Delhi District Court
A. Selvaraj vs Yashoda Devi on 24 April, 2025
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
CS DJ ADJ 16369/16
CNR No. DLSW010018712016
IN THE MATTER OF:
SHRI A. SELVARAJ
S/O LATE R.MUGUMNAINAR
R/O A-5A/369, JANAKPURI,
NEW DELHI ..........PLAINTIFF
VERSUS
SMT. YASHODA DEVI
W/O SHRI RAM KUMAR GOYAL
R/O RZ-77-A/2, GROUND & FIRST FLOOR
GALI NO.3, MAIN SAGARPUR,
NEW DELHI-110046 ........DEFENDANT
Date of Institution : 28.08.2012
Date of arguments : 24.03.2025
Date of judgment : 24.04.2025
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CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 1 of 44
SHILPI
M JAIN
Digitally signed by
SHILPI M JAIN
Date: 2025.04.24
16:06:57 +0530
SUIT FOR SPECIFIC PERFORMANCE WITH POSSESSION,
DAMAGES AND FOR PERMANENT INJUNCTION
JUDGMENT
INDEX FACTUAL BACKGROUND .................3 ISSUES .................6 EVIDENCE GIVEN BY PARTIES .................7 SUBMISSIONS OF THE PARTIES ................12 ISSUEWISE ANALYSIS & FINDINGS ................14
- First theory : Case setup by plaintiff in plaint ................20
- Second theory : Defence setup by defendant inWS ................20 Law on Mortgage ................27
- Once a Mortgage Always a Mortgage ................27 Principles and Implications ................28
- Right of Redemption ................28
- Right of Foreclosure ................30 Maxim 'Allegans contraria non est audiendus' ................38 CONCLUSION .................44
1. Present suit for recovery of suit for specific performance with possession, damages and for permanent injunction filed by the plaintiff against defendant qua second and third floor alongwith roof / terrace right of the property bearing no. RZ-77-A/2, Gali No. 3, Main Sagar Pur, New Delhi-110046 admeasuring 65 sq. yards.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 2 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:13 +0530 FACTUAL BACKGROUND
2. Defendant represented herself as absolute and exclusive owner of property bearing no. RZ-77-A/2, Gali No. 3, Main Sagar Pur, New Delhi-110046 admeasuring 65 sq. yards (hereinafter referred as 'said property'). It is further averred that, defendant was intending to sell entire second and third floor alongwith roof / terrace right of the said property to the plaintiff (hereinafter referred as 'suit property') to which plaintiff was agreed and agreement to sell dated 22.02.2010 was entered for Rs.30 lacs which was duly paid. It is further averred that, apart from agreement to sell, other relevant documents were also executed in favour of plaintiff in the presence of husband of defendant who also signed as attesting witness.
3. It is further averred that, at the time of execution of above documents, defendant retained possession of second and third floor and assured to handover peaceful vacant possession to the plaintiff on or before 31.12.2011. It is further averred that, as per terms and condition of agreement, defendant was supposed to obtain sale permission from concerned authority for sale of suit property but no such permission was obtained despite repeated request of plaintiff and infact defendant failed to give physical possession to the plaintiff as per his commitment, hence, liable to pay Rs. 50,000/- per month towards user application charges till the date of physical possession.
4. It is further averred that, since defendant failed to adhere the terms and condition of the agreement to sell and also defaulted in ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 3 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:10 +0530 payment of use and occupation charges, handed over cheque no 012325 dated 25.05.2012 for Rs. 2 lacs, drawn on Federal Bank, Dwarka, New Delhi, towards part payment of user occupation charges to the plaintiff but said cheque were also dishonored on presentation due to remark "Funds Insufficient" vide return memo dated 12.06.2012. It is further averred that, being compelled by the circumstances, plaintiff issued legal notice dated 21.07.2002 to the defendant, thereby calling upon him execute sale deed in favour of plaintiff and to pay use and occupation charges, as due on date but defendant failed to comply the same despite receipt. Hence, present suit is filed seeking following relief:-
"a). pass a Decree of specific performance with possession in favour of the plaintiff and against the defendant thereby directing the defendant to execute the sale deed in favour of the plaintiff in respect of suit property and also to hand over peaceful vacant possession of the suit property i.e. Entire second and third floor with roof/terrace rights, forming part of aforesaid property bearing RZ-77-A/2,Gali No.3, Main Sagarpur, New Delhi-110046, ad-measuring 65 sq.yds. as shown red in the site plan, to the plaintiff;
b). pass a Decree for recovery of Rs.4,50,000/- (Rupees four lacs fifty thousand only) in favour of the paintiff and against the defendant i.e. at the rate of Rs.15,000/- per month w.e.f. 22.2.2010 upto 21.8.2012
(c). Award future and pendente lite damages, mesne profits @Rs.15,000/- (Rupees fifteen thousand only) from filing of the suit till vacation of the suit property;
d). pass a Decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, her representatives, agents, attorneys etc. from selling, transferring, creating any third party interest and/or parting with the possession of the suit property i.e. Entire second and third floor with roof/terrace rights, forming part of aforesaid property bearing RZ-77-A/2, Gali No.3, Main Sagarpur, New ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 4 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:07 +0530 Delhi- 110046, ad-mesuring 65 sq.yds., as shown in red colour in the site plan,
(e) award costs of the suit in favour of the plaintiff and against the defendant."
