Bangalore District Court
Sri.Rhima Banu vs State Bank Of Hyderabad on 18 September, 2017
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BANGALURU
(CCH-20)
Present:
Sri.G.S.Sangreshi, B.A., LL.B.(Spl.)
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 18th day of September, 2017,
O.S.No.15867/2005
Plaintiff:- Sri.Rhima Banu
W/o Mr.A.M.Shoukat Ali,
Aged about 42 years,
R/a. No.72, Ground/Third Floor,
Kumbarpet main Road,
Bengaluru-560 002.
[By Sripada Asst-Advocate]
Vs.
Defendant:- State Bank of Hyderabad,
IDPL Colony Branch,
Hyderabad-Represented by its
Manager.
[By : Sri.M.N.-Advocate]
2 OS No.15867/2005
Date of Institution of 11.03.2005
suit:
Nature of the Suit (Suit Mortgage
for Pronote, Suit for
Declaration and
Possession, Suit for
Injunction, etc.):
Date of 25.07.2011
Commencement of
recording of
evidence:
Date on which the 18.09.2017
Judgment was
pronounced:
Total Duration:
Years Months Days
12 06 07
( G.S.SANGRESHI )
XXVI Addl. City Civil Judge, Mayo Hall,
Bangaluru.
3 OS No.15867/2005
JUDGMENT
This is a suit filed by the plaintiff, seeking to grant an order of Redemption of Mortgage in respect of the suit property, by accepting the Mortgage Debt of Rs.2,00,000/- by the Plaintiff and consequently, direct the defendant to register a Deed of Discharge before the jurisdictional Sub-Registrar, and for Permanent Injunction, restraining the Defendant Bank, its men, agents, etc., from alienating, selling or creating any encumbrance on the suit property and for cost.
2. The brief facts of the case of the Plaintiff are that, one Venkatalakshmamma was the absolute owner in peaceful possession and enjoyment of the house property bearing Municipal No.71/2, New No. 185/72, New No.72, 4 OS No.15867/2005 measuring East-West: 43.4+18.7½ / 2, North- South : 51 feet, and she had offered the said Suit property as collateral security to the defendant Bank for the Loan transaction of Doctor Biscuits Private. Ltd., Secundarbad, Andhra Pradesh who was the Principal Borrower of the Defendant Bank Accordingly, the Simple Mortgage Deed came to be executed between the said Smt.Venkatalakshmamma and the Defendant Bank on 19.07.2000, for the mortgage debt of Rs.2,00,000/- and there was no stipulation of time for the said mortgage transaction. It is further stated that, the plaintiff entered into a Possessory Mortgage dtd. 27.09.2002 with the LRs. of the owner of the Suit property as the said Smt.Venkatalakshmamma died on 07.02.2002 in Bengaluru City. The Lrs. of the deceased Venkatalakshmamma executed a Notarized 5 OS No.15867/2005 General Power of Attorney on 18.06.2003 in favor of R.Nandakumar. Thereafter, a Joint Development Agreement was executed between the Plaintiff on the one hand and the owners of the property on the other hand and the plaintiff has acquired 50% right, title and interest over the suit property in terms of the said JDA. Since the owners of the property refused to execute the Deed of Conveyance in favour of the Plaintiff herein, the Plaintiff filed OS No.15757/2003, which came to be decreed under a compromise decree dtd 31.07.2003. By virtue of the said Decree the Plaintiff became the absolute owner of the suit property. He got transferred the katha in her name in the records of Bengaluru Mahanagara Palike. It is further stated that, the plaintiff is a bonafide purchaser for value, without notice and in fact she was not aware of the existing 6 OS No.15867/2005 mortgage of the suit property in favor of the Defendant Bank. According to the provisions of Sec.91 of the T.P.Act, she is legally entitled to seek redemption of the exiting mortgage in favor of the defendant bank. Though she approached the defendant bank, the bank has refused to redeem the existing mortgage. Therefore, it is prayed to decree the suit.
