Delhi District Court
Brahmdev Construction (P) Ltd vs Sh.Jaswinder Singh on 2 November, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No. 203/91.
01. Brahmdev Construction (P) Ltd.,
2784, Patel Motor Market,
Lothian Road, Kashmere Gate,
Delhi.
02. Sjtcraper Builders, Pvt.Ltd.
12, Krishna Motor Market,
Lothian Road, Kashmere Gate,
Delhi.
03. Sh.Vishwakarma Propertis P.Ltd.,
114, Daryaganj,
New Delhi.
04. Mohan Builders Pvt.Ltd.
1, Rajnarain Road,
Civil Lines,
Delhi-54.
05. Archaic Constructions (P) Ltd.,
15/5, Old Chandrawal,
Civil Lines,
Delhi.
06. Srijan Builders (P) Ltd.,
114, Daryaganj,
New Delhi.
07. Somya Builders (P) Ltd.,
2785, Patel Motor Market,
Lothian Road,
Kashmere Gate,
Delhi.
08. Shrestha Builders, & Promotors (P) Ltd.
1, Raj Narain Road,
Civil Lines,
Delhi-110054.
Suit No. 203/91 page 1 of page 5
09. Eequent Builders (P) Ltd.
15/5, Old Chandrawal,
Civil Lines,
Delhi-110054. .........Plaintiffs
Vs.
01. Sh.Jaswinder Singh
10007, Nai Wali Gali,
Nawab Ganj, Delhi-06.
02. Sh.Dhani Ram
S/o.Sh.Ram Chand(Deceased)
R/o.11, Rajpur Road,
Delhi.
02A. Smt.Viasya Devi
W/o.Late Sh.Dhani Ram
02B. Sh.Prem Kumar
S/o.Late Sh.Prem Kumar
Both R/o.11, Rajpur Road,
Delhi.
03. Smt.Shashi Peter,
W/o.Late Sh.Palson Peter,
11, Rajpur Road, Delhi.
04. Sh.Ashish Peter
S/o.Sh. Late Sh.Palson Peter
R/o.11, Rajpur Road,Delhi.
05. Ms.Akankasha Peter,
D/o.Late Sh.Panson Peter,
R/o.11, Rajpur Road,Delhi.
06. Sh.D.D.Khanna
S/o.Sh.P.K.Khanna
R/o.11, Rajpur Road,Delhi.
07. Smt.Sneh Prabha
W/o.Sh.Sat Prakash
D/o.Sh.Trilok Raj Chopra,
11, Rajpur Road, Delhi. ........Defendants
Suit No. 203/91 page 2 of page 5
ORDER
02.11.2011
01. By way of present order I shall decide preliminary issue which was modified with the consent of parties by Hon'ble High Court in C.R.P. No.76/01, to the following effect:-
"Whether the mortgage executed by Dr.Raghunath dated 17.08.1957 was a simple mortgage as alleged by the defendant no.6 or otherwise as alleged by plaintiff ? If so, would the suit in the present form be not maintainable ? OPD-6."
It is pertinent to mention over here that vide order dated 11.09.2008, Hon'ble High Court, in abovesaid C.R.P.No.76/01, granted liberty to petitioner/defendant herein, to make application before the trial court for treating abovesaid issue as preliminary issue and accordingly an application dated 21.02.2009 was filed on behalf of defendant no.6 for treating the abovesaid issue as preliminary issue and after hearing both the parties, vide order dated 05.03.2011 the above mentioned issue was treated as preliminary issue.
I have heard ld. counsel for plaintiff and defendant no.6 as well as perused the record.