5. Perusal record reveals that, summons were duly served upon defendant and WS filed.
6. In her WS, defendant setup following defence:
a) Defendant had mortgaged the property to the plaintiff for Rs.3 lacs to help her sons in their business and executed mortgaged agreement in favour of plaintiff;
b) Mortgage agreement dated 27.02.2010 was prepared by plaintiff in English language and represented/explained to defendant in vernacular language as if mortgage agreement wherein defendant had to return loan within six months alongwith interest @ 1% but, signatures of the defendant were taken at 20-22 pages;
c) Since, terms between the plaintiff and defendant were cordial and no document of title was given to plaintiff;
d) Period of loan was also mutually extended between the parties;
e) Defendant had never agreed to sell suit property for Rs.30 lacs and all documents i.e., agreement to sell, GPA, SPA, receipt dated 22.2.2010, are forged and fabricated.
f) In August 2010, the value of the property was around Rs.1.30 crore and at present, it is Rs.1.60 crore but plaintiff with fraudulent and dishonest intention wants to usurp and grab the suit property on the basis of fabricated documents and suit may be dismissed.
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7. It is further averred that, defendant has already refunded entire loan of Rs. 3 lacs alongwith interest. It is further averred that, in the month of May 2012, defendant paid balance sum of Rs. 2 lacs vide cheque no. 012325 dated 25.05.2012 but unfortunately, same was dishonoured due to insufficient fund and said amount of Rs. 2 lacs was paid in cash. It is further averred that, plaintiff with dishonest intention manipulated Rs.30 lacs instead of Rs.3 lacs in mortgage deed, with sole intention to grab the property. In her para-wise reply, defendant denied facts given in the plaint and re-affirmed above facts.
8. Perusal of record reveals that, replication was duly filed on behalf of plaintiff wherein contents of the plaint are reaffirmed as true and correct.
9. After completion of pleadings vide order dated 04.08.2015, Hon'ble High Court of Delhi framed following issues:-
1. Whether the plaintiff has suppressed the material facts, if so its effect? OPD
2. Whether the plaintiff has not paid proper court fee? OPD
3. Whether the suit is without any cause of action? OPD
4. Whether the agreement to sell dated 22nd February, 2010 executed between the parties is valid and enforceable, if so its effect? OPD
5. Whether the plaintiff was ready and willing to perform his part of contract? OPP
6. Whether the plaintiff is entitled to a decree of specific performance?
OPP ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 6 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:55 +0530
7. Whether the plaintiff is entitled to a money decree, as prayed for?
OPP
8. Whether the plaintiff is entitled to a decree of possession? OPP
9. Whether the plaintiff is entitled to a decree of permanent injunction?OPP
10. Relief.
EVIDENCE BY THE PARTIES
10. In support of its case, plaintiff examined six witnesses. PW- 1 Mr. A. Selvraj, S/o Late Mr. R. Mugumnainar tendered his evidence by way of affidavit Ex.PW 1/A and relied upon the following documents:
Sl. No. Particulars of Documents Exhibits/Mark 1. Site plan Ex.PW1/1
2. The original Agreement to Sell dated Already Ex.P1 22.02.2010
3. The original GPA dated 22.02.2010 Already Ex.P2
4. The Original SPA dated 22.02.2010 Already Ex.P3
5. The original affidavit dated 22.02.2010 Already Ex.P4
6. The original cheque no. 012325 dated Already Ex.P5 25.05.2012 for a sum of Rs. 2,00,000/-
7. The original payment receipt dated Ex.PW1/2 22.02.2010
8. Original cheque returning memo Ex.PW1/3
9. Copy of notice dated 21.07.2012 sent by the Ex.PW1/4 plaintiff 10. Postal receipt Ex.PW1/5 11. AD Card Ex.PW1/6
12. Copy of reply dated 22.10.2013, dated Ex.PW1/7.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 7 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:59 +0530 09.09.2013 PW1 is cross-examined by Ld. Counsel for defendant at length and discharged.
