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Delhi District Court

Alok Rana vs . Pramod Pathak & Anr. on 19 February, 2020

                                              Alok Rana Vs. Pramod Pathak & Anr.
                                                                CS No. 17899/16


              IN THE COURT OF SHRI TARUN YOGESH
                    ADDL. DISTRICT JUDGE:03:
        SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI

                        Civil Suit No. 17899/16
                     CNR No. DLSW01­009979­2016

In the matter of :

Alok Rana
S/o Shri Hari Ram
R/o 1111, Palam Vihar Road,
Bijwasan Village, New Delhi­110061                             ... Plaintiff


                                 Versus

1)      Pramod Pathak
        S/o Shri Vishnu Dev Pathak
        R/o 290, VPO Pakadi Chhapar Patakhauli,
        Distt. Deoria, U.P.­274001

2)      Avnish Pathak
        S/o Shri Vishnu Dev Pathak
        R/o 42, G/F, Dr. Ambedkar Colony,
        Bijwasan, New Delhi.                                 ...Defendants

     Date of Institution of suit                    :       22.12.2016
     Date on which judgment was pronounced          :       19.02.2020

                            ­: JUDGMENT :­

1.

Plaintiff Shri Alok Rana has filed suit for foreclosure of mortgage, recovery of Rs. 2,00,000/­ along with interest and permanent injunction against defendants Shri Pramod Pathak and Shri Avnish Page 1 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

Pathak.

2. It is averred that defendants being known had approached plaintiff and his associate Shri Suresh seeking financial assistance which was acceded and Rs.12,00,000/­ was given to defendants which was secured by executing mortgage deed dated 22.06.2015 in favour of plaintiff and his associate by creating charge over property/ plot measuring 40 sq. yards and constructed portion thereof forming part of khasra No. 32/24, Saini Mohalla, Village Bijwasan Extension, New Delhi.

3. It was agreed between parties that loan would be repaid by 31.12.2015 failing which plaintiff would become the owner of property and GPA, Agreement to Sell etc. was also executed by defendants in favour of plaintiff for confirming mortgage by conditional sale.

4. It is also averred that plaintiff has paid Rs.6,00,000/­ contributed by Shri Suresh to the co­mortgagee and all rights, claim etc. under the mortgage deed has been transferred to plaintiff who has become the sole mortgagee.

5. Defendants are stated to have approached and requested plaintiff for further financial assistance of Rs. 2,00,000/­ on 04.10.2016 by assuring to return the entire amount of Rs.14,00,000/­ to plaintiff within a short span of time and handed over possession of suit property to the plaintiff by assuring to execute requisite title documents in his favour in the event of failure to repay the entire amount of Rs. 14,00,000/­.

6. It is averred that defendants despite their promise and assurance did not repay Rs.12,00,000/­ secured by mortgaged deed and subsequent sum of Rs 2,00,000/­ despite repeated requests by plaintiff Page 2 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

and tried to illegally and unlawfully encroach upon the property along with unidentified gunda elements which was avoided with the aid and intervention of the tenant and other local residents.

7. Defendants continued extending threats of dire consequences to life and liberty of the plaintiff who was forced to lodge police complaint dated 15.12.2016 at PS Kapashera and thereafter filed suit praying for :

a) decree of foreclosure of mortgaged deed dated 22.06.2015 by directing defendants to execute requisite title documents of suit property in his favour;

b) decree for recovery of Rs.2,00,000/­ alongwith pendente­lite and future interest @ 12 % per annum and

c) decree of injunction restraining defendants, their agents, attorneys, successor in interest, etc from interfering with the lawful and peaceful possession of plaintiff over suit property and any other further relief that the court may deem it fit and proper.

8. Summons for settlement of issues was directed to be issued to defendants and defendant No.1 appeared in court voluntarily without service of summons and was directed to file written statement within four weeks with advance copy to plaintiff vide order dated 22.05.2017.

9. Defendants did not file their written statement and matter was referred to Mediation Centre for exploring settlement on 31.07.2017. Settlement could not be effected between parties at Mediation Centre, Page 3 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

Dwarka and defendants' right to file written statement was closed on 18.12.2017.

10. Application under Order VIII Rule 1 read with Section 5 of Limitation Act was thereafter filed along with joint written statement of defendants on 30.01.2018 followed by application under Section 148 read with Section 151 CPC seeking enlargement of time for taking written statement on record which was dismissed on 19.12.2018.

