Delhi District Court
M/S Rajasthan Industrial And vs M/S Polycast Maulders Pvt. Ltd on 29 November, 2012
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 606/07
Unique Case ID No. 02402C04350282006
M/s Rajasthan Industrial and
Investment Corporation Ltd.
Udyog Bhawan, Tilak Marg, Jaipur302005.
........... Plaintiff.
VERSUS
1. M/s Polycast Maulders Pvt. Ltd.
B6/56, Safdarjung Enclave, New Delhi29.
2. Shri Kalyan Tiwari
s/o Late Shri R.N. Tiwari
167D, Mayur Vihar PhaseI,
New Delhi.
3. Shri Surjeet Kumar Wadhwa
s/o Late Shri M.R. Wadhwa
78D, Pocket IV, Mayur Vihar,
Phase I, New Delhi.
4. Dy. Director (LAB) Housing,
Delhi Development Authority,
D block, 3rd floor, Vikas Sadan, INA,
New Delhi110023.
......... Defendants.
Date of institution of the suit : 07.08.2006
Date on which order was reserved: 24.11.2012
Date of decision : 29.11.2012
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is a statutory body created under the provisions of the Companies Act 1956. It has been further stated that the present suit is being filed by the officer incharge namely Shri Kishore Gupta, DGM who has been authorized for the said purpose by the plaintiff. It has been further stated that defendant no.1 is a company registered under the Companies Act having its registered office at B6/56, Safdarjung Enclave, New Delhi. It has been further stated that defendant no.2 is one of the promoters / directors of the defendant no.1 and is a resident of 167D, Mayur Vihar, Phase I, New Delhi. It has been further stated that defendant no.3 is resident of flat no. 78-B, Pocket IV, Mayur Vihar, New Delhi and defendant no.4 is the DDA. It has been further stated that defendant no.1 approached the plaintiff through defendant no.2 for sanction of financial assistance. It has been further stated that the plaintiff sanctioned the financial assistance of Rs.69.93 lakhs. It has been further stated that defendant no.2 executed the documents i.e. the Copy of the Memorandum and for the creation of equitable mortgage, copy of letter confirming deposit of title deeds by Shri Kalyan Tiwari, copy of Undertaking, Affidavit, Declaration and Power of Attorney all dated 17.03.1993 as security. It has been further stated that thus, the defendant no.2 created an equitable mortgage of his leasehold property bearing flat no. 78 B pocket IV, Mayur Vihar, New Delhi by delivering the original documents of the said leasehold property to the plaintiff. It has been further stated that the DDA i.e. defendant no.4 herein being the lessor of the said leasehold property under mortgage issued a No Objection Certificate vide its letter dated 16.02.1993. It has been further stated that the defendant no.4 issued another letter dated 26.02.1993, whereby it undertook and assured the plaintiff that the original documents pertaining to the said property shall be sent directly to the plaintiff upon the conversion of the property from leasehold to freehold. It has been further stated that the plaintiff confirmed the above stated two letters issued by defendant no.4 vide its letter dated 10.03.1993 which was duly received by defendant no.4 as is reflected in the diary in the receipt register at serial no. 2054 on 11.03.93. It has been further stated that defendant no.2 also made a request to the defendant no.4 for sending the lease deed on execution directly to the plaintiff which letter was also duly received by defendant no.4 as is reflected from the receipt register at serial no. 2055 on 11.03.1993. It has been further stated that the abovesaid two letters dated 16.02.1993 and 26.02.1993 of the DDA were got verified by the plaintiff from the records of defendant no.4. It has been further stated that on the basis of the aforementioned letters and assurance, the plaintiff proceeded to advance the credit facility of Rs.69.93 lakhs in favour of defendant no.1 on 20.11.1995. It has been further stated that the charge / mortgage was registered with the office of the Registrar of Companies (Delhi and Haryana) and a certificate dated 11.06.1992 was also issued in this regard. It has been further stated that since defendant no.1 failed to adhere to the fiscal discipline imposed upon it by the plaintiff, the plaintiff vide order dated 13.08.2002 and 27.08.2002 directed the attachment of the mortgaged property. It has been further stated that when the officers of the plaintiff visited the mortgaged property during the month of August 2004, to their utter shock and surprise, the officials of the plaintiff found the defendant no.3 to be in possession of the mortgaged property. It has been further stated that on further enquiry, the plaintiff came to know about the fraud and misconduct played by defendant no.2 at the back of the plaintiff. It has been further stated that defendant no.2 on account of some ill motive, transferred his rights in the said property to defendant no.3 by way of executing a Power of Attorney, a Will and Agreement to Sell. It has been further stated that subsequent to the execution of the said documents in favour of defendant no.3, defendant no.2 and 3 even approached the defendant no.4 and succeeded in procurement of a Conveyance Deed in favour of defendant no.3 in respect of the aforesaid mortgaged property. It has been alleged that defendants no.2 and 3 were well aware of the fact that the said property was mortgaged to the plaintiff but in order to frustrate the legal rights of the plaintiff, they entered into this deal with malafide intention and ulterior motives to cause loss to the plaintiff. It has been further stated that defendant no.3 has no right in the mortgaged property against the plaintiff and is liable to be evicted from the property in question. It has been further stated that the plaintiff received a legal notice from defendant no.3 claiming therein that defendant no.3 was the purchaser of the said mortgaged property and that the plaintiff should refrain from initiating any attachment of the said property. It has been further stated that the said legal notice sent by defendant no.3 was duly replied by the plaintiff stating therein that the property in question stood mortgaged in favour of the plaintiff and the documents executed by defendant no. 2 in favour of defendant no.3 were not having any legal sanctity. It has been further stated that in response to the reply on behalf of the plaintiff to the legal notice to the defendant no.3, defendant no.3 stated that he intend to persist upon his illegal possession of the said mortgage property. It has been further stated that the plaintiff vide letter dated 01.06.05 requested the DDA to cancel the Conveyance deed executed in favour of defendant no.3 and to honour the mortgage in favour of the plaintiff but the DDA responded with the letter dated 28.10.05 supported by the letter dated 09.12.05 and informed the plaintiff that the letters dated 26.02.03 and 16.10.03 alleged to have been written by defendant no.4 and submitted by Shri Kalyan Tiwari with the plaintiff seemed to be fake and hence the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of declaration declaring the conveyance deed executed by defendant no.4 in favour of defendant no.3 to be null, void and nonest. The plaintiff has further prayed for a decree of mandatory injunction directing defendant no.4 to cancel the conversion qua the mortgage of property in favour of defendant no.3 and further directing no.4 to execute the conveyance deed in favour of the plaintiff. In the alternate, to the relief of mandatory injunction, the plaintiff has prayed for the alternate relief directing the defendant no.4 that in case defendant no.2 fails to come forth for getting the said mortgaged property converted from leasehold to freehold, the said property be reverted back to its status of leasehold property and thereafter the plaintiff corporation be allowed to proceed to realize its dues by sale of the said mortgaged property on "as is where is" basis.
