Delhi District Court
Union Bank Of India vs M/S Surindra Electronics on 19 July, 2013
Union Bank of India Vs M/s Surindra Electronics
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL : ADDL. DISTRICT
JUDGE (CENTRAL) 08, TIS HAZARI, DELHI
C. S. No. 18/08
Union Bank of India ..........Plaintiff
VERSUS
Surindra Electronics & ors ..........Defendant
ORDER ON THE APPLICATION U/O 7 RULE 11 CPC
1.Vide this order, I shall dispose of the application under Order VII Rule 11 CPC, moved by the defendant no.2.
2. The brief facts giving rise to this application are that Union Bank of India (herein after referred as plaintiff) filed the suit under Order XXXIV CPC for sale of mortgaged property against M/s Surindra Electronics through its proprietor Sh. Gurcharan Singh and Smt. Surinder Kaur (herein after referred as defendants). It is alleged that the defendants approached the plaintiff's bank for loan amounting to Rs. 2.5 lacks against hypothication which was sanctioned on 16.10.99. Requisite documents were executed and the defendant no.2 stood guarantor for defendant no.1. The limit was enhanced to Rs. 4 lacs on the request of the defendant on 7.3.2000. At the time of enhancing the limit, the defendant no.2 also deposited the original title deed of immovable property that is portion of property bearing no. E/64, built on land measuring 42 sq.yds. Approx. (377 sq. ft.) out of Rectangle No. 30, Killa No.2, ::1::
Union Bank of India Vs M/s Surindra Electronics situated in the area of village Khiala in the abadi of Vishnu Garden in Block, Khilala Road, New Delhi and bounded as under:
North: Portion of Property No. E/64 South: Main Khyala Road East: Portion of Property No. E/64 West: Main Gali and herein after referred as the mortgaged property. These documents were deposited on 18.10.99 by defendant no.2. It was agreed that the amount will be repaid from time to time with interest of 16.32% per annum with quarterly rests but defendant did not maintain the financial discipline and failed to make the payment. There was outstanding of Rs. 9,09,516 against the defendants on 30.09.2007. Legal notice dated 20.10.2007 was also sent but amount has not been paid. Defendant no.1 also signed the confirmation on 5.11.2001 to the tune of Rs. 4,46,076/- and hence the suit under Order XXXIV CPC seeking sale of the mortgaged property.
3. Defendant filed the written statement and also moved this application under Order 7 Rule 11 CPC reply to which was also filed.
4. I have heard ld. counsel for the plaintiff, ld. counsel for defendant and perused the record.
5. Ld. counsel for the defendant submitted that the present suit is barred by limitation as according to the plaintiff himself the ::2::
Union Bank of India Vs M/s Surindra Electronics loan amount of defendant no.1 was declared NPA in the year 2002 but the first time legal notice was given in 2007, even according to the plaintiff as mentioned in para no.13, balance confirmation was signed by the defendant no.1 on 5.11.2001, from 05.11.2001 or from the date the account was declared NPA i.e. in 2002. Three years expired in 2005. The suit has been filed in 2008 and is thus barred by limitation, therefore, liable to be rejected under Order VII Rule 11 CPC.
6. Ld. counsel for the plaintiff submitted that the suit is not for recovery but is for the sale of mortgaged property under Order XXXIV CPC. The limitation for sale of mortgaged property is 12 years and not three years. The property was mortgaged with bank by the defendant on 18.10.1999 by depositing the original title deed that is the sale deed. The limitation started from 18.10.1999. 12 years will expir on 2011. The suit has been filed in 2008 i.e. on 09.01.2008 and is thus within limitation.
7. Keeping in view the fact that the suit is not for recovery but it is for the sale of the mortgaged property which was mortgaged with the bank and the limitation is 12 years and not three years as is applicable in the case of the recovery. Keeping in view this legal position, in my opinion the suit is not barred by limitation, hence cannot be rejected on this ground.
8. Ld. counsel for the defendant further submitted that for claim under Order XXXIV CPC there must be some mortgage deed but there is no mortgage deed placed on record, in fact no ::3::
Union Bank of India Vs M/s Surindra Electronics property was mortgaged by the defendant with the bank and hence, suit under Order XXXIV CPC in the absence of mortgage deed is not maintainable, therefore, liable to be rejected under Order VII Rule 11 CPC.
9. Ld. counsel for the plaintiff submitted that it was an equitable mortgage as the loan money was secured by deposit of title deeds. The title deeds were deposited with the bank on 18.10.1999 by depositing the original title documents and hence the plaintiff is within its right to file the present suit.
10. After hearing the arguments and going through the record, I found that for creating an equitable mortgage, the only requirement is that the loan amount is secured with deposit of title deeds and there has to be some writing in this regard and the record shows that the defendant has deposited the documents with the bank and document to this effect was reduced into writing which is available on record showing that defendant no.2 deposited the original sale deed dated 30.08.1999 duly registered as document no. 5963 in additional book no. I, vol. 9321 of pages 161 to 167 on 31.8.1999. General Power of Attorney dated 6.6.1990 in favour of Sh. Gurcharan Singh. Certified copy of Sale Deed dated 5.3.65. From this it is clear that it is a case of equitable mortgage according to the plaint and documents and hence maintainable under Order XXXIV CPC.
11. Keeping in view the above discussion, in my opinion in ::4::
Union Bank of India Vs M/s Surindra Electronics view of the pleadings and the documents, the suit is not liable to be rejected under Order VII Rule 11 CPC. The application is therefore dismissed.
Now to come up for framing of issues on 26.08.2013.
Announced in Open Court on 19th July, 2013. VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI ::5::
Union Bank of India Vs M/s Surindra Electronics 19.07.2012.
Present: Sh. Anil Kumar Singh, Adv. for the plaintiff.
Sh. M. L. Sharma, Adv. for defendants.
Vide separate order, application u/O 7 Rule 11 CPC is dismissed.
Now to come up for framing of issues on 26.08.2013.
VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI ::6::