Andhra HC (Pre-Telangana)
District Co-Operative Central Bank, ... vs V. Suryanarayana Setty And Others on 1 March, 2000
Equivalent citations: 2000(2)ALD646, 2000(2)ALT444, AIR 2000 ANDHRA PRADESH 371, (2000) 3 BANKCLR 528, (2000) 3 CIVLJ 194, (2000) 2 ANDH LT 444, (2000) 2 ANDHLD 646
ORDER
1. The question that arises for consideration in this revision petition is, whether the petition filed by the District Co-operative Central Bank, Chittoor under Section 83 of the Transfer of Property Act (for short 'the Act'), seeking relief of redemption of mortgage and for delivery of vacant possession of the petition schedule property, is maintainable.
2. The facts leading to the case are as follows:
The case has a chequered career. Y. Kamalamma and Girijamma borrowed a sum of Rs.500/- in March, 1954 from M. Sarojamma and executed a registered usufructuary mortgage deed. Subsequently Sarojamma transferred the said mortgage in favour of one Donti Lakshmaiah Chetty on 24-8-1955 and later Lakshmaiah Chetty transferred the same in favour of M. Chandra Mouli and his wife in 1957. Thereafter, these persons again transferred the mortgage deed to the respondent, V. Swyanarayana Setty on 21-1-1959. However, the said Suryanarayarta Setty died and his legal representatives were brought on record. It is also stated that Kamalamma borrowed a farther sum of Rs.300/- from the respondent and executed another usufructuary mortgage deed on 9-1-1960 in respect of petition schedule property. On the death of Kamalamma and her daughter Girijamma one Natarajan, grand-son of Kamalamma and son of Girijamma, and others succeeded to the petition schedule property. On 29-5-1980 Natarajan and others sold the petition schedule property along with adjoining property to the petitioner-Bank subject to mortgage by two separate registered sale deeds dated 29-5-1980. However, when the petitioner tried to take delivery of the petition schedule property it was resisted. Even to the notice issued to the respondents reply was issued resisting the claim. Therefore, petition was filed for redemption of mortgage property and for possession.
3. The first respondent filed a counter denying the averments made in the petition and it was stated that Kamalamma had gifted some of the properties to Natarajan and Kumaraswmay, and some other properties to her relatives. The said Kamalamma was religious minded person performing religious functions in Sri Kalyana Venkateswara Swamulavari Temple, Punganur during her lifetime. Therefore, Natarajan and Kumaraswamy in order to honour the devotional dedication gifted the petition schedule property and other properties to the temple in the presence of all usufructuary mortgagees on 26-12-1976. Therefore, on that date onwards the property vested in the temple. Hence, it is stated that the title of the petitioner itself is in dispute and the present application cannot be entertained in this Court. The correctness of the sale deed is also disputed. Basing on the respective contentions the lower Court framed the following issues.
"1. Whether the respondents are to be directed to receive the amount of Rs.800/- and redeem the mortgage debt, dated 21-3-1954 and 9-1-1960 and to deliver the vacant possession of the petition schedule property?
2. To what relief?"
On behalf of the petitioner-Bank PW1 was examined and no witness was examined for the respondents. Exs.P1 and P2 were got marked for the petitioner-Bank and no document was got marked for the respondents.
4. The lower Court after considering the matter found that the petition under Section 83 of the Act, seeking relief of redemption, was not maintainable and, therefore, dismissed the petition filed by the Bank, against which the present revision petition has been filed.
5. The learned Counsel appearing for the petitioner-Bank submits that the order of the Court below is erroneous and contrary to law. He also submits that the petitioner-Bank has purchased the petition schedule property for a valid consideration and the mortgage amount was also deposited in the Bank. Since the respondents were willing to redeem the mortgage by paying the mortgage amount, the only remedy for appropriate relief lies under Section 83 of the Act, and the lower Court did not properly appreciate the provisions thereof. He alternatively submits that if at all there is an omission, the omission is not converting the petition into suit under Section 91 of the Act, which is purely technical in nature. The lower Court ought to have rectified the same, as it had territorial and pecuniary jurisdiction to adjudicate such matter.