3. Defendants no.1 and 2 were proceeded exparte as is reflected from the order sheet dated 27.09.2007.
4. Written statement has been filed on record by the defendant no.3 stating therein that the present suit for declaration is not maintainable without seeking any consequential relief; the present suit is hit by the provisions of Recovery of Debts Due To Banks and Financial Institution Act 1993; the present suit is not maintainable because the plaintiff is seeking the recovery of loan amount in the garb of the present suit for declaration and mandatory injunction; the plaintiff has not paid the appropriate court fees and as such, the present suit is not maintainable. It has been further stated that at the time of granting the alleged loan, i.e. in the year 1993, the plaintiff had valued the suit property for a value of Rs. 7 lakhs but the present suit has been valued merely for an amount of Rs.1,31,000/. It has been further stated that the present suit is without any cause of action because the defendant is a bonafide purchaser of the suit property who has purchased the suit property after getting the clearance from defendant no.4. It has been further stated that defendant no.4 never issued any NOC in favour of the plaintiff for creation of equitable mortgage of the suit property. It has been further stated that the alleged letters dated 16.02.93 and 26.02.93 allegedly issued by defendant no.4 are false and fabricated. It has been further stated that the present suit is also barred by the law of limitation because the orders for attachment of the suit property were issued vide letters dated 13.08.2002 and 27.08.2002 but the present suit has been filed in the year 2006 i.e. after a lapse of five years. It has been further stated that the value of the suit property was assessed at Rs.7 lakhs only whereas, the loan was granted to the tune of Rs.69.93 lakhs which itself shows that there was some mischief in the transaction. It has been further stated that the plaintiff is not in possession of the original lease deed and the said loan was sanctioned by the plaintiff without depositing the original lease deed though, the plaintiff was duty bound to do so. It has been further stated that the loan was sanctioned to defendant no.1 by bypassing all requisite and legal methods and infact the suit property was never legally mortgaged at all. It has been further stated that defendant no.3 has the sole and exclusive rights over the suit property. The defendant no.3 has admitted that he himself alongwith defendant no.2 approached defendant no.4 and got the conveyance deed qua the suit property executed. Defendant no.3 has denied the allegation that he was aware about the mortgaging of the suit property with the plaintiff. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
5. Defendant no.4 i.e. the DDA has also filed on record the written statement stating therein that the present suit is not maintainable against defendant no.4 because the plaintiff is not having any relation with defendant no.4; the present suit is without any cause of action against defendant no.4. It has been further stated that the suit property i.e. flat no. 78 - D, Pocket IV, Mayur Vihar, Phase1, Delhi was allotted to Smt. Shanti Tiwari vide demand cum allotment letter dated 26.09.1985 on hire purchase basis and subsequently the name of defendant no.2 was substituted vide letter dated 03.06.86. It has been further stated that though, the main file of the suit property is not traceable but on the basis of the documents provided and the information received, it can be said that the said flat was converted from leasehold to freehold vide conversion letter dated 08.11.2002 allowed on 20.05.03 in the name of Shri Surjeet Kr. Wadhwa i.e. defendant no.3. It has been further stated that no mortgage permission was ever given by defendant no.4 as alleged including the letter dated 16.02.93 and 26.02.93 which seemed to be fake. It has been further stated that for the first time, by the letter of the plaintiff dated 01.06.2005, the defendant no.4 came to know the said mortgage of the suit property in question and immediately thereafter, the said letter was replied vide reply dated 28.10.2005. It has been further stated that DDA has already issued the show cause notice to the defendant no.3 regarding the suppression of the facts of the mortgaging of the suit property with the plaintiff and final show cause notice vide letter dated 20.09.2006 has also been issued but no reply has been received so far. It has been further stated that the present suit is also bad for want of notice u/s 53 B of the DD Act. The DDA has denied the receipt of the letters dated 10.03.1993, It has been further stated that by the DDA that the fact with regard to the mortgage of the suit property was concealed and as such, the conveyance deed was issued on the basis of GPA, Agreement to Sell and other documents submitted by defendant no.2 and 3. DDA has further stated that no permission or assurance or NOC was ever given to the plaintiff towards said mortgage by the DDA. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
6. Separate replications to the written statement of defendant no.3 and 4 have been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statements.
7. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 30.11.2007.
1) Whether the plaintiff is entitled to a decree of declaration as prayed for ? OPP
2) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for ?
OPP
3) Whether the suit of the plaintiff is not maintainable in the present form ? OPD
4) Whether the suit of the plaintiff is liable to be dismissed as barred under Law of Limitation ? OPD
5) Whether suit of the plaintiff is liable to be dismissed for non payment of proper court fees ? OPD
6) Whether this court has no jurisdiction to try the present suit and the same is barred under section 1, 17 and 18 of the Recovery of Debts Due to Banks and Financial institutions Act 1993 ? OPD
7) Relief.
8. In order to prove their respective cases, the plaintiff has examined Shri Sudipto Sen, its Manager (Law) as PW1, Shri Ashok Mathur, its Deputy GM (Documentation) as PW2, Shri Tersem, the Asstt. Director from L & B Housing department, DDA, Delhi as PW4. The defendant no.3 has examined himself as D3W1 and defendant no.4 has examined Shri Krishan Malik, its Asstt. Director as DW1/D4. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
9. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties. The plaintiff and the defendant no.3, defendant no.4 as well have also filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties. EVIDENCE The plaintiff has examined Shri Sudipto Sen, its Manager (Law) as PW1 and in his evidence by way of affidavit he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the office order dated 27.04.2005 appointing Shri Kishore Gupta as Officer In charge and Shri Sudipto Sen as Additional Officer In charge to file the civil suit executed by Shri Ashok Mathur its Deputy GM as Ex. PW1/1, copy of the memorandum of entry creation of equitable mortgage as Ex. PW1/2, the letter to the MD of the plaintiff by Shri Kalyan Tiwari as Ex. PW1/3, the undertaking dated 17.03.1993 by Shri Kalyan Tiwari as Ex. PW1/4, the Affidavit of Shri Kalyan Tiwari dated 17.03.1993 as Ex. PW1/5, Declaration by Shri Kalyan Tiwari as Ex. PW1/6, the Power of Attorney dated 17.03.1993 as Ex. PW1/7, the letter by the Deputy Director DDA dated 16.02.1993 to Shri Kalyan Tiwari as Ex. PW1/8/X1, copy of the letter dated 16.02.1993 by Deputy Director DDA to Shri Kalyan Tiwari as Ex. PW1/8/X2, the letter dated 26.02.1993 by deputy director DDA to Shri Kalyan Tiwari as Ex. PW1/9/Y, the letter by Deputy Director (LA) to Shri Kalyan Tiwari as Ex. PW1/9/Y1, carbon copy of the letter dated 