3. In pursuance of suit summons, the defendant appeared through its counsel and filed the written-statement.
4. It is contended by the defendant in the written-statement that, the suit of the Plaintiff is not maintainable in law and the same is barred u/o.7 Rule-11(d) of the CPC. The suit is not maintainable as the defendant filed O.A. No.130/2003 before the Debts Recovery Tribunal at Hyderabad against M/s. Doctor Biscuits Private 7 OS No.15867/2005 Ltd and others, wherein Smt. Venkatalakshmamma was arrayed as 5th Defendant and a decree came to be passed for Rs.60,26,035.90, by issuing a Recovery Certificate for attachment of sale of the Petition schedule property, to recover the Bank Dues. Secs. 18 and 29 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 bars the jurisdiction of the courts and other authorities and therefore the suit filed by the Plaintiff seeking redemption and permanent injunction in respect of the property ordered to be sold by the Recovery Certificate issued in OA No.130/2003 is not maintainable in law and liable to be dismissed. It is stated that, Smt. Venkatalakshmamma offered the Plaint suit property as a collateral security to the defendant Bank to secure loans sanctioned to M/s.Doctor 8 OS No.15867/2005 Biscuits (P) Ltd and M/s.Doctor Brine Chemicals (P) Ltd. Apart from executing the simple mortgage deed dtd.19.07.2000, said Venkatalakshmamma created Equity Mortgage by way of deposit of title deeds on 14.07.2000 and deposited the title deeds on 15.07.2000 and her liability is not restricted to Rs.2,00,000/-. The defendant bank has denied the plaint allegations except the admitted one. To redeem the mortgage, the plaintiff has to satisfy the decree passed by the Debts Recovery Tribunal, Hyderabad in O.A. No.130/2003 and the suit is therefore not maintainable. Therefore, it is prayed to dismiss the suit.
5. On the pleadings of both parties, following issues & Additional Issues are framed :-
1. Whether the plaintiff proves that he has acquired 50% of title 9 OS No.15867/2005 and rights over the suit property under the Joint Development agreement?
2. Whether plaintiff proves that, she is a bonafide purchaser for value before notice of mortgage of the suit property?
3. Whether plaintiff is entitled for redemption of mortgage?
4. Whether suit of the Plaintiff is maintainable in view of O.A. No.130/2003 before D.R.T. at Hyderabad?
5. Whether this court has jurisdiction to try the suit?
6. Whether defendant proves that without satisfying the award passed by DRT, Hyderabad, the plaintiff is not entitled for redemption of mortgage?
7. Whether plaintiff is entitled for relief sought for?
8. What decree or order?10 OS No.15867/2005
Additional issues framed on
06.2.2017
1) Whether the entire dues of the defendant's bank has been settled as per the letter dtd.
08.09.2010?
2) Whether the Plaintiff is entitled to take back the mortgage debt of Rs.2,00,000/- deposited by her to the court?
6. In support of plaintiff's case, the SPA Holder of the plaintiff is examined as P.W.1 and got marked 10 documents as Exs.P.1 to P.10. No evidence is adduced on behalf of the defendant.
7. Heard the arguments.
8. For the reasons stated in the subsequent paragraphs, I answer above issues as follows:-
ISSUE No.1 :- Does not arise for
consideration
ISSUE No.2 :- Does not arise for
11 OS No.15867/2005
consideration
ISSUE No.3 :- In the affirmative
ISSUE No.4 :- Does not arise for
consideration
ISSUE No.5 :- In the affirmative
ISSUE No.6 :- Does not arise for
consideration
ISSUE No.7 :- Partly in the
affirmative
Addl.ISSUE No.1:- In the affirmative Addl.ISSUE No.2:- In the affirmative ISSUE No.8 :- As per final order for the following:-
REASONS
9. Issue No.3 & Addl.Issue Nos.1 & 2:- In this suit, the plaintiff who is examined as PW.1 through her Special Power of Attorney Holder has reiterated the plaint averments and got marked the documents as per Ex.P.1 to P.10. It is admitted fact that, the suit schedule property was mortgaged as collateral security to the Defendant Bank for the loan transaction of 12 OS No.15867/2005 Doctor Biscuits Pvt. Ltd. Accordingly, simple Mortgage Deed was executed between the erstwhile owner of the suit schedule property and the Defendant on the other hand. Thereafter, the mortgage deed was executed for Rs.2.00 Lakhs and there was no stipulation for the said mortgage. The said mortgage has been reflected in the Encumbrance Certificates. It