Delhi District Court
Neerj Aggarwal vs Santosh on 1 April, 2026
DLST010001772009
IN THE COURT OF SH. ARUL VARMA,
DISTRICT JUDGE-02, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
CS DJ. 8461/2016
Filing No. 37753/2009
CNR No. DLST010001772009
In the matter of
Sh Neeraj Aggarwal
S/o. Sh B.K Gupta
R/o. B-52, Vishkarma Colony
Lal Kuan, New Delhi-110044
......Plaintiff
VERSUS
Smt Santosh
W/o. Late Sh Mohan Lal
R/o. D-505, 2nd floor,
Pul Prahaladpur
New Delhi-110041 .......Defendant
Date of Institution : 02.06.2009
Date of reserving the judgment : 13.03.2026
Date of Pronouncement : 01.04.2026
Decision Suit Decreed
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Neeraj Aggarwal Vs Santosh
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Arul by Arul Varma
Date:
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JUDGMENT/ORDER
Index to the Judgment
I. BRIEF FACTS/CASE OF THE PLAINTIFF..................................................3
II. WRITTEN STATEMENT OF DEFENDANT...............................................5
III. ISSUES FRAMED........................................................................................ 6
IV. EVIDENCE LED BY PLAINTIFF...............................................................7
V. EVIDENCE LED BY DEFENDANT...........................................................11
VI. ARGUMENTS OF COUNSELS FOR THE PARTIES..............................13
VII. ISSUE WISE ANALYSIS & FINDINGS THERETO...............................16
i. Issue no 1: Whether the plaintiff is entitled for the relief of mandatory
injunction as prayed for?.......................................................................... 16
ii. Issue no 2: Whether the plaintiff is entitled for the relief of permanent
injunction as prayed for?.......................................................................... 16
iii. Issue no 3: Whether the plaintiff is entitled for the just closure of the
mortgage?................................................................................................. 24
iv. Issue no 1A: Whether the plaintiff is entitled for decree of possession
in his favour in respect to the suit premises?............................................24
VIII. RELIEF.....................................................................................................27
Digitally signed
CS DJ 208461/2016
Neeraj Aggarwal Vs Santosh
Page. 2 of 28 Arul by Arul Varma
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I. BRIEF FACTS/CASE OF THE PLAINTIFF
1. The facts as asseverated by the Plaintiff are hereby succinctly
recapitulated:
2. It was asserted that the Plaintiff and Defendant, Smt. Santosh,
maintained a long-standing acquaintance. In June 2009, the
Defendant and her son, Manish Kumar, requested the plaintiff
for a 45-day loan of Rs 15,00,000/-. While initially hesitant,
the Plaintiff agreed after the Defendant offered the original
title deeds to her property bearing no D-505, 2nd Floor, Pul
Prahaladpur, New Delhi as security.
3. It was alleged that 19.06.2009, the parties executed a
Mortgage Deed/Loan Agreement. Consequently, the Plaintiff
disbursed the loan, and the Defendant surrendered the original
property documents. The repayment was mutually set for
completion by 11.10.2009.
4. It was further alleged that on 31.07.2009, the Defendant's son
issued a cheque for the full amount to reclaim the title deeds.
The Plaintiff retained the documents pending clearance;
however, the cheque was dishonored twice upon presentation.
5. It was brought to the fore that to evade liability, the Defendant
filed a suit no 672/2009 for permanent injunction, alleging
she had surrendered the documents under "undue influence."
During those proceedings, the Plaintiff made a statement
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before the Court to not dispossess the defendant without due
process of law. It was alleged that the Plaintiff has since got to
know that the Defendant is actively attempting to alienate the
suit property to third parties, therefore the present suit has
been filed to protect his legitimate legal interests. It was
alleged that in view of the default made by the defendant in
making the payment of the loan amount to the plaintiff, the
right of the defendant to redeem the mortgage is liable to be
foreclosed. Hence, being aggrieved, the present suit was filed
by the plaintiff with the following prayers:
1. That a preliminary decree be passed in favour of plaintiff and an
account be taken of what was due to the plaintiff.
2. That a decree be passed in favour of plaintiff and against the
defendant that the defendant be absolutely debarred of her rights
to redeem the Mortgaged property bearing no D-505, 2 nd floor,
Pul Pehladpur, New Delhi-110041, measuring 55 sq yads
comprising in khasra no 361 situated in Pul Pehladpur, New
Delhi
3. That a decree of possession be passed in favour of the plaintiff
and against the defendant in respect of the mortgage property
bearing no D-505, 2nd floor, Pul Pehladpur, New Delhi-110041,
measuring 55 sq yads comprising in khasra no 361 situated in
Pul Pehladpur, New Delhi, whereby directing the defendant to
hande over the physical vacant and peaceful possession of the
premises to the plaintiff as specifically mentioned in red colour
in site plan Annexed as Annexure-A.