11. PW2 Mr. Bhanu S/o Late Mr. Shatrughan Prasad Sharma tendered is evidence by way of affidavit Ex. PW2/A. PW2 stated that, the documents already exhibit P-1, P-2, P-3 & Ex. PW1/2 were executed and signed in his presence which also bears his signatures at Point A and signature of the defendant at Point B, signature of plaintiff at point C and the signature of husband of defendant Mr. Ram Kumar Goyal at Point D. PW2 is cross-examined by Ld. Counsel for defendant at length and discharged.
12. PW3 Sh. K.K.Tyagi, Advocate (Notary Public) was summoned witness who brought the summoned record ie. register which is duly maintained by him during the course of his official functions. PW3 further stated that, , he was appointed as Notary Public and was working as such and used to operate from District Centre, Janakpuri. On 24.02.2010, original G.P.A which is already exhibited as Ex.P2 was produced before him by the parties who signed the same in his presence. PW3 further stated that, he had attested this document after putting his Seal and my signatures and that, his seal and signatures on the GPA Ex.P.2 are at Point X. PW3 had recorded the entry of having attested this document in my register at Entry No.581. The copy of his register containing said entry is Ex.PW.3/A and the entry no.581 is at Point A. PW3 further deposed that, on that, very day, parties had also produced ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 8 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:09 +0530 "Agreement to sell" (already exhibited as Ex.P.1); Special Power of Attorney (already exhibited as Ex.P.3); Receipt (already exhibited as Ex.PW.1/2); Affidavit (already exhibited as Ex.P.4). PW3 further stated that, the parties had signed these documents as well in his presence and he had attested all these documents by putting his seal and signatures thereon. His seal and signatures on all these documents are at Point X. It is further deposed by PW3 that, on 24.02.2010 itself, parties had produced one "Mortgage feed (copy of which is already exhibited as Ex.PW.1/D1) and parties had signed this document in his presence, he had attested this document by putting his seal and signatures thereon, which are at Point X. He had recorded an entry of having attested this document in my Register at Serial No.582, copy of which is Ex.PW.3/A and the relevant entry is at Point B. PW3 was cross-examined by Ld. Counsel for defendant and discharged.
13. PW4 Sh. Pramod Kumar, Senior Manager. Branch Head, Federal Bank, Dwarka Branch. He was a summoned witness and has brought the summoned record i.e. Statement of account of savings bank account no. 15450100008598 in the name of A. Selvaraj, for the period 03.03.2009 to 31.12.2013, copy of the statement of account is Ex.PW4/A. PW4 further stated that, the same is computer generated copy produced from the computer installed in their Branch, which is true as per their record. PW4 further stated that, the certificate under section 2(8)(b) read with section 2(a) of Bankers Book Evidence Act, is exhibited as Ex.PW.4/B, bearing signatures of Saving Section Officer at Point A on both the pages and that, of his at Point B. PW4 was cross- examined by Ld. Counsel for defendant and discharged.
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14. PW5 Sh. Anish Satish, Manager. Federal Bank, Connought Circus Branch, Delhi was a summoned witness who has brought the summoned record i.e. Statement of account of savings bank account no. 11050100174012 in the name of A.Selvaraj, for the period 01.01.2009 to 31.12.2013, copy of the statement of account is Ex.PW.5/A. PW5 further stated that, the same is computer generated copy produced from the computer installed in their Branch, which is true as per their record which bears his signatures at Point A on both the pages. PW5 was cross- examined by Ld. Counsel for defendant and discharged.
15. PW6 Sh.Santosh Kumar S/o Sh. Visheshwar Roy, Inspector of Income Tax, 14th Floor, Block F-2, Dr.S P Mukherjee Civic Centre, JLN Marg, New Delhi-110002 was a summoned witness who brought the summoned record i.e. ITR for the assessment years 2009-2010 to 2014-2015 in the name of A.Selva Raj. Copy of authorization letter in his favour is Ex.PW-6/A. Copy of ITRs for the assessment years 2009- 2010 to 2014-2015 in the name of A. Selva Raj are Ex.PW-6/B (Colly.). He further stated that, these are computer generated attested true copies which are true as per our records. PW6 was cross-examined by Ld. Counsel for defendant and discharged.