11. Plaintiff/PW­1 Shri Alok Rana has tendered his affidavit Ex.PW­1/A and additional affidavit Ex.PW­1/A1 in evidence and relied upon following documents:

(1) Photocopy of mortgage deed dated 22.06.2015 Ex.PW­1/1 (OSR);

(2) Photocopy of Bank Passbook dated 04.10.2016 Mark A; (3) Photocopy of NCR dated 05.12.2016 Mark B; (4) Photocopy of complaints dated 13.12.2016 and 15.12.2016 Mark C & D and (5) Photocopy of receipt dated 03.01.2017 Ex.PW­1/6 (OSR).

12. His cross­examination was recorded on 19.12.2018, 28.03.2019 and 04.06.2019 and plaintiff's evidence was closed on the basis of his statement.

13. Matter was thereafter adjourned for final arguments.

14. Advocate Shri Vinay Tomar and Shri K.B. Shankar for defendants have addressed their arguments and filed written submissions seeking dismissal of suit for foreclosure with additional prayer for order of eviction; direction to plaintiff to hand over peaceful possession of property Page 4 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

along with original documents and order for compensation/compensatory costs in favour of defendants against the plaintiff.

15. Advocate Shri S. Chakarvarti for plaintiff on the other hand has filed written submissions in support of plaintiff's case by contending that non­filing of written statement has to be construed as admission of contents of the plaint and nothing substantial could be extracted during cross­examination of plaintiff.

16. I have considered their submissions and carefully perused plaint; examination­in­chief & cross­examination of plaintiff (PW­1) and documents referred during his evidence.

17. Since plaintiff's suit for foreclosure has been filed on the basis of mortgage deed dated 22.06.2015 so relevant covenants of the mortgaged deed Ex.PW­1/1(OSR) entered between defendants (i) Shri Pramod Pathak & (ii) Shri Avnish Pathak (referred as first party/ mortgagor) and plaintiff Shri Alok Rana (referred as second party/ mortgagee) w.r.t plot measuring 40 sq. yards (15x23.8) forming part of khasra No. 32/24, Saini Mohalla situated in revenue estate of village Bijwasan Extension, New Delhi are extracted herein below:

"1. That the mortgagor have to pay the sum of Rs.12,00,000/­ within / up to 31.12.2015 to the mortgagee. And if the first party/mortgagor not paid the said amount on time to the second party. The second party will become owner of abovesaid property. The first party will pay a sum of Rs.5,00,000/­ up to 15.10.2015 to the second party.

Page 5 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

3. That the mortgagor hereby assure the mortgagee that the said property is free from all sorts of encumbrance such as sale, mortgage, gift, agreement to sell, lien, decree, notification, attachment, alliteration legal flaws notice, charge and family dispute etc. if it is provide or in whole or part of the said property goes out of the said sale deed then the mortgagor will be liable to indemnity all the losses costs, and damages and incurred by the second party unto the extent of three times all the respect.

4. That in case the mortgagor backs out to sell the said property to the mortgagee within the specification period then the mortgagee shall have full right to get the Regd. Sale Deed/documents through the courts of law under specified performance act at the costs and expenses of the mortgagor.

5. That I/We will be fully liable to cancel the abovesaid GPA and other document at the time of return the whole amount to second party.

6. That both parties will be bound to all the term and condition of this Mortgage Deed."

18. It is the case of plaintiff that mortgage deed dated 22.06.2015 was executed by defendants for securing loan of Rs.12,00,000/­ by creating charge over suit property and GPA, agreement to sell etc. was Page 6 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

also executed by defendants in his favour for confirming mortgage by conditional sale.

19. It is also averred that defendants had approached plaintiff on 04.10.2016 requesting further financial assistance to the tune of Rs.2,00,000/­ upon false and frivolous representation to return the entire amount of Rs.14,00,000/­ within a short span of time and handed over possession of suit property to the plaintiff in order to show their bonafides by assuring to execute requisite title deed in favour of plaintiff in the event of failure to repay the entire amount of Rs. 14,00,000/­.