10.03.1993 to the DD (LA) by Shri Ashok Mathur, Deputy Manager of the plaintiff as Ex. PW1/10, carbon copy of the letter dated 10.03.1993 as Ex. PW1/10A, certificate of registration of the mortgage u/s 132 of the Companies Act as Ex. PW1/11, copy of the office order 27.08.2002 as Ex. PW1/12, copy of the notice dated 14.09.2004 as Ex. PW1/13, copy of the letter dated 20.12.2004 to the Advocate Ms. Beena Gupta as Ex. PW1/14, copy of the letter dated 26.04.2005 as Ex. PW1/15, copy of the letter dated 01.06.2005 as Ex. PW1/16, copy of the letter dated 30.11.2005 as Ex. PW1/17, copy of the letter dated 09.12.2005 as mark K, copy of the letter of the DDA dated 28.10.2005 as mark L. In the cross examination PW1 has stated that he has not given the authorization to Mr. Kishore Gupta for filing of the present suit. PW1 has further stated that Mr. Ashok Mathur is authorized by Board Resolution on behalf of RIICO to authorize any person to file the present suit on behalf of RIICO. PW1 has further stated that no such Board Resolution has been placed on record. PW1 has further stated that Ex. PW1/1 does not bear any seal of RIICO nor does it mention about any board resolution. By way of volt. PW1 has stated that it is on the letterhead of RIICO. Ex. PW1/1 does not bear the monogram/logo of RIICO. PW1 has further stated that he has dealt with the file in the present suit whenever there was legal requirement or his seniors asked him to do that. PW1 has further stated that no documents with regard to the mortgage of the property in suit or other documents related to the mortgage were executed in his presence by defendant no.1. PW1 has further stated that he has dealt with the file relating to flat no. 78 B pocket IV, Mayur Vihar, New Delhi but he does not remember the date, month and year. PW1 has admitted it to be correct that Ex. PW1/2 to Ex. PW1/7 were not executed in his presence. PW1 has further stated that these documents were executed before Shri Ashok Mathur. PW1 has further stated that Ex. PW1/A is the original document of DDA but does not bear the the seal of any officer neither does it show the name of any officer. PW1 has further stated that there is no acceptance of Ex. PW1/8 on the said documents. By way of volunteer, PW1 has stated that it is on the covering letter. PW1 has admitted it to be correct that no covering letter has been exhibited by him. PW1 has further admitted it to be correct that there are two documents filed as Ex. PW1/8 and there is no seal of any person / officer on Ex. PW1/8/X1 which is purportedly original letter. Whereas, on Ex. PW1/8/X2 there is no name of the alleged designation/stamp. By way of volunteer, PW1 has stated that the name is written in the handwriting on Ex. PW1/8/X2 at point A. PW1 has admitted it to be correct that the name of R. Tyagi is not written in stamp. PW1 has further stated that he is not aware that the person who has issued the said letter, is stated to be of the rank of Deputy Director (LA) but the signatures alongside the seal with the name of Mr. R. Tyagi refers to a person who is a Section Incharge Housing DDA. PW1 has denied the suggestion that there is no post of Section Incharge Housing DDA with the DDA. PW1 has denied the suggestion that the documents Ex. PW1/8/X1 or Ex. PW1/8/X2 were never issued by the DDA in favour of defendant no.2 or in favour of the plaintiff. PW1 has admitted it to be correct that the Ex. PW1/9/Y1 does not bear any verification stamp of any person nor does it bear the stamp of the DDA. PW1 has admitted it to be correct that the photocopy of Ex. PW1/9/Y2 has the name of some person R. Tyagi at point A who has stated to have verified the said document. PW1 has further stated that there is a stamp stating PRAPTI LIPIK AWAS VIBHAG underneath the name of the author of the said letter Ex. PW1/9/Y2 though, there is no stamp under the name of Mr. R. Tyagi. PW1 has admitted it to be correct that Ex. PW1/10 was not written in his presence nor he is the author of the said letter. PW1 has further stated that Ex. PW1/10 bears the seal of the DDA alongwith diary no. encircled at point A. PW1 has further stated that they had not sent any original document pertaining to the suit property to the DDA and hence the question of receiving back the documents from the DDA did not arise. PW1 has further stated that Ex. PW1/17, the documents mark L and K are the documents which were sent by the DDA to the plaintiff in between the period 1993 to 2005 regarding the suit property. PW1 has further stated that he does not remember verbally as to when the plaintiff came to know for the first time regarding the transfer of the suit property in favour of defendant no.3. PW1 after seeing the court file, has further told that the suit property was in possession of defendant no.3 in August 2004 and the plaintiff came to know for the first time regarding the transfer of the property in favour of defendant no.3 on 15.10.2004. By way of volunteer, PW1 has stated that because the plaintiff had received the documents on that day. PW1 after seeing the court file has answered that the plaintiff did not come to know in the year 2002 about the transfer of the suit property in favour of defendant no.3 at the time when Ex. PW1/12 was issued. PW1 has further stated that the plaintiff received the copy of the conveyance deed on 15.10.2004. PW1 has further stated that he cannot tell as to whether the fees for registration for the equitable mortgage with respect to the suit property was deposited by the plaintiff or not. PW1 has further stated that to the best of his knowledge, the abovesaid equitable mortgage was not got registered by the plaintiff. PW1 has further stated that no information was given by the plaintiff to any of the Sub Registrar, New Delhi or anywhere in the country with regard to the mortgage of the suit property with the plaintiff. PW1 has further stated that there is no document on record to show that the plaintiff had got published any publication in any English or Hindi newspaper anywhere in the country to the effect that the suit property was lying mortgaged with the plaintiff. PW1 has further stated that the plaintiff had intimated to the Principal Lesser about the mortgage of the suit property with the plaintiff in writing. PW1 has further stated that Ex. PW1/10 and Ex. PW1/16 are the two documents showing the said information in writing. PW1 has further stated that DDA has acknowledged the receipt of the letter Ex. PW1/16 by the document Ex. PW1/17. PW1 has further stated that the Ex. PW1/16 does not bear the signatures of anyone. By way of volunteer, PW1 has stated that the same is merely an office copy of and hence the same does not bear any signatures. PW1 has admitted it to be correct that Ex. PW1/16 is not on the letterhead of the plaintiff. By way of volunteer, PW1 has stated that the same is an office copy. PW1 has admitted it to be correct that Ex. PW1/16 was not sent by him personally and the same was not signed by him. PW1 has further stated that Ex. PW1/16 was signed by Mr. A.K. Gupta, the then GM of the plaintiff. PW1 has admitted it to be correct that said letter Ex. PW1/16 was neither signed nor dispatched in his presence. PW1 has denied the suggestion that Ex. PW1/17 does not contain the acknowledgment of the letter Ex. PW1/16. PW1 has further stated that Ex. PW1/2 to Ex. PW1/7 are the documents collectively related to the entry of the mortgage and the title documents as well. PW1 has further stated that he has not placed on record any dispatch entry of the letter Ex. PW1/16. PW1 has admitted it to be correct that the plaintiff has not placed on record any proceedings or orders either of the DRT or of any competent court of law showing the money due to defendant no.1 and defendant no. 2.
