could be retained a security for other than OD limit, it could very well be covered under the general lien of the bank. For the general lien to become operational it is immaterial that the title deeds "goods" were deposited in the capacity of a guarantor or as loanee. Once the defendant no. 3 bank has in its custody and possession the "goods" it may apply the same against any general balance outstanding. It is therefore concluded in favour of the defendant no. 3 that the defendant no. 3 on the date that the mortgage in respect of the property in question was redeemed had a general lien over the title deeds of the property in question to retain the same as security against the balance outstanding in respect of the housing loanI availed by defendant 1 and 2. The property in question is sold by defendants 1 and 2 to the plaintiff free of all encumbrance. However, upon the purchase of the property in question the plaintiff has verily stepped into shoes of the defendant no. 1 and 2 and the liabilities enforceable in respect of the property in question against the defendant 1 and 2 are liable to be executed and enforced even after the transfer of the property in question. The rights of the defendant no. 3 are not defeated by the transfer of the property in CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 37 of 39 question and are capable of being enforced even if the property has changed hands. The plaintiff vendee is free to avail any and every remedy in such eventuality against the defendants no. 1 the vendor, however, the defendant no. 3 is entitled to retain the title deeds of the property of defendants 1 and 2 in respect of the housing loan availed in exercise of the general lien as banker in terms of S. 171 of the contract Act, 1872. The plaintiff is therefore held not entitled to the decree of mandatory injunction against the defendant no. 3 and on similar consideration neither the relief of payment injunction as prayed for. The title deeds are admittedly not in the custody power and possession of the defendants no. 1 and 2. No such direction for return of the title deeds by way of a mandatory injunction is therefore capable of being passed against the defendants 1 and 2 in such facts and circumstance. The defendants 1 and 2 do not dispute the right, title or interest of the plaintiff over the property in question. Thus there is no cause of action against the defendants no. 1 and 2 for the decree of permanent injunction as prayed for. The issues under discussion are answered accordingly.
15. RELEIF In view of the discussion above the suit of the plaintiff for declaration and mandatory and permanent injunction is decreed partly in favour of the plaintiff and partly in favour of the defendant no. 3. Decree of declaration is passed in favour of the plaintiff and against the defendant, thereby declaring that the plaintiff is the owner of property bearing no. 729/6, Second Floor and Third Floor, CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 38 of 39 Admeasuring 40 sq. yards (Appx.) part of Khasra No. 282, Bhola Nagar, Kotla Mubarakpur, New Delhi. The plaintiff is held not entitled to a decree of mandatory injunction and permanent injunction as prayed for against the defendants. The suit of the plaintiff is disposed of in the above terms. Parties are left to their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Pronounced in the open Court (Neelofer Abida Perveen) st on the 01 of August 2018. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
The order contains 39 pages all checked and signed by me.
CS 9402/16 Sanjeev Kumar vs. Bhawna & Ors. Page 39 of 39