4. That a decree of mandatory injunction may kindly be passed in
favour of plaintiff and against the defendant thereby restraining
the defendant and his agent, attorney, authorized representative,
legal heirs etc. from transferring, alienating, entering into any
agreement, parting with possession and also creating third party
right of any nature in the property in question.
5. That a decree of permanent injunction may kindly be passed in
favour of the plaintiff and against the defendant thereby
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Neeraj Aggarwal Vs Santosh
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restraining the defendant and his agent attorney, authorized
representative, legal heirs etc. from transferring, alienating,
entering into any agreement, parting with possession and also
creating third party right of any nature in the property in
question.
II. WRITTEN STATEMENT OF DEFENDANT
6. In the Written Statement filed on behalf of the Defendant, all
allegations leveled in the plaint were categorically denied.
The Defendant submitted that the present suit is
fundamentally non-maintainable and is liable to be dismissed
in limine. It was also contended that the defendant herein is
the lawful and absolute owner in the possession of the suit
property by virtue of the title documents in her name and no
other person except she herself, has the right, title or interest
over the said property.
7. It was also submitted that the plaintiff herein is a property
dealer dealing with properties in near by area and that he, in
order to grab the suit property, is unncessarily causing
hindrance and disturbance to the peaceful possession, use and
occupation of the defendant at the suit premises. It was
further submitted that the plaintiff took advantage of the
simplicity and innocence of the defendant and the defendant
was impressed by the plaintiff and she could not refuse to
hand over the title documents of the suit property to the
plaintiff. It was averred that the defendant also gave the
plaintiff three blank cheques of her son and three blank
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Neeraj Aggarwal Vs Santosh Digitally
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Arul Arul Varma
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cheques pertaining to her own account. It was submitted that
the plaintiff took five blank signed papers from the defendant
on the pretext that he will execute the receipts of earnest
money of her property. However, the plaintiff later on refused
to return the title deeds as well as the six cheques in question,
in order to grab the suit premises of the defendant. It was
submitted that the the defendant did not take any loan nor
executed and signed any documents as alleged by the
plaintiff.
8. It was lastly contended that the alleged mortgage/loan
agreement dated 19.06.2009 is not a registered document nor
is it property stamped and therefore cannot be enforced in
law. Thus, it was submitted that the suit as filed by the
plaintiff ought to be dismissed.
III. ISSUES FRAMED
9. Vide order dated 28.10.2014 following issues were framed:-
"1. Whether the plaintiff is entitled for the relief of
mandatory injunction as prayed for ?
2. Whether the plaintiff is entitled for the relief of
permanent injunction as prayed for?
3. Whether the plaintiff is entitled for the just closure of
mortgage?
4. Relief."
10.During the course of trial, an application under Order XIV
Rule 5 CPC was filed on behalf of plaintiff for framing an
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additional issues, which was allowed vide order dated
15.04.2024 and the following additional issue was framed:
(a) Issue 1A: Whether the plaintiff is entitled for decree of
possession in his favour in respect to the suit premises?
OPP
IV. EVIDENCE LED BY PLAINTIFF
11.In the proceeding only four witnesses were examined by
plaintiff, succinct testimonies whereof are as follows:
12.PW-1 Neeraj Aggarwal: He tendered his evidence by way of
affidavit as PW1/A. He relied upon following documents:
(a) Site plan of the suit property as Ex PW1/1
(b) Mortgage deed/Loan Agreement executed between the parties
on 19.06.2009 as Ex PW1/2
(c) Written statement filed by the defendant as Ex PW1/3.
13. PW-1 deposed in his evidence by way of affidavit that the
defendant along with her son Sh Manish Kumar approached
him in the month of June, 2009 for taking a loan of Rs
15,00,000/- for a period of 45 days. He further deposed that
defendant told him that she is the absolute owner of the
property bearing no D-505, 2nd floor, Pul Pehladpur, New
Delhi-110041, measuring 55 sq yads comprising in khasra no
361 situated in Pul Pehladpur, New Delhi, and that she is
ready to hand over the original documents thereof as a
security and to execute a mortgage deed/loan agreement in
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favour of him and accordingly mortgage deed/loan agreement
was executed on 19.06.2009.
14.PW-1 also deposed that after execution of Mortgage /Loan
Agreement between the plaintiff and the defendant,
documents pertaining to the said property were handed over
to him, pursuant thereto the defendant and her son were
extended loan amount of Rs 15,00,000 - It was also deposed
that as per the mortgage /loan agreement, the loan was to be
returned on or before 11.09.2009 as it was mutually agreed
that the said loan would be returned within two months.