16. Thereafter, PE was closed and matter was fixed for DE.
17. To defend this case and to discharge her onus defendant examined herself only as DW1 and tendered her evidence by way of affidavit Ex.DW1/A. DW1 relied upon the following documents:
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 10 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:10 +0530 SL. PARTICULARS OF EXHIBITS/MARK NO. DOCUMENTS
1. Notice Dated 09.09.13 Ex.DW1/1 (already Ex.
PW1/D4)
2. Notice Dated 09.09.13 Ex.DW1/3 (already Ex.PW1/D5)
3. Three postal receipts Ex.DW1/3 (colly.)
4. Reply dated 14.09.2013 to Ex. DW1/4 (Colly) the notice dated 09.09.13 with its envelopes
5. Original notice dated Ex. DW1/5 (Colly) 19.10.2013 with its courier receipts
6. Unclaimed envelope with Ex. DW1/6 (Colly) courier receipt I
7. notice to plaintiff dated Already Ex.D1 09.09.13
8. Reply dated 22.10.2013 to Ex.DW1/8 the notice dated 09.09.2013 DW1 was cross-examined by Ld. Counsel for plaintiff at length and discharged.
18. Thereafter, DE also stands closed and matter was listed for final arguments.
19. Arguments heard. Record Perused.
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20. Ld. counsel for plaintiff submitted that, present suit may be decreed in favour of plaintiff as defendant failed to raise any substantial defence rather in her entire WS, defendant raised only two points, firstly, Agreement to sell, GPA, SPA and affidavit dated 22.02.2010 are forged and fabricated; Secondly, defendant had mortgaged suit property for Rs.3 lacs which is already refunded. But, no material placed on record in support of her contention rather during admission-denial, defendant duly admitted her signatures on original agreement to sell, GPA, SPA. Affidavit and original cheque i.e., Ex.P-1 to Ex.P-5. It is further submitted that, plaintiff has examined as much as 6 witnesses to prove the above documents which are duly proved. It is further submitted that, during cross-examination several questions/suggestion were put/given to the PWs which were infact in the favour of plaintiff, so appropriate inference may be drawn to that effect. It is further averred that, defendant failed to challenge above document, hence, decree may be passed as mere assertion does not suffice without any proof. It is further averred that, preponderance of probability lies in favour of plaintiff, hence, decree may be passed. Ld. counsel for plaintiff further relied on following judgments in support of his contentions:-
a) Tejram Vs. Patirambhau 1997 Legal Eagle SC 614
b) Nanjappan Vs. Ramasamy & Anr., 2015 Legal Eagle SC 238
c) Leeladhar (D) Through LRs Vs. Vijay Kuamr (D) Thr. LRs & Ors.
2019 Legal Eagle SC 1057 ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 12 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:09 +0530
d) Parswanath Saha Vs. Bandhana Modan (Das) & Anr. 2024 Legal Eagle SC 1130
e) S. Rangaraju Naidu Vs. S. Thiruvarakkarasu 1995 Legal Eagle SC 337
21. Per contra, Ld. counsel for defendant vehemently opposed the submission made by plaintiff. It is submitted that, defendant had only admitted her signatures on the impugned document not the contents. It is further submitted that, one side plaintiff is claiming ownership qua suit property for rent purpose and other side, seeking specific performance which is contradictory in nature and hence, cannot be relied upon. It is further averred that, in Ex.PW-1/2 it has been mentioned that, cash has been received prior to execution of receipt. Hence, it does not invite any confidence. Ld. counsel for defendant further relied upon the testimony of PW-2 being witness to the impugned document, wherein PW2 specifically deposed that, on 22.02.2010 sum of Rs.30 lacs was not paid by plaintiff to the defendant in his presence rather Rs.14 lacs was paid. It is further submitted that, as such there is no witness for Rs. 30 lacs and there is material contradiction in the deposition given on behalf of PW1 and PW-2 with respect to actual time of payment as PW-1 deposed that, payment was made on the same day while PW2 says that, it was not made on the same day. It is further submitted that, bare perusal of entry number as specified in GPA and mortgage reveals that, GPA was executed prior to mortgage deed while plaintiff argued that, mortgage deed was prepared prior to GPA. It is further submitted that, no action taken by plaintiff for cancellation of mortgage deed. It is further submitted that, PW1 was very intelligent but defendant duly ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 13 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:00 +0530 impeached his credentials during cross-examination. It is further submitted that, in the absence of any withdrawal proof or eye witness present suit cannot be decreed and maybe dismissed. Lastly It is further submitted that, present suit is also barred due to payment of deficient court fees. Hence, may be dismissed with heavy cost.
ANALYSIS AND FINDINGS ISSUE NO. 2: Whether the plaintiff has not paid proper court fee?
OPD
22. It is contended that, present suit was instituted before Hon'ble High Court of Delhi on 27.08.2012 when, The Court-fees (Delhi Amendment) Act, 2012 was in force. But, court fees was not paid as per enhanced value.