is further stated that, the plaintiff has entered into a Possessory Mortgage on 27.09.2002 with the LRs. Of the owner of the suit property, i.e, Smt.Venkatalakshmamma. Thereafter, the LRs. Of the said Smt.Venkatalakshmamma executed a General Power of Attorney and a Joint Development Agreement was executed between the plaintiff on the one hand and the owners of the property on the other and the plaintiff acquired 50 % right, title and interest over the 13 OS No.15867/2005 suit property, in terms of the said Joint Development Agreement. Thereafter, the owners of the said property refused to execute the Deed of Conveyance in favor of the plaintiff and then the plaintiff has filed a suit against the owners of the property in OS No.15757/2003, which came to be compromised. Thereafter, the said compromise decree was registered on
05.p8.2003 in the office of the Sub Registrar, Gandhinagar, Bengaluru. Then, the plaintiff approached the BBMP for transfer and registration of the Katha into her name and accordingly, the Katha stands transferred to her name. The plaintiff had been paying the tax in relation to the suit property. It is further stated that, the plaintiff was the bonafide purchaser of the suit schedule property and she was not aware of the existing mortgage of the suit 14 OS No.15867/2005 property in favour of the Defendant Bank. Therefore, she is entitled to seek redemption of the existing mortgage in favour of the defendant bank. She is ready and willing to pay the mortgage money of Rs.2.00 lakhs . As such the suit came to be filed.
10. The Defendant filed the detailed written-statement. It is noticed from the documents marked at Ex.P.1 to P.10, that, the contention of the plaintiff has been verified with the said documents, there is no dispute with regard to the acquisition of the property by the plaintiff. The plaintiff has brought to the notice of this court the letter dtd. 8.09.2010, by producing the same before the court. The said letter was issued by the Defendant Bank, Hyderabad Branch, about the settlement of the dues to the Bank by the Doctor Biscuits Pvt. Ltd. 15 OS No.15867/2005 So, it is noticed that, the Bank has endorsed in the said Letter that, the entire dues of M/s. Doctor Biscuits were settled by way of compromise and the Bank had received Rs.57.00 Lakhs on 18.01.2010 onwards full and final settlement against the due of M/s. Doctor Biscuits and Bank has delivered the documents pertaining to the mortgaged properties to one Smt.G.Swaroopa Rani. Further, it is stated that, as the dues to the Bank are settled, the liability of M/s. Doctor Biscuits Pvt. Ltd. was discharged and the Bank has relinquished the right over the mortgaged properties. In view of this letter, the plaintiff has contended that, M/s.Doctor Biscuits Pvt. Ltd., has settled the dues to the Defendant Bank and as such, there is no dues existing to be paid to the Bank by M/s. Doctor Biscuits Pvt. Ltd., It is also admitted that, the suit schedule 16 OS No.15867/2005 property was offered as collateral security to the loan of M/s. Doctor Biscuits Pvt. Ltd. and simple mortgage deed was executed. Accordingly, the plaintiff has entered into the shoes of the erstwhile owner of the suit schedule property and even deposited Rs.2,00,000/- I the court, which was offered to the defendant Bank. So, I am of the opinion that, the entire dues of the Defendant Bank has been settled as per their letter stated above.
11. It is also seen that, the Defendant bank has not cross examined PW.1 nor adduced its evidence. Hence, the Additional Issue No.1 has to be answered in favor of the Plaintiff, holding that, the entire dues of the Defendant Bank has been settled as per the Letter dtd. 08.09.2010. Consequently, the Plaintiff is entitled to take back the mortgage debt deposited in the court, 17 OS No.15867/2005 since the entire dues to the Bank has been settled as per the compromise, between them. Hence, Additional Issue No.2 is also to be answered in favour of the plaintiff, holding that, the plaintiff is entitled to take back the mortgage debt of Rs.2,00,000/-. Further, in view of the settlement of the dues by the Defendant Bank , the plaintiff is certainly entitled for redemption of the mortgage in respect of the suit schedule property. As such, I have to answer the Issue No.3 in the Affirmative. Accordingly, I answer Issue No.3, in the affirmative, Addition Issue No.1 & 2 also in the affirmative.