15.It was also deposed that on 31.07.2009, in order to return the
loan amount, the defendant along with her son approached the
plaintiff and wanted to finish off the loan with him and
therefore defendant handed over a cheque amounting to Rs
15,00,000/- signed by her son namely Manish Kumar, but as a
matter of precaution, the plaintiff told them that he would
hold the document till the realization of the cheque amount.
16.PW-1 further deposed that the said cheque was twice returned
unpaid and the defendant kept telling the plaintiff that the
same would be honoured as there are some delay in the
payment that the defendant was expecting. PW-1 also stated
that the defendant with ulterior motives and malefic intention,
filed a false and frivolous case seeking permanent injunction
on the ground that the defendant is an old woman and she was
so impressed and mesmerised by the plaintiff that she handed
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over the original title deed of her property to plaintiff. He was
cross examined by Ld Counsel for defendants.
17. PW-2 Mrs Sangeeta Aggarwal- She tendered her evidence by
way of affidavit as PW2/A. She relied upon following
documents:
(a) Mortgage deed/Loan Agreement executed between the parties
on 19.06.2009 as Ex PW2/1
18. She deposed in the evidence by way of affidavit that the defendant
and her son were given the loan amount in her presence and that
they even handed over their original property papers on the said
date when the mortgage deed was being executed between the
plaintiff and the defendant. Witness further deposed that Mr
Manish (son of defendant) and defendant herein has duped Mr
Neeraj Aggaral and did not return the said loan amount and that
the original papers are still in possession of plaintiff. She was
cross-examined by the Ld Counsel for defendant.
19. PW-3 Upander Kumar: He tendered his evidence by way of
affidavit as PW3/A. He relied upon following documents:
(a) Mortgage deed/Loan Agreement executed between the parties
on 19.06.2009 as Ex PW3/1
20. He further relied upon other documents pertaining to the property
which are already exhibited as EX PW1/2 to 12. PW-3 deposed in
her evidence by way of affidavit that he knows the plaintiff Neeraj
Aggarwal as PW-3 was the regular at the shop of the plaintiff and
there only he had met Sh Manish Kumar, son of defendant, as he
was taking loan from the plaintiff time to time for business
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purposes. He also deposed that in the month of June 2009, Smt
Santosh along with her son Manish Kumar approached the
plaintiff for taking the loan of Rs 15,00,000/- for a period of 45
days. He also deposed that he was present at the time, when such
demand was made by the defendant and the plaintiff was reluctant
to give such a huge amount as a loan to defendant. He furtehr
deposed that he had even advised the plaintiff not to give such a
heavy loan to the defendant, but defendant had informed the
plaintiff that she is the absolute owner of the property bearing no
D-505, 2nd floor, Pul Prahaldpur, New Delhi, and that the
defendant was ready to hand over the original document of the
same as a security and to execute a Mortgage Deed/Loan
Agreement in favour of plaintiff. This witness was cross-examined
by the Ld Counsel for defendant at length.
21. PW-4 Mr Rana Singh Chauhan: He tendered his evidence by
way of affidavit as PW4/A. He relied upon the documents i.e.
the copy of mortgage deed as already Ex PW1/2. He deposed
in the evidence by way of affidavit that the defendant and her son
were given the loan amount in her presence and that they even
handed over their original property papers on the said date when
the mortgage deed was being executed between the plaintiff and
the defendant. Witness further deposed that Mr Manish (son of
defendant) and defendant herein has duped Mr Neeraj Aggaral and
did not return the said loan amount and that the original papers are
still in possession of plaintiff. She was cross-examined by the Ld
Counsel for defendant.
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V. EVIDENCE LED BY DEFENDANT
22.In the proceeding only one witness was examined by
defendant, succinct testimony whereof is as follows:
23.DW-1 Smt Santosh: She tendered her evidence by way of
affidavit as Ex. DW1/A. She relied upon following
documents:
(a) Original visiting card of the plaintiff as Ex DW1/1
(b) Copy of death certificate of Ms Rajkumari exhibited as Mark
DW1/2
(c) Certified copy of the order and decree as Ex DW1/3
(d) Copy of judgment and decree of the Court of the then Ld MM,
Patiala House Courts as Mark DW1/4
(e) Copy of order dated 31.10.2013 of the then SCJ, South East
District, Saket Courts as Mark DW1/5 (colly)
(f) Certified copy of the Order dated 11.08.2014 as Ex DW1/6
(g) Certified copy of order dated 08.04.2013 as Ex DW1/7
(h) Copy of legal notice dated 18.01.2010 as Mark DW1/8
(i) Certified copy of legal notice dated 03.10.2009 as Mark
DW1/9.