The plaintiff has further examined Shri Ashok Mathur, its DGM (documentation) as PW2 and in his evidence by way of affidavit he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint.
It is worthwhile to mention here that the affidavit of PW2 and PW1 are more or less exactly on the same lines and in the cross examination as well, PW2 has deposed almost on the same lines as has been done by PW1. In fact the entire cross examination of PW2 has been done in the same manner as is the cross of PW1, the question asked to PW2 are verbatim the same (as asked to PW1) and the answers given by PW2 are almost the same. As such, the cross of PW2 which is exactly similar to PW1 is not being repeated here but the cross examination of PW2 which is not similar to the cross examination of PW1 and which is relevant for deciding the controversy involved in the present suit is hereby stated in brief. However, PW2 in the cross has stated that he has been associated with the plaintiff since 1979. PW2 has further stated that he has given an authorization letter to Mr. Kishore Gupta for filing this suit pursuant to the Board Resolution. PW2 has further stated that no such Board Resolution has been placed on record. PW2 has further stated that he dealt with the file of this case when financial assistance was granted to the defendant no.1 and the mortgage of the suit property was created. PW2 has further stated that the documents with regard to the mortgage of the property in suit or other documents related to mortgage were executed in his presence by defendant no.1. PW2 has admitted it to be correct that even on Ex. PW1/2 underneath his name, there is no official seal. PW2 has denied the suggestion that to memorandum of entry of creation of equitable mortgage was created by defendants no.1 and 2 with regard to the suit property at any point of time and this document has been fabricated only with a view to file the present suit. By way of volunteer, PW2 has stated that the documents are in official format and are in order. PW2 has admitted it to be correct that his signatures are not appended on Ex. PW1/3 and the said letter has not been addressed to him. PW2 has admitted it to be correct that he has never worked with Kalyan Tiwari nor he has seen him writing or singing documents on day to day basis. PW2 has admitted it to be correct that Ex. PW1/3 does not bear the seal of RIICO or the acceptance of the said document by the plaintiff. PW2 has further stated that Ex. PW1/3 has not been executed by him and the same has also not been received by him. PW2 has further admitted it to be correct that Ex. PW1/4, Ex. PW1/5, Ex. PW1/6 and Ex. PW1/7 do not bear the stamp of RIICO anywhere of having received the document nor of any officer of RIICO nor of any person before whom the said documents had been submitted. PW2 has further stated that Ex PW1/10 is merely an office copy and the same bears his initials. PW2 has denied the suggestion that Ex. PW1/2 to Ex. PW1/7 are not the title documents of the suit property. PW2 has denied the suggestion that the plaintiff had come to know about the transfer of the suit property in February 2000 itself and subsequently, even in August 2002, but intentionally and deliberately with a view to threaten, coerce the defendant no.3, filed the present suit in the year 2006. PW2 has denied the suggestion that the plaintiff had settled with defendant no.1 and 2 and had received all its dues, if any, from defendants no.1 and 2 but with a view to get undue enrichment, the plaintiff has filed the present suit as a blackmail tactics knowing fully well that defendant no.3 is an owner in his own right without notice of any transaction of defendants no.1 and 2 with the plaintiff qua the suit property.
The plaintiff further examined Shri Tersem, Ld. Asstt. Director, L & B Housing depart DDA as PW4 and this witness has stated in his examinationinchief that he was not able to bring the documents with regard to the property no. 78 D, Pocket IV, Mayur Vihar Phase no.1 Delhi as the same are not traceable.
The defendant no.3 Shri Surjeet Kumar Wadhwa has examined himself as D3W1 and in his evidence by way of affidavit he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. He has filed on record Photocopy of the Conveyance Deed is Ex. DW3/1 (OSR), photocopy of the Agreement to Sell is Ex. DW3/2 (OSR), photocopy of the GPA dated 15.02.2003 is Ex. DW1/3 (OSR), copy of the Will dated 15.02.03 is Ex. DW3/4 (OSR), photocopy of the SPA dated 15.02.2003 is Ex. DW3/5 (OSR), photocopy of indemnity bond dated 15.03.2003 is Ex. DW3/6 (OSR), photocopy of affidavit dated 15.02.2003 of Shri Kalyan Tiwari is Ex. DW3/7 (OSR), photocopy of the Agreement to appoint Arbitrator is Ex. DW3/8 (OSR), photocopy of the possession letter dated 15.02.2000 is Ex. DW3/9 (OSR).
In the cross examination D3W1 has stated as under: "My affidavit Ex. D3W1/A has been prepared under my instructions. My residential address has already been disclosed by my in my affidavit D3W1/A. The property in dispute is the same property in which I am residing. The said property was purchased by me in February 2000, from Shri Kalyan Tiwari. The antecedents of the said property were got verified by me before purchasing the same through Ms. Beena Gupta, my Advocate. However, the search report with respect to the said property has not been filed on record by me. I am not aware about the search report. I was not aware as to whether the property in question was already mortgaged or as to whether someone else was having any interest therein. I came to know about the mortgage of the said property with the plaintiff in the year 2002. It is correct that the Conveyance Deed is of the year 2003. It is wrong to suggest that I was aware in the year 2003 at the time of execution of the Conveyance Deed that the property in question was already mortgaged with the plaintiff. Volt. Kalyan Tiwari might be knowing about the same but I was not aware about the same. In the year 2002, I had received a notice in the name of Kalyan Tiwari from the plaintiff wherein it was mentioned that certain amount was due against the said property. I had told about the factum of the receipt of the notice in the year 2002, to my Advocate Ms. Beena Gupta and she had given me a letter which was prepared under my instructions and the said letter was sent to the plaintiff. The witness is asked a question as to whether he has brought the said letter in the court or not. The witness has brought the copy of the said letter dated 10.10.2002 and the said copy is exhibited as Ex. D3W1/X. The said letter Ex. D3W1/X was replied by the plaintiff to my Advocate and the said reply dated 14.11.2002 is hereby exhibited as Ex. D3W1/X1. At the time of execution of the Conveyance Deed, I had submitted the GPA and other documents in my favour to the DDA. Those documents which were submitted by me, to the DDA for the purposes of execution of the Conveyance Deed have already been exhibited in my evidence by way of affidavit in para no.3.
The said property was purchased by me for an amount of Rs. 7 lakhs. The consideration amount of Rs. 7 lakhs for the purchasing of the said property was paid by me to Shri Kalyan Tiwari by way of cheque as well as by way of cash.
Q. I put it to you as to whether you had checked the record of the DDA for finding out as to whether the property in question is having any third party interest prior tot he execution of the conveyance deed ? Ans. There is no such record available with the DDA.
It is wrong to suggest that the conveyance deed placed by me on record has been got executed by me in collusion with the officials of the DDA. It is further wrong to suggest that the said conveyance deed does not confer any clear title with respect to the property in question upon me. No publication was got done by me prior to the execution of the conveyance deed in any newspaper inviting the objection from the general public to the effect as to whether someone was having any interest in the property in question or not. I am not aware till date, that the record of the DDA pertaining to the property in question was lost.