6. On the other hand, the learned Counsel appearing for the respondents submits that when a dispute as regards title of the property is raised, no application would lie under Section 83 of the Act. Moreover, the conditions precedent for exercising the power under Section 83 of the Act have not been fulfilled in this case. Further, it was already brought out in the written statement filed by the respondents that the property was gifted to the temple, He also submits that the petitioner-Bank raised a dispute with regard to the title of the petition schedule property before the Deputy Commissioner of Endowments, claiming the same by virtue of sale in its favour and that the Deputy Commissioner held against the petitioner-Bank and that order has become final. Therefore, it was held to be the property of the temple. Thus he submits that there is a substantial dispute with regard to the title of the property, which cannot be decided under Section 83 of the Act in which only summary proceedings are contemplated. He relies on the decision of the Madhya Pradesh High Court reported in Durga Prasad v. Tulsya Bai, 1998 (2) CCC 14 = 1998 (3) ALT 19-1 (DN OHC), and also Supreme Court in Raghu Nath v. Competent Officer, Delhi, .
7. The leaned Counsel advanced the arguments at length on this aspect. The only issue that arises for consideration is, whether the petition filed by the Bank under Section 83 of the Act is maintainable. Admittedly the suit schedule property was covered by usufructuary mortgage, which was being transferred in favour of several persons right from 1954. According to the written statement, on 26-12-1976 the petition schedule property was gifted to the temple and it is only in 1980 sale deed was effected in favour of the petitioner-Bank.
8. For proper appreciation of the case, it is necessary to refer Section 83 of the Act, which is reproduced below :
"At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgage, the amount remaining due on the mortgage.
Right to money deposited by mortgagor: The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage-deed, and all such other documents, so deposited shall be delivered to the mortgagor or such other person as aforesaid.
Where the mortgagee is in possession of the mortgaged property, the Court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to retransfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgment in writing that any right in a derogation of the mortgagor's interest transferred to the mortgagee has been extinguished."
9. A reading of the above provision clearly contemplates that a mortgagor or any other person, entitled to institute a suit, shall deposit the mortgage money in the Court and the Court shall issue notice to the mortgagee and in case the mortgagee presents petition expressing his willingness to accept deposit in discharge of the mortgage amount and on depositing the mortgage deed in the Court and other documents the same shall be delivered to the mortgagor or the other person. However, if the mortgagee is in possession of the property, the Court shall direct the mortgagee to deliver the possession to the mortgagor after proper documentation. Therefore, under Section 83 of the Act the mortgagor or any other person is required to deposit the amount before the expiry of limitation for filing the suit for redemption and if the amount is so deposited a notice is issued to the mortgagee, and if he expresses his willingness and accepts the money, other proceedings would go on. Therefore, apart from deposit of the money the other necessary ingredients are: mortgagee should also express his willingess to receive the amount in full discharge of the mortgage amount and that he shall deposit the mortgage deed and all other documents. But, however, if a dispute is raised, Section 83 of the Act would not entitle the Court to resolve the dispute.
10. In the instant case written statement was filed by the first respondent stating that title of the petition schedule property vested with the temple and, therefore, petition was not maintainable under Section 83 of the Act. When the mortgagee refuses to express his willingness to accept the deposit and other conditions as stated in Section 83 of the Act, no further proceedings would be taken. The only alternative remedy available for the mortgagee, or other person claiming through mortgage is to initiate suit proceedings for redemption of mortgaged property. Admittedly, in the instant case substantial defence was taken by the first respondent stating that the title had been vested with the temple and the Deputy Commissioner of Endowments also declared that it is the property of the temple, while the petitioner-Bank claimed the title by virtue of sale deed effected by the mortgagee in 1980. Thus, it was established that the respondent was not wilting to accept the deposit, if any, made in the Court apart from the conditions contemplated under the said provision. In such an event petition under Section 83 of the Act would not lie and necessarily suit for redemption of mortgaged property has to be instituted as required under Section 91 of the Act.
11. The learned Counsel for the petitioner-Bank however, submits that the respondent did not lead any evidence to show that there was a bona fide dispute with regard to the title and, therefore, suit need not be instituted. I am unable to accept the said contention, as in the written statement the respondent categorically denied the title. The respondent did not also express his willingness to receive the money in complete discharge of mortgage suit.
12. The intendment of Section 83 of the Act is to ensure that the mortgaged properties are released to the mortgagor without driving him to institute a suit for redemption, if the mortgagor deposits the amount before the limitation fixed for filing a suit for redemption of mortgaged property and if it is accepted by the mortgagee subject to the conditions therein. Therefore, instead of filing a regular suit for redemption of mortgaged property, if the mortgagor and the mortgagee fulfil the conditions mentioned in Section 83 of the Act no further process is necessary between the parties. Thus, the section aims at preventing the parties from taking recourse to civil proceedings. But when once there is a dispute between the parties resulting in non-compliance of conditions stipulated in Section 83, it has to bee necessarily resolved in regular suit for redemption of mortgaged property.
13. Thus, I do not find any infirmity or irregularity in the order of the Court below.
Accordingly, the civil revision petition is dismissed. No costs.