12. Issue Nos.1, 2, 4 & 6:- In view of the settlement of dues by the Defendant Bank and as per the Letter dtd. 08.09.2010, the defendant bank has discharged the liability and the Bank has relinquished the right over the mortgaged 18 OS No.15867/2005 property. Hence, the Plaintiff is entitled for the reliefs sought for in the suit.
13. With regard to the issue Nos. 1 and 2 there is not dispute by the defendant Bank with regard to the acquisition of 50% of title over the suit schedule property and that she is the bonafide purchaser of suit schedule property. Hence, issue Nos.1 and 2 also do not survive for consideration. Further, in view of the settlement of the dues, the issue Nos.4 and 6 are also do not survive for consideration, because as the issue No.6 which is framed, to the effect that, the plaintiff is entitled for the relief without satisfying the award passed by the DRT. Since, the award amount has been settled as per said letter, the plaintiff is entitled for redemption of mortgage. Therefore, the issue Nos.4 and 6 also do not survive for consideration.
19 OS No.15867/2005
14. Issue No.5:- It is contended that, this suit is not for recovery of money which has to be is to be filed before the Debt Recovery Tribunal. But, the suit being one for redemption of mortgage is filed within the jurisdiction of this court, which has got jurisdiction to try the same. Since, the mortgage debt is settled and the suit is for redemption of mortgage, the present suit is maintainable before this court, which is having jurisdiction to try the suit. Accordingly, I answer Issue No.5 in the affirmative.
15. Issue No.7:- For the reasons stated above, it is clear that, the plaintiff is entitled for the suit relief only in respect of redemption of mortgage but not by accepting the mortgage debt of Rs.2,00,000/-, and other relief's have to be granted. So far as the relief of Permanent Injunction is concerned, the plaintiff does not 20 OS No.15867/2005 now press for the said relief, as the said debt which has been cleared. Accordingly, I answer Issue No.7 partly in the affirmative and partly in the negative.
16. Issue No.8:- In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is partly decreed.
The Plaintiff is entitled for the redemption of the Mortgage in respect of the suit schedule property.
Consequently, the defendant Bank is directed to register the Deed of Discharge before the jurisdictional 21 OS No.15867/2005 Sub Registrar, in respect of the suit schedule property.
The Office is directed to refund the amount of Rs.2,00,000/- to the plaintiff, deposited vide RO No.084055 dtd.16.03.2005, to the Plaintiff, on proper identification.
Under the circumstances, there is no order as to costs.
Draw the decree accordingly.
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(Dictated to the Stenographer, directly on computer, transcript thereof, is corrected and then pronounced by me in the open court on this the 18th day of September, 2017)
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(G.S.SANGRESHI) XXVI Addl. City Civil Judge, Mayo Hall, Bangaluru.22 OS No.15867/2005
SCHEDULE All the piece and parcel of the residential immovable property bearing Municipal No.71/2, New 185/72, New No.72, measuring East to West -
(43.4 + 18.7 1/2)/2 feet, North to South 51 feet, situated at Kumbarpet Main Road, Bengaluru City, 26th Division bounded as follows :
East by : House of K. V. Munishamppa West by : Property bearing No. 71/1 North by : Property of Dulal Papaiah South by : Kumbarpet Main Road 23 OS No.15867/2005 ANNEXURE
1. List of witnesses examined for the plaintiff/s:
P.W.1 Sri. Syed Abu Tahir, - SPA
Holder
2. List of witnesses examined for defendant/s: NIL
3. List of documents exhibited for the plaintiff/s:
Ex.P.1 General Power of Attorney Ex.P.2 Certified copy of the registered simple Mortgage Deed Ex.P.3 & 4 2 Encumbrance certificates Ex.P.5 Certified copy of the possessory mortgage deed Ex.P.6 Certified copy of the of Gift Deed Ex.P.7 Khata certificate Ex.P.8 Tax paid receipt Ex.P.9 Certified copy of the order in OA No.130/2003 Ex.P.10 Recovery certificate in OA No.130/2003
4. List of documents exhibited for defendant/s:
NIL (G.S.SANGRESHI) XXVI Addl. City Civil Judge, Mayo Hall, Bangaluru.24 OS No.15867/2005