23. Careful perusal of plaint reveals that, plaintiff valued the present suit and paid court fees as follows:
"15. That the suit is purposes of court fees and valued for jurisdiction the for the relief of specific performance with possession at Rs.30,00,000/-for the relief of damages is at Rs.4,50,000/- and for the relief of permanent injunction, the suit is valued at Rs.130/- upon which the requisite court fees been affixed on the plaint. The plaintiff undertakes to pay the requisite court fees on the relief of pendentelite and future damages at the time of passing of the decree."
24. It is settled that court fees is to be paid as per the relief claim by the plaintiff. No doubt Court Fees (Delhi Amendment) Act, ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 14 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:12 +0530 2012 was in force while filing present suit, but during the pendency of present suit Hon'ble High Court of Delhi in the matter of Delhi High Court bar Association & ANR vs. Government of NCT and ANR 1 has struck down the Court Fees (Delhi Amendment) Act, 2012 by declaring as invalid and ultravirus to the Constitution. In fact, Hon'ble High Court of Delhi has also directed to refund the court fees excess paid by the litigants. Thus, in view thereof this court does not find any merit in the submissions made by the defendant. Hence, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3: Whether the suit is without any cause of action?
OPD
25. "Cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court2. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.
26. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.
1 WP(C) 4770/2012 2 Cooke v. Gill, 1873 LR 8 CP 107 ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 15 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:07 +0530
27. In A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem3, Hon'ble Supreme Court of India explained the meaning of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
28. In present matter, plaintiff pleaded following cause of action in the plaint:
"13. That the cause of action for filing the present suit firstly arose on 22.2.2010 when the parties entered into an agreement to sale and purchase and the plaintiff paid a sum of Rs.30 lace to the defendant and the defendant handed over symbolic possession of the suit property to the plaintiff. The cause of action also arose on various occasions when the plaintiff requested the defendant to perform her contractual obligations and hand peaceful vacant possession of the over suit property. The cause of action also arose when the defendant issued a cheque No.012325 dated 25.5.2012 for Rs.2 lacs to the plaintiff for use and occupation charges. The cause of action also arose 3 (1989) 2 SCC 163 ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 16 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:01 +0530 when the plaintiff issued legal notice dated 21.7.2012 to the defendant. The cause of action further arose in the first week of August, 2012 when the defendant and her husband extended threats to sell/transfer and/or part with the possession of suit property to some third person. The cause of action is continuing and subsisting one."
29. Onus of this issue is upon defendant but, neither any argument nor any material placed on record to contrary the cause of action as pleaded by plaintiff. Hence, considering facts and circumstances of this case, this court is of the opinion that, cause of action arises in favour of plaintiff. This issue is decided in favour of plaintiff accordingly.
ISSUE NO. 1: Whether the plaintiff has suppressed the material facts, if so its effect? OPD ISSUE NO. 4: Whether the agreement to sell dated 22nd February, 2010 executed between the parties is valid and enforceable, if so its effect? OPD
30. Both issues are interconnected. Hence, taken simultaneously.
31. During the course of submissions, it is submitted by both parties that, onus of issue no. 4 should be upon plaintiff but due to typographical error it has been wrongly placed upon the defendant.
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32. It is well settled law that, burden to proving facts raised upon the party which substantially asserts the affirmation of the issue. In the matter of Anil Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558 of Hon'ble Supreme Court of India held as follows :
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"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 exist.
When a person is bound to prove the existence of any fact, it is said that, the burden of proof lies on that, person."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that, the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
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15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence" indicate that, the relationship between the parties must be such that, one is bound to protect the interests of the other.
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19. There is another aspect of the matter which should be borne in mind. A distinction exists between ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 18 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:09 +0530 burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate 9 the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that, of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that, onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
33. It is the contention of defendant that, plaintiff has suppressed the material fact and filed present suit with dishonest intention to grab the suit property. It is submitted that, defendant never agreed to sell the suit property and infact never executed any agreement to sell, GPA, affidavit and receipt dated 22.02.2010. It is further submitted that, it was merely a loan transaction of Rs. 3 lacs for which mortgage deed was executed between the parties and infact said amount was duly refunded to the plaintiff.
34. On the other side, it is a contention of plaintiff that, plaintiff purchased suit property for Rs. 30 lacs via agreement to sell, GPA, affidavit and receipt dated 22.02.2010. It is further averred that, in terms to said agreement defendant was supposed to handover vacant and peaceful possession of the suit property on or before 31.12.2011 but since defendant defaulted in said condition and present suit is filed.
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35. Since, plaintiff asserts that, agreement to sell dated 22nd February, 2010 executed between the parties is valid and enforceable, onus is upon him. Hence, Onus of issue no.4 stands rectified and same is now upon the plaintiff.