I never informed the plaintiff about the execution of the conveyance deed. I told to my Advocate Ms. Beena Gupta that I had submitted the necessary documents for the execution of the conveyance deed in my favour with regard to the property in question but after the execution of the conveyance deed, I did not inform my Advocate Ms. Beena Gupta about the execution of the conveyance deed. The witness is shown the letter/legal notice dated 14.09.2004 and asked the question as to whether the said letter/legal notice was issued under his instructions. The witness has answered that he does not remember as to whether the said letter/legal notice was issued under his instructions or not. The said letter/legal notice is already exhibited as Ex. PW1/13. Shri Kalyan Tiwari had handed over the previous chain of the documents to me when I purchased the property in question from him. It is wrong to suggest that the property in question has been under valued in the conveyance deed and the actual value of the property has not been mentioned therein. It is wrong to suggest that I have filed a false affidavit or that I am deposing falsely."
The defendant no.4 i.e. the DDA has examined Shri Kishan Malik, its Asstt. Director Land and Building Housing department as DW1/D4 and in his evidence by way of affidavit, this witness has reiterated and reaffirmed the stand as taken by the defendant no.4 i.e. the DDA in the written statement filed by the defendant no.4. He has filed on record the documents reply vide letter no. F.9(37)/85/LAB (H)/DDA/Pt./975 dated 28.10.2005 as Ex. D4/W1/1 (OSR) copy of the reply dated 17.08.06 as Ex. D4W1/2 (OSR), show cause notice and final show cause notice dated 21.08.2006 and 20.09.2006 as Ex. D4W1/3 and Ex. D4W1/4 (OSR).
In the cross examination this witness has stated that Smt. Shanti Tiwari was the original allottee of the flat in question and subsequently on 03.06.1986 Shri Kalyan Tiwari was substituted. This witness has further stated that as per his knowledge, Mr. Surjeet Kumar had purchased the flat in question and DDA came to know about the purchasing of the flat by Defendant no.3 when he applied with the DDA for conversion of the said flat from leasehold to freehold vide application dated 02.11.2002. It has been further stated that the property was converted from leasehold to freehold by the DDA and on 20.05.2003 a conversion deed was executed with freehold right to Shri Surjeet Kumar Wadhwa. It has been further stated that at the time of execution of the conversion deed dated 20.05.2003, DDA was not aware about any mortgage and no mortgage permission was granted by the DDA. This witness has further stated that the main file of the suit property was not traceable and the DDA reconstructed the file after obtaining the approval from the Commissioner (Housing) DDA and on the basis of the documents submitted by defendant no.3. This witness has further stated that no FIR or missing report was filed with the police authorities by the DDA. This witness has further stated that a memo dated 25.04.04 was issued against Shri Ashok Kumar, LDC, Shri Kishan Bihari, Daftari, Ms. Ambika Garg UDC, Mr. Dina Nath, daftari and Shri Ganesh Dutt, the Dealing Assistant, who were responsibly for maintaining the records of the suit property with regard to an internal enquiry regarding the misplacing of the main file of the suit property. In response to a question asked by Ld. Counsel for the plaintiff to the effect that on what basis the DDA reached the conclusion that the letter dated 15.02.93 and 26.02.93 were fake, the witness has answered that the letters bear the designation of some Section Incharge in the DDA but there is no such post and there is no officer by the name of R. Tyagi at the time when the said letter was allegedly issued.
10. My issuewise findings on the abovesaid issues are as under:
Issues No. 1 and 2.
Both these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
The factual controversy and the evidence led by the parties, has already been narrated herein above. The vital question to be considered by this court is as to whether in the light of the abovesaid pleadings and evidence, led by the parties, the plaintiff has been able to prove his case in order to obtain the reliefs sought for by the plaintiff in the present suit.
In the written final arguments filed on record by the plaintiff, it has been argued that defendant no.2 created an equitable mortgage by way of depositing the title deeds on 17.03.1993 in favour of the plaintiff and the documents executed by defendant no.2 in favour of the plaintiff dated 17.03.1993 have already been exhibited as Ex. PW1/2 to Ex. PW1/7. It has been further argued that defendant no.4 i.e. the DDA issued a No Objection Certificate for creation of the abovesaid equitable mortgage vide its letter dated 16.02.1993 Ex. PW1/8. It has been further argued that vide another letter dated 26.02.1993, defendant no.4 undertook and assured the plaintiff that he original documents pertaining to the said property shall be sent directly to the plaintiff upon the conversion of the said property from leasehold to freehold (the said letter dated 26.02.1993 has been placed on record as Ex. PW1/9). It has been further argued that vide letter dated 10.03.1993 Ex. PW1/10 on record the plaintiff confirmed the abovesaid two letters Ex. PW1/8 and Ex. PW1/9. It has been further argued that the DDA failed to place on record the original file on the ground that original file was missing. It has been further argued that execution of the conveyance deed in favour of defendant no.3 was done on the basis of duplicate file created on the basis of papers made available by defendants no.2 and 3. It has been further argued that the charge/mortgage was registered with the office of Registrar of Companies (Delhi and Haryana) and the certificate dated 11.06.92 Ex. PW1/11 on record was also issued in this respect. It has been further argued that the plaintiff took over the possession of the properties of defendant no.1 situated at plot no. H848, RIICO Industrial Area, Bhiwadi under the provisions of section 29 of the State Financial Corporation Act 1951 and realized Rs. 23.50 lakhs by sale/transfer in January 1999 leaving balance of Rs.67,96,699/ to be recovered from defendant no.1 and 2. It has been further argued that the plaintiff vide orders dated 13.08.2002 and 27.08.2002, directed the takeover of the mortgage property of defendant no.2 situated at Mayur Vihar Phase I, New Delhi and took the deemed possession of the suit property of defendant no.2. It has been further argued that subsequent to the takeover of the property of defendant no.2 by way of deemed possession on 27.08.2002 by the plaintiff, defendants no.2 and 3 even approached defendant no.4 and succeeded in the procurement of the conveyance deed dated 20.05.03 in favour of defendant no.3. It has been further argued that for the first time, the plaintiff came to know through the letter dated 14.09.04 of Smt. Beena Gupta Advocate of defendant no.3 of the said conveyance deed dated 20.05.2003. It has been further argued that defendants no.2 and 3 who were well aware of the fact that the suit property stood mortgaged with the plaintiff, but only with a view to frustrate the legal rights of the plaintiff, the said conveyance deed was got executed by defendants no.2 and 3 from defendant no.4. It has been further argued that since the DDA has admitted in the evidence that the original documents were missing and as such, the DDA cannot argue that Ex. PW1/8 and Ex. PW1/9 are forged and fabricated. It has been further argued that defendant no.3 is not a bonafide purchaser for value without notice as he was all along well aware about the equitable mortgage of the property in question with the plaintiff. It has been further argued that defendant no.2 could not have transferred his right, title and interest in the property in question in favour of defendant no.3 on the strength of Agreement to Sell, Will and GPA as defendant no.2 was merely an allottee of the leasehold interest in the property from defendant no.4 on the basis of an allotment letter.