(j) Original newspaper "Nai Dooniya" dated 27.03.2010 as Ex
DW1/10 (inadvertently mentioned as DW1/12 in affidavit in
evidence)
24. She deposed in her evidence by way of affidavit that she
came in contact of the plaintiff in the year 2005 as the
plaintiff has been operating the lotteries (committees) with the
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residents of the locality and that the defendant became the
member of the said lottery operated by the plaintiff. It was
deposed that during the said acquaintance and visiting terms
at the house of defendant, the plaintiff took advantage of the
simplicity and innocence of defendant and that in that
process, the plaintiff even managed to get the sets of papers
of the suit property from defendant by offering that he can
sell her said house and the plaintiff also assured that he has
the contacts with big guns of the area.
25.It was also deposed by DW-1 that she was mesmerized by the
plaintiff and that she could not refuse to hand over the
documents of the suit property to the plaintiff. She further
deposed that she gave the plaintiff three blank cheques from
the account of her son and three blank cheques from her
account. It was stated by DW-1 that plaintiff also took 5 blank
singed papers from her on the pretext that he will execute the
receipts of earnest money to the prospective buyers of her
said property. She deposed that the above cheques were given
to plaintiff for using them for making the payment of 6
installments of her committee and the documents of the house
for showing her title, interest on the said house to the buyers.
was cross examined by Ld Counsel for plaintiff at length.
26. DW-2 Smt Alka Singh: She tendered her evidence by way of
affidavit as Ex. DW2/A. She relied upon the documents
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already exhibited as DW1/1 to Ex DW1/10 (colly). She was
cross examined by Ld Counsel for plaintiff.
VI. ARGUMENTS OF COUNSELS FOR THE PARTIES
27. Ld Counsel for plaintiff had contended that the plaintiff has
proved the execution of the Mortgage Deed/Loan Agreement
dated 19.06.2009 as Ex PW1/2 to Ex PW1/12. It was
submitted that the signatures thereon have been admitted by
the defendant and moreover no steps were taken by the
defendant to get the above-mentioned Mortgage Deed/Loan
Agreement cancelled in the Court of law. Ld Counsel for
plaintiff had further contended that defence of the defendant
to the fact that the signatures of the defendant were obtained
to blank papers does not stand supported by contemporaneous
civil or criminal action. In this regard, Ld Counsel placed
reliance on Samu Devi Vs Kuar Basant Narain Singh 2021
SCC OnLine Jhar 753. Ld Counsel had contended that since
the Mortgage deed/loan agreement is notarized, a
presumption arises regarding its execution. It was further
contended that there is no requirement of the mortgage deed
being registered in terms of Section 58 (f) and 59 of the
Transfer of Property Act. She further placed reliance on
Maruti Suzuki India ltd. Vs Delhi Auto General Finance (P)
Ltd., 2018 SCC OnLine Del 8922 to substantiate this
contention.
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28. It was contended by Ld Counsel for plaintiff that since the
Mortgage Deed/Loan Agreement has been proved to be
executed as per law, the plaintiff has enforceable rights
arising out of the same. It was further contended by Ld
Counsel for plaintiff that in terms of Section 67 of the
Transfer of Property Act, the mortgagee /plaintiff has right to
seek fore-closure or sale when the mortgager fails to pay
mortgage money in accordance with the terms of Mortgage
Deed/ Loan Agreement. Ld Counsel placed reliance on
Ahilyabai Vs Shantabai (2001) 10 SCC 583 to contend that
upon grant of a decree of foreclosure u/s 67 of the Transfer of
Property Act, the plaintiff is entitled to the possession of suit
property as a consequential relief.
29. Per contra, Ld Counsel for defendant had submitted that
Mortgage Deed /Loan Agreement was required to be proved
in terms of Section 68 to 71 of the Indian Evidence Act, and it
was necessary to call the attesting witnesses to prove the
execution of the said documents, which was not so done by
the plaintiff in the present matter. Ld Counsel further placed
reliance on certain inconsistencies in the stance of the
plaintiff. It was contended that as per Ex DW1/ 4 i.e.
judgment dated 14.02.2012 passed by Ld SCJ-Cum-
Metropolitan Magistrate, Patiala House Courts, the plaintiff
has stated that he readily agreed, and thereafter provided loan
to the son of defendant. However, as per para 4 of the plaint,
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the plaintiff had expressed his reluctance to give loan to
defendant and her son.
30.It was further contended that in paragraph 2 of DW1/4, the
plaintiff stated that the son of the defendant had issued post
dated cheque bearing no 616670 dated 31.07.2009 for Rs
15,00,000/-. However, in paragraph no 6 of the plaint, the
plaintiff contended that on 31.07.2009, in order to return the
loan amount, the defendant and her son handed over a cheque
amounting to Rs 15,00,000/-, signed by the son of the
defendant. Thus, Ld Counsel for defendant contended that
there is discrepancy as to whether a post dated cheque was
issued on 31.07.2009.