36. This court has gone through the entire material placed on record. Present case is based upon two side of theories:
First theory : Case setup by plaintiff in plaint :
37. Defendant executed agreement to sell in favour of plaintiff qua the suit property for a total sale consideration of Rs. 30 lacs which was duly paid on the date of execution of agreement to sell but at that time only symbolic possession was given and defendant retained the possession of the suit property under the assurance that he would vacate the same on or before 31.12.2011 and would also pay Rs. 15,000/- per month as use and occupation charges till the handing over of the vacant possession. As per the case of the plaintiff, ATS, GPA, SPA, affidavit and receipt were executed at the time of said transaction but defendant failed to handover the vacant and peaceful possession of the suit property to the plaintiff as assured by him hence, present suit is filed.
Second theory : Defence setup by defendant in WS
38. The second theory put forward on behalf of the defendant wherein it is explicitly stated that there was no sale-purchase transaction between the parties rather, defendant took loan of Rs. 3 lacs and one ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 20 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:00 +0530 mortgage deed was executed. As per the defendant, plaintiff manipulated the mortgage documents wherein Rs. 3 lacs was mentioned as Rs. 30 lacs and signatures of defendant were taken on atleast 20-22 pages. It is further submitted that, loan amount of Rs. 3 lacs is already refunded to the plaintiff without any receipt.
39. Another twist to the both theories is given by the plaintiff wherein he acknowledged the execution of mortgage deed during cross examination but submitted that it was agreed between the parties that the said mortgage deed shall be registered but, since defendant failed to register the same, same was torn off and ATS, GPA, SPA, Affidavit and receipt were executed between the parties.
40. Thus, the crucial point to adjudicate before this court is - Whether any mortgage deed was actually executed between the parties? If affirmative, to what effect?
41. Record reveals that, not even the single whisper made about mortgage deed in the plaint or Evidence by way of affidavit as filed on behalf of plaintiff. However, during cross examination, PW1 specifically admitted execution of mortgage deed prior to execution of other documents. Relevant cross examination of PW1 w.r.t. Mortgage Deed is reproduced hereinbelow:
" It is correct that first of all mortgage deed was prepared. It is correct that photocopy of document (mortgage deed) bears my signatures at point. A and B and my photograph is at point X' and same is now exhibited as Ex.PW1/D1................................ For preparation of ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 21 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:11 +0530 document (Mortgage Deed) already exhibited as Ex. PW1/D1, I had accompanied Mrs. Yashoda Devi along with her husband, her younger son Mr. Gagan and Mr. Bhanu to District Centre, Janak Puri, New Delhi. I do not remember whether I had signed in notary register. It is correct that I have signed at point X on the attested photo copy of the Notary Public Delhi which is now exhibited as Ex. PW1/D2. At District Centre, Janak Puri, New Delhi, we remained for about 15-20 minutes with the Notary Public.
After that my friend Mr. Bhanu had gone through the contents of that document Ex. PW 1/D1 and thereafter, we had asked Mrs. Yashoda Devi for registration of this document but they did not agree, therefore, we had asked them to cancel this document. (Volunteered: the original of Ex. PW1/D1 was torn off there at District Centre, Janak Puri, New Delhi).
I had informed my counsel about cancellation of document Ex. PW 1/D1 and that original of the same was torned off, however, I am not aware whether these facts have been averred in my plaint. It is correct that no such averment in respect of document Ex. PW 1/D1 has been made in the plaint. It is wrong to -suggest that I have not paid a sum of Rs.30,00,000/- to Mrs. Yashoda Devi in respect of the suit property. It is wrong to suggest that I have mortgaged the suit property after making payment of Rs.3,00,000/- to Mrs. Yashoda Devi.................................
The non-judicial stamp paper on which document, copy of which is Ex. PW 1/D1 was prepared was purchased by someone on behalf of Mrs. Yashoda Devi. I cannot tell the name of the person who had purchased the same. (Volunteered :- it was purchased by Mrs. Yashoda Devi) ..............
It is correct that document Ex. P2 was notarised prior to notarisation of document Ex. PW 1/D1. I am not aware the educational qualification of Mrs. Yashoda Devi. It is wrong to suggest that signatures of Mrs. Yashoda Devi were ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 22 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:56 +0530 obtained on 20-25 blank papers at the time of execution of document Ex. PW 1/D1. (Volunteered: At that time, her husband and her younger son Mr. Gagan were present). I did not count the number of sheets on which Mrs. Yashoda Devi had signed on that day when document, copy of which is Ex. PW 1/D1 was prepared..............................
The agreement to sell was also entered in the register of notary public. The agreement to sell was prepared after about 25 minutes - one hour of execution of the mortgage deed. It is wrong to suggest that only mortgage deed was prepared on 22.02.2010 and was entered in the register of the notary public. It is wrong to suggest that the agreement to sell was not entered in the register of notary public..............................