It has been further argued that defendant no.2 preferred to remain exparte and as such, a presumption has to be drawn against him to the effect that transfer/sale of the property in question by defendant no.2 in favour of defendant no.3 is void. It has been further argued that the requisites of equitable mortgage are: (1) Debt, (2) deposit of title deeds, (3) intention that the deed shall be security for the debt and the plaintiff has been able to prove on record all the abovesaid three requisites leading to the conclusion that equitable mortgage was created with the plaintiff. Ld. Counsel for the plaintiff has relied upon the authority titled as Narender Jain Vs. Union Bank of India and others cited as AIR 2005 Delhi 278 wherein it has been held as under : "Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 Section 14 Application for taking possession of property moved by Bank on the basis of equitable mortgage on the strength of title deeds Challenge to order of Chief Metropolitan Magistrate appointing a Receiver to take possession of property by breaking open the locks Petitioner claiming to have entered into agreement to sale Equitable mortgage created prior to accused entering into agreement to sale Held that the petitioner cannot urge that he was bonafide purchaser in due course Writ petition rejected."
Ld. Counsel for the plaintiff has further relied upon the authority titled as The Motor and General Finance Ltd. Vs. Delhi Development Authority and others decided on 03.01.2008 in RSA no. 229/1980 by the Hon'ble High Court, wherein it has been held as under : "Property Bonafide purchaser - Section 53 B of Delhi Development Act Respondent (DDA) allotted plot in favour of deceased Deceased died leaving three daughters Alleging that it had purchased the suit property from the deceased vide sale deed, the appellant filed a suit against 3 daughters of the deceased and DDA, the successorininterest of Delhi Improvement Trust Held, as per records of the Delhi Improvement Trust no document was ever executed by it in favour of the deceased in respect of title in the suit property Only document from which deceased could have derived title in the suit property was the Letter of Allotment Letter of Allotment was also the document on basis of which deceased could have transferred her rights in the suit property in favour of another person Letter of Allotment stipulated that the suit property could not have been transferred until execution of the perpetual lease deed inf avour of the deceased and delivery of the possession of the suit property to the deceased Appellant thus cannot be held to be a bonafide purchaser for the reason he was clearly aware of the fact that the deceased could not have transferred the suit property until execution of the perpetual lease deed in favour of the deceased and delivery of the possession of the suit property to the deceased present second appeal dismissed.
Ratio Appellant cannot be held to be a bonafide purchaser for the reason he was clearly aware of the fact that the deceased could not have transferred the suit property until execution of the perpetual lease deed in favour of the deceased and delivery of the possession of the suit property to the deceased."
11. In the written final arguments filed on record by Ld. Counsel for the defendant no. 3, it has been argued that the cross examination of DW1 is sufficient in itself to show that he has no personal knowledge with regard to the mortgage of the property in suit and other documents and as such, his testimony cannot be read. It has been further argued that in the light of the cross of PW1, his testimony has got no evidenciary value. It has been further argued that from the cross examination of PW1, PW2 and from the testimony of DW1/D4 Shri Kishan Malik (the sole witness examined by the DDA), it is apparently clear that the No Objection Certificate Ex. PW1/8 and the letter dated 26.02.1993 Ex. PW1/9/Y1 were never issued by defendant no.4 and no permission for mortgage of the suit property was ever given by defendant no.4. It has been further argued that the above two documents are forged and fabricated. It has been further argued that from the testimonies of DW1/D4 it is apparently clear that there was no post of Section Incharge in Housing department as mentioned and furthermore, no officer with the name of R. Tyagi was ever posted with the DDA at the time when the said letters were allegedly issued. It has been further argued that defendant no.4 in response to the letter dated 17.08.2006 Ex D4W1/2, has clarified that there was no post of Section Incharge in the Housing department and no officer with the name of R. Tyagi was ever posted therein. It has been further argued that the plaintiff has also not been able to prove on record Ex. PW1/10 Ex. PW1/16 and Ex PW1/17. Ld. Counsel for the defendant no.3 in the written final arguments has also assailed the testimonies of PW2 and has argued that the plaintiff has utterly failed to prove its case and the witnesses PW1 and PW2 who are the two witnesses examined by the plaintiff are hesitant in the cross examination and have given vague and evasive replies. It has been further argued that the cross examination of PW2 is on the same lines as is the cross examination of PW1 and as such PW2 as well has utterly failed to prove the case of the plaintiff. It has been further argued that from the cross examination of PW2, it is apparently clear that no documents have been placed on record by the plaintiff pertaining to the sale, statement of account, publication, delivery of notice etc. and as such, the present suit is merely a blackmailing tactics filed by the plaintiff knowing fully well that defendant no.3 is the owner of the property in question in his own right without notice of any transaction or defendants no.1 and 2 with the plaintiff qua the suit property. It has been further argued that in the absence of any No Objection Certificate from the principal lesser i.e. the DDA, no mortgage could have been created.
12. In the written final arguments filed on record by the DDA, the DDA has reiterated the abovesaid stand as taken by defendant no.3 and has argued that no mortgage permission was ever given by the DDA regarding the alleged mortgage and the letter dated 16.02.1993 and 26.02.1993 are forged and fabricated. It has been further argued that for the first time, the DDA by the letter of the plaintiff dated 01.06.05 came to know about the said mortgage of the property in question and immediately thereafter, the said letter was duly replied vide reply dated 28.10.2005. It has been further argued by the DDA that it has already issued show cause notice to the defendant no.2 regarding suppressing of the facts of the mortgaging of the suit property with the plaintiff and thereafter, the final show cause notice dated 20.09.2006 was also issued but no reply has been received by the DDA. It has been further argued that DW1/D4, Shri Kishan Malik, the Asstt. Director of the DDA has been able to prove that it never issued any letter/No Objection Certificate vide letter dated 16.02.1993 or 26.02.1993 and the same are seemed to be fake and thus, not binding upon the DDA. It has been further argued that the suit property was a leasehold property and it was the prime duty of the plaintiff to get the same reverified properly for full authenticity. It has been further argued that there was no post of Section Incharge in the Housing department and no officer by the name of R. Tyagi was ever posted therein with the DDA at the time of issuance of Ex. PW1/8 and Ex. PW1/9. It has been further argued that the factum of conversion of the suit property into freehold from leasehold on the basis of the documents submitted, has been done in accordance with the settled due procedure and legal principles.