31. It was brought to the fore that the defendant herein had
preferred a suit bearing no 672/2009, against the plaintiff
herein whereby the plaintiff herein was restrained from
dispossessing the defendant herein from the suit property or
from creating any 3rd party interest /right in the suit property
without following the due process of law.
32. It was also submitted that when PW-1 was cross-examined
on 01.06.2024, he had submitted that part of the amount
which he paid to the defendant, was reflected in the ITR of
the plaintiff, and the plaintiff had stated that he could produce
the ITR, however, no such ITR was produced. Thus, it was
contended that plaintiff has failed to produce any evidence to
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establish that he has given an amount of Rs 15,00,000/- in
cash to defendant.
VII. ISSUE WISE ANALYSIS & FINDINGS THERETO
i. Issue no 1: Whether the plaintiff is entitled for the relief of
mandatory injunction as prayed for?
ii. Issue no 2: Whether the plaintiff is entitled for the relief of
permanent injunction as prayed for?
33. The above two issues are being dealt with collectively.
34. In order to ascertain whether any enforceable right acrued in
favour of plaintiff vide the Mortgage Deed / Loan Agreement
dated 19.06.2009, it would be imperative to establish whether
the said document was duly executed as per law. The plaintiff
exhibited Mortgage Deed / Loan Agreement dated
19.06.2009 as Ex PW1/2 to Ex PW1/12. The plaintiff had
contended that the said agreement bears the signature of the
defendant Smt. Santosh. The signatures of the defendant Smt
Santosh upon the aforesaid documents, have been admitted by
her son DW-2 Sh Manish Kumar in his cross-examination
dated 11.12.2024, wherein he averred as thus:
"It is correct that documents Ex PW1/2 to Ex PW1/12
bear signatures of my mother at points A."
35. During the course of arguments, Ld Counsel for plaintiff had
contended that the signatures of the defendant also appeared
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on the same non judicial stamp paper forming part of the
same documents. The defendant had argued that her
signatures were taken on blank papers, however, no
contemporaneous civil or criminal action was pursued by the
defendant in this regard. No FIR was registered by the
defendant. Furthermore, the defendant was aware of the
existence of the above-mentioned Mortgage Deed / Loan
Agreement. However, she took no steps for filing a suit for
cancellation of the said documents. It is not a case where the
defendant is illiterate lady, or has no knowledge of legal
proceedings inasmuch as she had instituted a suit for
injunction qua the plaintiff herein, and could have very well
sought a relief for cancellation, which she chose not to do so.
DW-2 also in his cross-examination dated 11.12.2024 averred
as thus:
"It is correct that I or my mother have not got documents
cancelled till date from any court of law."
36. On the other hand, the defendant has acknowledged issuance
of cheque in question, for the payment of liability owed
towards the plaintiff. What is significant to note that
signatures on the Mortgage Deed / Loan Agreement have
been admitted by the defendant herein, and since the
Mortgage Deed / Loan Agreement is notarized document,
there is a presumption of genuineness qua the same. As far as
proof of execution of Mortgage Deed / Loan Agreement is
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concerned, there is also no requirement of examining the
attesting witnesses in terms of Section 68 to 71 of Indian
Evidence Act inasmuch as there is no specific denial by the
defendant qua its execution. The case would have been
different if the defendant had denied her signatures thereon,
and in that eventuality, the plaintiff would have to examine
the attesting witnesses to prove the execution of the
Mortgage Deed / Loan Agreement.
37. As far as the registration of the Mortgage Deed / Loan
Agreement is concerned, that is also not the mandate of law.
In this context, recourse can be had to Section 58 (f) and
Section 59 of the Transfer of Property Act:
"58."Mortgage", "mortgagor", "mortgagee",
"mortgage-money" and "mortgage-deed" defined-
(f) Mortgage by deposit of title-deeds.--Where a
person in any of the following towns, namely, the
towns of Calcutta, Madras, and Bombay, and in any
other town which the State Government concerned
may, by notification in the Official Gazette, specify
in this behalf, delivers to a creditor or his agent
documents of title to immoveable property, with
intent to create a security thereon, the transaction is
called a mortgage by deposit of title-deeds."
Section 59: Mortgage when to be by
assurance- Where the principal money secured is
one hundred rupees or upwards, a mortgage 1[other
than a mortgage by deposit of title-deeds], can be
effected only by a registered instrument signed by
the mortgagor and attested by at least two
witnesses.
Where the principal money secured is less than one
hundred rupees, a mortgage may be effected either
by 2[a registered instrument] signed and attested as
aforesaid, or (except in the case of a simple
mortgage) by delivery of the property.