Brief facts necessary for disposal of above said preliminary issue are that plaintiffs filed the present Mortgage suit for redemption of mortgage with possession and permanent injunction, on the averments that late Dr.Raghunath, S/o.R.P.Lala Mulkraj, R/o.9, Rajpur Road, Delhi was the owner of several properties including property no.11, Rajpur Road, Delhi and said Dr.Raghunath expired on 25.02.1972, leaving behind legal heirs. After the death of Dr.Raghunath, litigation ensued among two groups of legal heirs which continued for a number of years and the dispute was finally settled in 1984, when an agreement to divide the property was executed on 27.03.1984 and by virtue of the said agreement, the property no.9 and 11, Rajpur Road, Delhi fell to the share of plaintiffs who have jointly become absolute owners thereof. It is the case of the plaintiffs that late Dr.Raghunath had morgtaged a part of property no.11, Rajpur Road, Delhi, Suit No. 203/91 page 3 of page 5 with an area of 311 Sq.yds as shown in the plan annexed with the mortgage deed dated 17.08.1957, duly registered and the said mortgage was for a period of 4 years against an advance of Rs.10,750/- only made by the defendant to the said Dr.Raghunath. It was stipulated in the para no.2 of said mortgage deed that the interest on the mortgage money shall be equal to the rent arising out of the mortgage property and the two shall be adjusted with each other, therefore, no interest was payable on the mortgage money of Rs.10,750/- during the subsistence of mortgage. It is alleged that the plaintiffs approached the defendant a number of times after the agreement to divide property was executed with the request to accept the mortgage money i.e.Rs.10,750/- and hand over vacant possession of the mortgage property, but, she did not agree, hence, the present suit for a decree of redemption of mortgage with possession of the property bearing part of 11, Rajpur Road, Delhi and for a decree of permanent injunction restraining the defendants from transferring the suit property to anyone by sale, mortgage, lease or any other manner, was filed.
Defendant no.6 filed the amended written statement and took the various preliminary objections including that the suit is not maintainable because the mortgage dated 17.08.1957 executed between late Dr.Raghunath and late Smt.Veeran Wali, was a simple mortgage and no possession was handed over to the mortgagee by mortgagor as it is apparent from para no.3 of the mortgage deed which runs as under:-
"3. Vacant possession of the mortgaged property i.e.9 Seva Kunj (Part of No.11 Rajpur Road Delhi) shall be given to the mortgagee at the time of the registration of deed and if the said balance of Rs.1500/-, left with the mortgagee is not paid within one month as stipulated above the mortgagor shall have the right to recover the same through court of law and to evict the mortgagee from the premises and the mortgagee shall be responsible for all the expenses incurred by the mortgagor.
4. The period of this mortgage shall be four years."
The main contention of ld. counsel for defendant no.6 was that it is apparent from clause 3 of the mortgage deed that possession of the Suit No. 203/91 page 4 of page 5 property was not handed over to the mortgagee and therefore, without possession, only a simple mortgage was created by Dr.Raghunath and the present suit for redemption of mortgage with possession is not maintainable. On the other hand, ld. counsel for plaintiff argued that mortgage was with the possession and the mortgagor for bonafide need and to further develop his property mortgaged his property and therefore, the present suit is maintainable. Perusal of order dated 02.11.2000 shows that ld. counsel for plaintiffs submitted before Ld.predecessor of this court that due to typographical error in para number 7 of the amended plaint dated 12.09.1991, it has been mentioned that late Dr.Raghunath had mortgaged with possession a part of property no.11 and in original plaint word "with possession" was not there and no order was passed for amendment of this fact and on request of ld.counsel for plaintiffs, the word "with possession"
appearing in the first line of para no.7 of the amended plaint was struck off. The above submission of ld. counsel for plaintiff itself shows that it is not the case of the plaintiffs that Dr.Raghunath mortgaged the suit property with possession. Clause 3 of the Mortgage deed in question, also shows that possession of the mortgaged property was not delivered to the mortgagee at the time of execution thereof. Thus, the mortgage deed as relied upon by plaintiff is a simple mortgage i.e.without delivery of possession as balance of Rs.1,500/- was also left with the mortgagee. Therefore, I am of the considered opinion that as mortgage created by Dr.Raghunath vide mortgage deed dated 17.08.1957 was without delivering the possession, the present suit for redemption of mortgage with possession is not maintainable. Accordingly, this issue is decided in favour of defendant no.6 and against the plaintiffs.
In view of above findings on the preliminary issue, the suit of the plaintiffs for redemption of mortgage with possession and permanent injunction stands dismissed with no order as to cost. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court ( S.K.MALHOTRA ) on 02.11.2011. SCJ/RC/North)/DELHI Suit No. 203/91 page 5 of page 5