13. In the light of the abovesaid pleadings, evidence led by the parties and arguments advanced at bar by the plaintiff, by defendant no.3 and by the defendant no.4 i.e. DDA, the vital questions which are to be decided by this court are as to whether the plaintiff has been able to prove the No Objection Certificate / letters dated 16.02.1993 and 26.02.1993 Ex. PW1/8 and Ex. PW1/9 allegedly issued by the DDA; as to whether the plaintiff has been able to prove that equitable mortgage was created by defendant no.2 with the plaintiff by submission of Ex. PW1/2 to Ex. PW1/7 with the plaintiff prior to the purchasing of the property in question by defendant no.3 from defendant no.2 and prior to the execution of the conveyance deed in favour of defendant no.3 by the defendant no.4 at the instance of defendant no.2; as to whether the plaintiff has been able to prove that defendant no.3 was not a bonafide purchaser for value without notice.
14. Needless to mention that the property in question was the leasehold property at the time of creation of the alleged equitable mortgage with the plaintiff by defendant no.
2. DDA i.e defendant no.4 was the principal lesser. The plaintiff has relied upon the two documents Ex. PW1/8 dated 16.02.1993 i.e. NOC issued by the DDA and the letter dated 26.02.1993 Ex. PW1/9. The abovesaid two letters have been executed by one Shri R. Tyagi, Section incharge Housing department, DDA. The defendant no.4 i.e. the DDA has examined Shri Kishan Malik, its Assistant Director as DW1/D4 and in his cross examination this witness has categorically stated that the above two documents are forged and fabricated. Going by the evidence led by the parties, I have no hesitation to hold that the plaintiff has utterly failed to prove on record the issuance of the above two letters by the DDA. Admittedly, no action has been initiated by the plaintiff against the officials of the DDA. The above witness has categorically stated that the said letters Ex. PW1/8 and Ex. PW1/9 are forged and fabricated and there is no post of Section In charge Housing Department and moreover, there was no official with the name of R. Tyagi posted with the DDA at the time when the said letters were allegedly issued. I am of the opinion that Ld. Counsel for the defendant no.3 in the written final arguments has rightly argued that defendant no.4 was the principal lesser of the suit property and no third party interest could have been created with the permission from the lesser. It has been brought on record by cogent evidence, to my mind that defendant no.4 did not grant any permission to the plaintiff for creation of the alleged equitable mortgage qua the suit property. I am also of the opinion that the plaintiff has also failed to prove the acknowledgment of the letter Ex. PW1/16 if the cross examination of PW1 is carefully gone through. I am of the opinion that from the testimony of PW1 and the exhibited documents Ex. PW1/10, Ex. PW1/16, Ex. PW1/17, the conclusion which can be safely drawn is that defendant no.4 was never informed regarding the mortgage of the suit property in the year 1993 when the alleged mortgage was created in favour of the plaintiff with regard to the suit property.
15. If the cross examination of PWs is carefully gone through, it becomes apparently clear that both the PWs have given vague and evasive replies in the cross examination and the cross examination of both the abovesaid PWs is shaky. It has to be seen that there are no averments with regard to the recovery of money in the plaint or in the affidavit of PWs. Nothing has been placed on record by the plaintiff with regard to the sale, statement of account, publication delivery of the notices etc. I am also of the opinion that the Ld. Counsel for the defendant no.3 has rightly argued in the written final argument that plaintiff has not placed on record any documents to show that the defendant no.2 had pledged / mortgaged any other assets except the suit property for sanction of the alleged loan.
16. There cannot be any deviation from the proposition of the law as laid down in the authority titled Narender Jain Vs. Union Bank of India and others cited as AIR 2005 Delhi 278 relied upon by Ld. Counsel for the plaintiff but in the above stated authority, the Hon'ble High Court has considered the question as to whether u/s 13 and 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the respondent bank could proceed under the said Act or section 53 A of the Transfer of Property Act would come in its way. In the said authority, the Hon'ble High Court of Delhi held that the petitioner could not urge that he was bonafide purchaser for consideration prior to the creation of the equitable mortgage and rights of the respondent bank were not that of a transferee and rather equity was that of the mortgagee. As such, the Hon'ble High Court of Delhi did not find any ground to interfere in the exercise of the written jurisdiction in the above authority. The facts of the present case are discernible, to my mind, with due respect to the observation of the Hon'ble High Court in the abovesaid authority. In the case in hand, the plaintiff has categorically asserted that No Objection Certificate was obtained from the DDA at the time when the equitable mortgage deed was allegedly created by defendant no.2 in its favour. As stated by me herein above that defendant no.4 was the principal lesser. The plaintiff has utterly failed to prove on record the Ex. PW1/8 and Ex. PW1/9 the two letters dated 16.02.1993 and 26.02.1993 allegedly issued by the DDA with respect to the No Objection Certificate and the assurance. Rather, the DDA has been able to bring home the point that abovesaid two letters are forge and fabricated. No proceedings have been initiated by the plaintiff against the erring official of the DDA, if any. As such, I am of the opinion that the suit of the plaintiff is not covered by the ratio of the abovesaid authority of the Hon'ble High Court of Delhi.
17. Now let us discuss the contention of the Ld. Counsel for the plaintiff that defendant no.3 cannot be said to be a bonafide purchaser without notice for value. In this regard, it has to be seen that defendant no.3 has categorically asserted in the cross examination that for the first time he came to know about the mortgage of the said property with the plaintiff in the year 2002. Defendant no.3 has further asserted in the cross that he had told about the factum of receipt of the notice in the year 2002 to his Advocate Ms. Beena Gupta and she had given him a letter which was prepared under his instruction and the said letter was sent to the plaintiff. The copy of the letter dated 10.10.02 has been exhibited as Ex. D3W1/X and the reply dated 14.11.02 has been exhibited as Ex. D3W1/X1. The conveyance deed is of the year 2003. I am of the opinion that the plaintiff has utterly failed to prove that defendant no.3 was aware about the mortgage of the property in question with the plaintiff prior to the year 2002. As such, I am of the opinion that the ratio of the authority of the Hon'ble High Court of Delhi titled as The Motor and General Finance Ltd. Vs. Delhi Development Authority and others, with due respect to the observation of the Hon'ble High Court of Delhi in that authority, is not applicable to the facts and circumstances of the present suit.
18. Now let us discuss the controversy as to whether the defendant no.2 validly created the equitable mortgage in favour of the plaintiff by depositing of Ex. PW1/2 to Ex. PW1/7. In this regard, Ld. Counsel for the plaintiff has relied upon an authority citied as AIR 2007 SC 3169 titled as Syndicate bank Vs. Estate officer and manager A. P. I. I. C. Ltd. and others. In the said authority, the Hon'ble Supreme Court of India in para no 20 and 21 thereof has observed as under: "The requisites of an equitable mortgage are: (i) a debt; (ii) a deposit of title deeds; and (iii) an intention that the deeds shall be security for the debt. The existence of the first and third ingredients of the said requisites is not in dispute. The territorial restrictions contained in the said provision also does not stand as a bar in creating such a mortgage. The principal question, which, therefore, requires consideration is as to whether for satisfying the requirements of Section 58 (f) of the Transfer of Property Act, it was necessary to deposit documents showing complete title or good title and whether all the documents of title to the property were required to be deposited. A' fortiori the question which would arise for consideration is as to whether in all such cases, the property should have been acquired by reason of a registered document.