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38. It is pertinent to note that Section 58 (f) of Tranfer of Property
Act applies to the territory of Delhi. In this context, recourse
can be had to Maruti Suzuki (supra) wherein the Hon'ble
Court held as thus:
"8. It appears that the Trial Court committed an error while
examining Section 58(f) of the TPA. The Defendant has pointed
out that Section 58(f) of the TPA has been made applicable to
Delhi. Mr. Ganju relies upon the extracts placed at pages 176
and 177 of the appeal paper book which show that this
provision has been notified in the territory of Delhi and New
Delhi. On the last date of hearing, it was submitted that this
extract was from `Mulla on Transfer of Property‟, however
today it is clarified that this extract is from AIR Commentaries
on The TPA 6th (2001) Edition Vol.2.
9. Irrespective of the same, the Court has called for the official
Gazette of India Publication, which shows that vide notification
dated 13th November, 1962, the Central Government has
extended the application of Section 58(f) of the TPA to the
territories of Delhi and New Delhi. The notification has come
into the effect from 1 st December, 1962. The extract of the
said notification is set out herein below:
"G.S.R. 1551.- In pursuance of sub-section (f) of
section 58 of the Transfer of Property Act, 1882
(4 of 1882), the Central Government hereby
specifies the town of Delhi and New Delhi in the
Union territory of Delhi as towns in which the
provisions of the said subsection apply. 2. This
notification shall come into force with effect
from the 1st December, 1962."
10. Both counsels however agree that this notification or the
extract from 2018:DHC:2820 RFA 851/2015 Page 5 of 7 the
AIR Commentaries was not brought to the notice of the Trial
Court when the impugned judgment was passed. A perusal of
the Bare Act which is published by `Universals' on the TPA
shows that it does not mention that the said provision has been
notified for the territory of Delhi. Since the judgment of the
Trial court is primarily passed on the assumption that Section
58(f) of the TPA was not notified for the territory of Delhi and
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New Delhi, there is a fundamental flaw in the judgment. The
notification which has now been brought to the notice of the
Court makes it adequately clear that Section 58(f) applies to
Delhi."
39. Thus, there was no requirement of mandatory registration of
aforesaid document. Moreover, in Grasim Industries Limited
Vs Agarwal Steel (2010) 1 SCC 83 it was held that when a
person signs a document, there arises a presumption that the
person hs properly understood the contents of the documents
and then only has affixed his or her signatures unless contrary
is proved. In the said case, it was held as thus:
"In our opinion, when a person signs a document,
there is a presumption, unless there is proof of force
or fraud, that he has read the document properly and
understood it and only then he has affixed his
signatures thereon, otherwise no signature on a
document can ever be accepted. In particular,
businessmen, being careful people (since their money
is involved) would have ordinarily read and
understood a document before signing it. Hence the
presumption would be even stronger in their case.
There is no allegation of force or fraud in this case.
Hence it is difficult to accept the contention of the
respondent while admitting that the document
Ex.D-8 bears his signatures that it was signed under some mistake. We cannot agree with the view of the High Court on this question. On this ground alone, we allow this appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for expeditious disposal in accordance with law."
40. It is trite law that once the execution of a document and signatures thereon are admitted, the burden shifts on the defendant to establish that some fraud or coercion was CS DJ 208461/2016 Page. 20 of 28 Digitally Neeraj Aggarwal Vs Santosh signed by Arul Arul Varma Date:
Varma 2026.04.01 17:39:53 +0530 exercised upon the defendant to execute the same or to endorse her signatures thereon. during the course of arguments, Ld Counsel for plaintiff had placed reliance on Samu Devi (supra) to contend that burden of proof lies on the defendant to establish that her signatures were obtained by way of forcce or fraud. The defendant has been unable to do so in the present case. In Samu Devi (supra) it was held as thus:
"13. In order to fully appreciate on whom the burden of proof lies, it will be desirable to set out Section 101, 102 and 103 of the Evidence Act which reads as under:
"S.101 Burden of Proof-- Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 102 On whom burden of proof lies-- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
S.103 Burden of proof as to particular fact--- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
14. Section 101 attempts to define burden of proof and it attempts to say on which party the burden of proof lies whereas Section 102 puts it in negative terms. The main principle governing the burden of proof is that the party who makes a legal claim must prove the operative legal facts for that claim, i.e. the facts that according to law are originally sufficient reasons for the claim. In theory, the term means two kinds of burden : the burden of production of evidence and the CS DJ 208461/2016 Page. 21 of 28 Neeraj Aggarwal Vs Santosh Arul Digitally signed by Arul Varma Date: 2026.04.01 Varma 17:39:56 +0530 burden of persuasion which is an obligation that remains on a single party for the duration of court proceedings. The burden of persuasion is different from the evidential burden or burden of production of evidence which is an obligation which may shift between the parties over the course of the hearing or trial. It is in this context that the Hon'ble Apex Court in Raghavamma case held that burden of proof lies upon the persons, as to prove a fact and it never shifts but the onus of proof shifts. It has been held in Lakshmana v. Venkateswarlu, AIR1949 PC 278 that initially burden of proving a prima facie case in his favour is cast on the plaintiffs; when he gives such evidence as will support a prima facie case, the onus shifts to the defendants to adduce rebutting the evidence to meet the case made out by the plaintiffs. As the case continues to develop, the onus may shift back again to the plaintiffs.