20. Since plaintiff is asserting his right and interest in the suit property on the basis of aforesaid mortgage deed so Section 59 of the Transfer of the Property Act, 1882 read with Section 17(1)(c) of the Registration Act, 1908 will get attracted as mortgage deed dated 22.06.2015 for securing loan of Rs. 12,00,000/­ could be effected only by a registered instrument signed by the mortgagor and attested by atleast two witnesses which mandatory provision has not been complied and mortgage deed referred as Ex.PW­1/1 is therefore inadmissible in evidence as held in para 17 of the judgment titled Meena Surana Vs. Champalal passed by Hon'ble High Court of Rajasthan at Jodhpur MANU/RH/1277/2015 cited by defendant's counsel in his written submissions.

"17. ..... There remains no quarrel that mortgage other than mortgage by deposit of title­deeds can be effected only by a registered instrument as mandated by Section 59 of the Transfer of Property Act, 1882 Page 7 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

(for short, 'Act of 1882') Mortgage by deposit of title­ deeds in terms of Section 58(f) of the Act of 1882 surely acknowledges the receipt and transfer of interest and, therefore, one may contend that its registration is compulsory. However, when the debtor deposits with the creditor title­deeds of the property for the purpose of security, it becomes mortgage in terms of Section 58 (f) of the Act of 1882 and no registered instrument is required under Section 59 thereof as in classes of mortgage. The alleged mortgage, in the instant case, was neither properly stamped nor registered and it was also not a mortgage from any stretch of imagination falling within the ambit of Section 58(f)of the Act of 1882. In these situations under Section 17(1)(c) of the Registration Act, it was a compulsorily registrable instrument and the learned Courts below have rightly turned down the plea of the appellant to construe the same as it is a document to create mortgage between both the parties."

21. It is also relevant to note that plaintiff during his cross­ examination has admitted that defendant No. 1 has paid Rs. 13,00,000/­ in the account of plaintiff and his mother till September 2016 but insisted that money was not paid for redeeming the mortgage by claiming about separate money transaction between parties w.e.f. January 2016. He, Page 8 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

nonetheless, has admitted that no written transaction other than mortgage deed was executed between parties.

22. Since mortgage deed Ex.PW­1/1 being unregistered is inadmissible in evidence and plaintiff having averred that defendants had handed over possession of property at the time of further financial assistance of Rs.2,00,000/­ advanced in October 2016 has admitted payment of Rs.13,00,000/­ by defendant No.1 till September 2016 so plaintiff cannot continue to occupy the property and is required to vacate and handover physical possession of suit property to defendants.

23. Since defendants' right to file written statement was closed vide order dated 18.12.2017 and application under Section 148 read with Section 151 CPC for enlargement of time for taking their written statement on record was dismissed on 19.12.2018 so court is bound to exercise inherent powers under Section 151 CPC for rendering real and substantial justice.

24. Statement of plaintiff Shri Alok Rana has been recorded under Section 165 of Indian Evidence Act wherein he has claimed that he is not aware of other cases against defendant pending at Jhajjar Haryana; Almora, Uttrakhand and Dwarka Courts, South West District, Delhi besides stating that suit property has been let out and he has been receiving monthly rent of Rs.2,500/­ from three tenants inducted in the property since October 2016.

25. Since plaintiff's averment that defendants had voluntarily handed over physical possession of the property in October 2016 has been disputed in the written submissions wherein defendants have Page 9 /10 DOD: 19.02.2020 Alok Rana Vs. Pramod Pathak & Anr.

mentioned about criminal case under Section 200 Cr.P.C. filed along with application 156(3) Cr.P.C. which is pending in the court of Ld. M.M., Dwarka Courts, Delhi, so plaintiff is directed to hand over vacant physical possession of suit property to defendants within a month and compensate them for wrongful loss by paying compensation @ Rs.2,500/­ per month (as stated during examination under Section 165 of Indian Evidence Act) for the period from October 2016 till the date of handing over vacant physical possession of suit property to defendants.

26. Plaintiff's suit for foreclosure of mortgage, recovery of Rs.2,00,000/­ along with interest and permanent injunction is therefore dismissed and plaintiff is directed to handover vacant physical possession of suit property to defendants within a month and also compensate them for wrongful loss by paying compensation @ Rs.2,500/­ per month for the period from October 2016 till the date of handing over vacant physical possession of the property to defendants.

27. Decree sheet be prepared accordingly.

28. File be consigned to Record Room. Digitally signed TARUN by TARUN YOGESH YOGESH Date: 2020.02.22 16:07:03 +0530 Announced in the open Court (Tarun Yogesh) On 19.02.2020 ADJ­03/South West Dwarka /New Delhi Page 10 /10 DOD: 19.02.2020