Each case will have to be considered on its own facts. A jurisprudential title to a property may not be a title of an owner. A title which is subordinate to an owner and which need not be created by reason of a registered deed of conveyance may at times create title. The title which is created in a person may be a limited one, although conferment of full title may be governed upon fulfillment of certain conditions. Whether all such conditions have been fulfilled or not would essentially be a question of fact in each case. In this case a right appears to have been conferred on the allottee by issuance of a valid letter of allotment coupled with possession as also licence to make construction and run a factory thereon, together with a right to take advances from banks and financial institutions; subject, of course, to its fulfillment of condition may confer a title upon it in terms of Section 58 (f) of the Transfer of Property Act, but the question would be whether such a right is assignable.
In Mulla's Transfer of Property Act, a large number of cases ahve been noticed where even a patta of land has been considered to be a document of title depending of course on the circumstances under which it had been given. Moreover, if insistence on the document of the title is lost, no mortgage of deposit of title deed can be created at all. It is, however, one thing to say that a person cannot convey any title, which he himself doe not possess; but it is another thing to say that no mortgage can be created unless he obtains title by reason of a registered conveyance."
19. A careful perusal of the abovestated authority reveals that the Hon'ble Supreme Court of India referred the matter to the larger bench and as such, the above stated authority is not applicable to the fact and circumstances of the present suit atleast at this stage. Furthermore, it has already been observed, herein above that defendant no.4 was the principal lesser and the plaintiff has utterly failed to prove on record the No Objection Certificate / letter Ex. PW1/8 and Ex PW1/9 and rather, the defendant no.4 has been ale to establish on record that the abovesaid two letters are forged and fabricated. As such, without the permission of the principal lesser, to my mind, no equitable mortgage was created by defendant no.2 with the plaintiff.
20. In the light of the abovesaid discussion, I have no hesitation to hold that plaintiff has utterly failed to prove both the abovesaid issues in its favour and as such, both the issues i.e. Issues No. 1 and 2 are decided against the plaintiff. Issue no.3 and 6.
Both these issues are being taken up together as the same are connected with the maintainability of the present suit. So far as issue no. 6 is concerned, the same has already been decided by my Ld. Predecessor in favour of the plaintiff vide order dated 25.01.2010 and as such, issue no.6 is not required to be adjudicated afresh.
Now coming to issue no.3 i.e. the issue of maintainability of the present suit in the present form, Ld. Counsel for defendant no.3 has argued that the present suit is not maintainable in the present form as the suit property is not at all related to the plaintiff in any manner. It has to be seen that he present suit is a suit for declaration and mandatory injunction filed by the plaintiff on the basis of the document Ex. PW1/2 to Ex. PW1/7 stating therein that by execution of the said documents, equitable mortgage was created by defendant no.2 in favour of the plaintiff qua the suit property. It is the admitted position that conveyance deed with respect to the suit property stand already executed by defendant no.4 in favour of defendant no.3. The plaintiff has sought the relief of declaration declaring the said conveyance deed to be null and void alongwith the relief of mandatory injunction. As such, I am of the opinion that the present suit is maintainable in the present form and accordingly, this issue is decided in favour of the plaintiff.
Issue no. 4 Now coming the issue of limitation, it has to be seen that the orders for attachment of the suit property were issued by the plaintiff vide letter dated 13.08.2002 and 27.08.2002 Ex. PW1/12. The present suit has been filed in the year 2006. In response to the letter dated 10.10.2002 the plaintiff replied vide reply dated 14.11.2002 which is Ex. D3W1/X1 on record. In the said letter, Shri Ashok Mathur, Manager (Documentation) of the plaintiff has categorically referred that Shri Kalyan Tiwari owner of the property in question has mortgaged the property in question with the plaintiff. Furthermore, the letter dated 20.12.2004 Ex PW1/14 is there on record which is under the signatures of Shri L.K. Maheshwari wherein, reference has been made to the letter dated 14.11.2002. As such, I have no hesitation to hold that in the year 2002, the plaintiff was clearly aware about the claim of defendant no.3. The present suit is a suit for declaration. As per article 58 of the Limitation Act 1963, in order to obtain any other declaration, the suit has to be filed within a period of three years when the right to sue first accrues. Ld. Counsel for the defendant no.3 has vehemently argued in the written final arguments that right to sue first accrues atleast in the year 2002 with the plaintiff. Ld. Counsel for the defendant no.3 has relied upon an authority titled as Sukhbiri Devi and others Vs. UOI and others, RSA No. 79/07 decided on 25.08.2009 by the Hon'ble High Court of Delhi, wherein the Hon'ble High Court of Delhi has held as under: "Thus, it is clear that period of limitation for suits for declaration is three years from the date when the right to sue first accrues. What is relevant in this awticle is that the limitation starts running on the date when the right to sue first accrues and not on subsequent dates even if a cause of action has arisen on subsequent occasions as well. The right to sue can be treated as having arisen when there was clear or unequivocal threat proceeding from the opponent and that a threat which clearly invades or jeopardizes the plaintiff's right can be taken as giving rise to a cause of action to take steps for smothering such a threat. As per the language of the article computation of the period of limitation has to be done by tracking it back to the time when the right to sue accrued for the first time."
But it has to be seen that as per article 56 of the Limitation Act, a suit for declaration for the forgery of an instrument issued or registered has to be filed by the plaintiff within a period of three years from the time when the issue or registration becomes known to the plaintiff. In the case in hand, the plaintiff has sought the declaration that the conveyance deed executed by defendant no.4 in favour of defendant no.3 be declared as null and void. The conveyance deed is dated 20.05.2003. As such, I am of the opinion that the suit of the plaintiff is within the period of limitation and accordingly, I hold that the defendants have failed to prove this issue in their favour and accordingly, this issue of Limitation is decided in favour of the plaintiff and against the defendants.
Issue No. 5.
The onus to prove this issue is on the defendants. Ld. Counsel for the defendant no.3 in the written final argument has argued that the plaintiff is seeking recovery of the loan amount under the garb of the instant suit for declaration and mandatory injunction and as such, the plaintiff should have paid the court fees on Rs.69.93 lakhs which was allegedly advanced to defendant no.1 through the defendant no.2 by the plaintiff. As stated by me herein above, in the present suit the plaintiff is seeking the declaration of the conveyance deed dated 20.05.2003 as null and void. The conveyance deed mentions the valuation of the property as Rs.1,31,200/. The plaintiff has valued the suit at the said amount for the purposes of court fees and jurisdiction and as such, I am of the opinion that the present suit has been valued properly. Accordingly, this issue i.e. issue no.5 is also decided in favour of the plaintiff and against the defendants. Relief.
In the light of my findings upon issues no.1 and 2 the present suit of the plaintiff hereby dismissed but with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 29th day of November 2012 JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.