15. In view of the fact that plaintiff had discharged the initial burden to prove the agreement the onus shifted on the defendants to controvert the genuineness of the agreement of sale. Against this background fact, I do not find any illegality in the observation of the trial court that burden of proof was on the defendant to prove the ingenuineness of their signature. I find merit in the submission advanced on behalf of the respondents that Ganga Sao, one of the signatories and defendant no. 1, in his own evidence, as discussed above, has not denied having signed over the document. It has been stated by him that he was forced to sign over the document. Therefore, there was no occasion or requirement for the plaintiffs to get it further examined by any expert. On the contrary, it has been admitted by defendant in his evidence that his signature was obtained by coercion but he had not lodged any complaint or report in this regard. Pleading is no evidence and when agreement had been brought on record and proved, mere taking shifting defence of coercion in getting the signature and in the same breath denying it in WS by the Defendant was not sufficient, and it was incumbent on their part to lead evidence to support their specific defence. Having failed to do so, they failed to discharge the onus on their part to dispute the genuineness of the agreement of sale and proof that it was obtained either by coercion or that agreement did not bear their signature."
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41. The above makes it explicit that Mortgage Deed / Loan Agreement was duly executed by defendant herein. At this juncture, it would also be apt to understand the ramifications of the execution of the above deed, as spelt out in the deed itself.
" 2. "That in consideration of the sum of Rs 15,00,000/- (Rupees Fifteen lakh only) by the said SECOND PARTY by way of loan of the said FIRST PARTY, the receipt whereof the said FIRST PARTY hereby acknowledges on the terms and conditions mentioned in this agreement, the said FIRST PARTY has loan/ mortgage by way of simple loan/mortage with possession of that property mentioned above and transferred and conveyed the interest in the said property unto the said SECOND PARTY to hold the said property as security for the repayment of said sum of Rs 15,00,000/- (Rupees Fifteen lakh only) which interest payable at the rate of 0.0% per months from the date of this agreement until repayment or realisation, and has agreed with the Second party that in the event of the non-payment of the sum accruing due under this agreement or remaining due from the First party to them."
42. The recital in the Mortgage Deed / Loan Agreement makes it amply clear that the plaintiff had given loan of Rs 15,00,000/- to the defendant, and the defendant had transferred the conveyed interest in the suit property to the plaintiff by handing over title deeds, and the plaintiff was to hold the suit property as a security for repayment of Rs 15,00,000/-.
43. The execution of the Mortgage Deed / Loan Agreement was also accompanied by delivery of original title deeds to plaintiff. Thus, the execution of Mortgage Deed / Loan CS DJ 208461/2016 Page. 23 of 28 Neeraj Aggarwal Vs Santosh Arul Digitally signed by Arul Varma Varma Date: 2026.04.01 17:40:02 +0530 Agreement has accured enforceable rights in favour of the plaintiff which continues to exist till date as alleged loan amount has not been repaid, nor has the loan agreement been cancelled in the court of law. Therefore, it is imperative that since the defendant continue to remain in possession of suit property, and is in position to alienate the suit property or to create any third-party right/ interest, she be restrained from doing so. Thus, it becomes necessary to allow the relief of mandatory as well as permanent injunction in favour of plaintiff to restrain the defendant from creating any third- party interest or otherwise delaying in property in question adverse to the interest of plaintiff. Accordingly, issue no 1 and 2 are hereby decided in favour of plaintiff and against the defendant.
iii. Issue no 3: Whether the plaintiff is entitled for the just closure of the mortgage?
iv. Issue no 1A: Whether the plaintiff is entitled for decree of possession in his favour in respect to the suit premises?
44. The above two issues are being dealt with collectively.
45. In order to adjudicate these issues, it would be apposite to refer to Section 67 of the Transfer of Property Act:
"67. Right to foreclosure or sale.--In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage-money has become 3 [due] to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court [a decree] that the mortgagor shall CS DJ 208461/2016 Page. 24 of 28 Neeraj Aggarwal Vs Santosh Digitally signed Arul by Arul Varma Date:
Varma 2026.04.01 17:40:08 +0530 be absolutely debarred of his right to redeem the property, or [a decree] that the property be sold. A suit to obtain [a decree] that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.
Nothing in this section shall be deemed-- 1 [(a) to authorise any mortgagee other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or]
(b) to authorise a mortgagor who holds the mortgagee's rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or
(c) to authorise the mortgagee of a railway, canal or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or
(d) to authorise a person interested in part only of the mortgage-money to-institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.