It is wrong to suggest that I have paid a sum of Rs.3,00,000/- to Mrs. Yashoda Devi at the time of mortgage. It is wrong to suggest that I have fraudulently got Rs.30,00,000/- mentioned in Mortgage Deed Ex.PW1/D1. I do not remember whether copy of Ex.PW1/D1 was supplied to Mrs. Yashoda Devi. The mortgage was till 2011. (Volunteered: Suit property was to be vacated by 2011 and thereafter, documents were to be executed).
Question:- I put it to you that it is mentioned in the mortgage deed that if mortgaged money is not returned, the mortgaged money shall be deducted from the sale price, it means that the sale price was more than the mortgaged amount?
Ans: It was told to me that the mortgage amount was equal to the sale price of the suit property.
The mortgage deed and sale deed were executed on the same day i.e. 22.02.2010. (Volunteered: Money was also paid on the same day).
On 22.02.2010, the mortgage deed was executed and a sum of Rs. 13,00,000/- - Rs. 14,00,000/- were paid.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 23 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:00 +0530 It is wrong to suggest that while obtaining signatures on mortgage deed Ex.PW1/D1 on 22.02.2010, I fraudulently got obtained signatures of Mrs. Yashoda Devi for preparation of sale agreement, General Power of Attorney, Special Power of Attorney and affidavit. It is wrong to suggest that signatures of Mrs. Yashoda Devi were obtained with intention to grab property of Mrs. Yashoda Devi.
It is wrong to suggest that I have not taken any steps for cancellation of Mortgage Deed Ex.PW1/D1. We have served notice for filing the case. It is correct that no such notice is on record. I do not have copy of any such notice with me. I have not filed any case in the court for cancellation of the mortgage deed Ex.PW1/D1. (Volunteered: I have filed case for seeking possession of the suit property).
It is wrong to suggest that I have received a sum of Rs.3,00,000/- from Mrs. Yashoda Devi and therefore, I have not filed any case seeking cancellation of the mortgage deed Ex.PW1/D1. It is wrong to suggest that therefore, I have not taken any action against Mrs. Yashoda Devi for dishonour of cheque in the sum of Rs.2,00,000/-..................
Que: Can you tell the court how many copies in original of the mortgage deed Ex.PW1/D1 were prepared?
Ans: I do not remember............
It is incorrect to suggest that payment of Rs. 1,30,000/ vide cheque No. 002333 as mentioned in Ex. PW1/D3, was not made by me regarding the suit property to husband of the defendant. It is incorrect to suggest that no amount is due and outstanding in my favour to be paid by the defendants in terms of Ex. PW1/D1............."
(emphasis is mine) ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 24 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:55 +0530
42. What is interesting to note here that, execution of mortgage deed duly admitted by Plaintiff during cross examination but, still no original is placed on record. Plaintiff says it has been torn off being not registered by defendant while, defendant says it was duly executed and loan of Rs. 3,00,000/- was given which is already refunded. For the purpose of clarification, terms of Ex.PW1/D1 is reproduced here-in- below:
MORTGAGE AGREEMENT This Mortgage Agreement is made at Delhi, on this 22nd day of February, 2010, between SMT. YASHODA DEVI W/O SH. RAM KUMAR GOYAL R/O RZ-77-A/2, GALI NO. 3, MAIN SAGAR PUR, NEW DELHI-110046, (hereinafter called the FIRST PARTY).
AND MR. A. SELVARAJ S/O LATE MR. R. MUGUMNAINAR R/O A-5A/369, JANAK PURI, NEW DELHI, (hereinafter called the SECOND PARTY).
The expressions of the parties shall mean and include their legal heirs, successors, executors, administrators, assigns and nominees.
That the first party is/are the sole and absolute owners and in possession of BUILT-UP PROPERTY BEARING NO. RZ-77- A/2, WITH ROOF/TERRACE RIGHTS, BUILT ON LAND MEASURING 65 SQ. YDS., SITUATED AT GALI NO. 3, MAIN SAGAR PUR, NEW DELHI-110046, alongwith the freehold land underneath.
That the first party for her personal bonfide valid legal necessity and in the best interest or benefit of her family members, hence, she has agreed to mortgaged the Entire Second Floor and Entire Third Floor, with roof/terrace rights, having its area 65 sq. yds. on each floor, being part of the above mentioned property with the Second Party and the ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 25 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:01 +0530 Second party has also agreed to give the loan amount of Rs. 30,00,000/- (Rupees Thirty Lace Only) in cash, which amount the first party has received from the second party in full and final discharge and settlement prior to the execution of this Agreement against above mentioned property.