46. Thus, in terms of Section 67 of the Transfer of Property Act, the Mortgagee /plaintiff herein has right to seek fore-closure or sale when the Mortgager/ defendant fails to pay mortgage money in accordance with the terms of Mortgage Deed/Loan Agreement 19.06.2009.This proposition also finds support in Ahilyabai (supra), wherein the right of the mortgagee to fore- close the mortgagor and to recover the mortgage amount has been specifically spelt out. The relevant extract thereof is reproduced hereunder:
"5. In this view of the matter, in our view, it is not necessary to consider the provisions of Section 14 or any other provision of the Limitation Act. It is also not CS DJ 208461/2016 Page. 25 of 28 Neeraj Aggarwal Vs Santosh Digitally signed Arul by Arul Varma Date:
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necessary to consider the contention based on the facts that the mortgage deed specifically provides that the mortgagee shall continue to be in possession as such till the amount is repaid. In case the mortgagee needed the amount and demanded the same and the mortgagor failed to pay the same, the mortgagee had the right to foreclose the mortgage and to recover the same. No other contention was raised before the High Court or the appellate court. Therefore, there is no question of dealing with the same or keeping the question open."
47. The mortgage money had to be returned/repaid by the defendant on or before 11.10.2009, and the same has not so admittedly been repaid and therefore the plaintiff had the right to foreclose the mortgage money. In this regard, it would be apt to reproduce the following extracts of Mortgage Deed/Loan Agreement 19.06.2009.
"3. That the First Party shall be personally responsible to repay the said sum of on or before 11.10.2009 without fail and in case the realisation from the property mentioned above falls short of the amount due to the Second Party for the principal and interest accruing due under this agreement the latter shall also as well as from their other movable and/or immovable property belonging to them."
48. Thus, this court concurs with the submissions of Ld Counsel for plaintiff that upon grant of foreclosure u/s 67 of Transfer of Property Act, the plaintiff is entitled to possession of suit property as a consequential relief.
49. The inconsistencies /discrepancies pointed out by Ld Counsel for defendant fall in the realm of minor inconsistencies, and cannot be given weightage. The defendant has not been able CS DJ 208461/2016 Page. 26 of 28 Neeraj Aggarwal Vs Santosh Digitally signed Arul byDate:Arul Varma Varma 2026.04.01 17:40:14 +0530 to establish her defence that the Mortgage Deed/Loan Agreement 19.06.2009 was not executed or that Rs 15,00,000/- was repaid by her to the plaintiff or that the Mortgage Deed/Loan Agreement 19.06.2009 was executed by her under duress, fraud etc., In view of above, issues no 3 and 1A are decided in favour plaintiff, and against defendant.
VIII. RELIEF.
50. Ergo, in view of the above in extenso discussion, the suit stands decreed in favour of the plaintiff with the following reliefs:
(a) The plaintiff is entitled to a decree in his favour and against defendant debarring defendant's right to redeem the Mortgaged property bearing no D-505, 2nd floor, Pul Pehladpur, New Delhi-110041, measuring 55 sq yads comprising in khasra no 361 situated in Pul Pehladpur, New Delhi,
(b) The plaintiff is entitled to a decree in his favour and against defendant in respect of the mortgage property bearing no D-505, 2nd floor, Pul Pehladpur, New Delhi-110041, measuring 55 sq yads comprising in khasra no 361 situated in Pul Pehladpur, New Delhi, with direction to the defendant to hand over the physical vacant and peaceful possession of the CS DJ 208461/2016 Page. 27 of 28 Neeraj Aggarwal Vs Santosh Arul Digitally signed by Arul Varma Date: 2026.04.01 Varma 17:40:20 +0530 premises to the plaintiff as specifically mentioned in Annexure-A.
(c) The plaintiff is entitled to a decree of mandatory injunction in his favour and against the defendant, restraining defendant and her agent, attorney, authorized representative, legal heirs etc. from transferring, alienating, entering into any agreement, parting with possession and also creating third party right of any nature in the property in question.
(d) The plaintiff is entitled to a decree of permanent injunction in his favour and against the defendant, restraining the defendant and her agent attorney, authorized representative, legal heirs etc. from transferring, alienating, entering into any agreement, parting with possession and also creating third party right of any nature in the property in question.
51. Decree sheet be prepared accordingly.
52. No order as to costs.
53. File be consigned to record room after necessary compliance.
Digitally
signed by Arul
Pronounced in the open Court Arul Varma
on this 01st April, 2026 Date:
Varma 2026.04.01
17:40:24
+0530
(ARUL VARMA)
DISTRICT JUDGE-02/SOUTH,
SAKET COURTS/NEW DELHI
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