That the first party has taken the said loan amount on monthly interest of @ 1% from the second party for the period of 6 months with effect from 24.02.2010 and 31.08.2010 and in this respect the first party has signed the Agreement to Sell/General Power of Attorney, Will, Receipt etc. of the Entire Second Floor and Entire Third Floor with roof/terrace rights of the above mentioned property in favour of the second party and also has delivered the photostat copy of previous Documents relating to the said Property with the Second Party as a security of the said loan amount.
That in case the first party shall not pay the said amount, within specified period to the second party, then the second party will be fully authorised to recover of his loan amount after selling the said property out of total sale price, and also take the necessary legal action against the first party and in this respect, the first party, her legal heirs, successors etc. shall have no objection for that and not challenge the same at any time or in any circumstances in any court of law.
HENCE, to avoid any future litigation or disputes, the parties have furnished this Agreement in token of the said fact.
That both the parties will be binding upon all the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties have set their hands to this Mortgage Agreement, at Delhi, on the day, month and year first party above written.
(emphasis is mine) ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 26 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:02 +0530
43. At this juncture, before going ahead, it is imperative to discuss the law on mortgage.
LAW ON MORTGAGE:
44. A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being arc called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage -deed.4 Section 58 of the Act provides different types of Mortgage which includes Simple Mortgage, Mortgage by Conditional Sale, Usufructuary Mortgage, English Mortgage, Mortgage by deposit of title-deeds and Anomalous Mortgage.
45. Mortgagor despite having mortgaged the property might still deal with it in any way consistent with the rights of the mortgagee. He has an equitable right to redeem the property after the day fixed for payment has gone by but his right or equity of redemption is no longer strictly an equitable estate or interest although it is still in the nature of an equitable interest.5 .
ONCE A MORTGAGE ALWAYS A MORTGAGE 4 Section 58 of Transfer of Property Act, 1881 5 See Halsbury's Laws of England, 4th edition Volume 32 page 264 ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 27 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:06 +0530
46. "Once a mortgage always a mortgage" is a principle based on equity, justice and good conscience evolved for the first time in 1681 by Lord Nottingham6. The reference to that effect is available in "Law of 'Mortgage' by Dr. Rashbehary Ghose, 8th Edition at page 281, which reads as follows :
'In 1681 Lord Nottingham in the leading case of Harris v. Harris, (1681) 1 Vern 33 firmly laid down the principle: 'Once a mortgage, always a mortgage.' This is a doctrine to protect the mortgagor's right of redemption : It renders all agreements in a mortgage for forfeiture of the right to redeem and also encumbrances of or dealings with the property by the mortgagee as against a mortgagor coming to redeem. In 1902, the well known maxim, 'once a mortgage, always a mortgage' was supplemented by the words 'and nothing but a mortgage' added by Lord Davey in the leading case of Noakes v. Rice, 1902 AC 24 (HL) : 1900 3 All ER Rep 34, in which the maxim was explained to mean 'that a mortgage cannot be made irredeemable and a provision to that effect is void'. The maxim has been supplemented in the Indian context by the words 'and therefore always redeemable', added by Justice Sarkar of the Supreme Court in the case of Seth Ganga Dhar v. Shankarlal, (MANU/SC/0118/1958 : 1959 SCR 509 (513) : AIR 1958 SC
770).' PRINCIPLES AND IMPLICATIONS:
- RIGHT OF REDEMPTION:
47. The Transfer of Property Act protects mortgagors' right to redeem their property by repaying the loan, invalidating any clauses that obstruct this right or unfairly convert the mortgage into full ownership for the mortgagee. The right of the mortgagor, it is now well-settled to deal with the mortgaged property as well as the limitation to which it is 6 "Law of Mortgage" by Dr. Rashbehary Ghose, 8th Edition at page 281 ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 28 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:56 +0530 subject depends upon the nature of this ownership which is not absolute, but qualified by reason of the right of the mortgagee to recover his money out of the proceedings. The right to redeem the mortgagee is a very valuable right possessed by the mortgagor. Such a right to redeem the mortgage can be exercised before it is foreclosed or the estate is sold.
The equitable right of redemption is dependent on the mortgagor giving the mortgagee reasonable notice of his intention to redeem and on his fully performing his obligations under the mortgage.
48. Section 60 of Transfer of Property Act7 protects mortgagors' right to redeem their property by repaying the loan, invalidating any clauses that obstruct this right or unfairly convert the mortgage into full ownership for the mortgagee. It is based upon three principles i.e.:
Equity Of Redemption: This is the core concept that allows the mortgagor to redeem the property by repaying the loan. Any clause in the mortgage deed that goes against this right is considered invalid; 7 Section 60: Right of mortgagor to redeem.--At any time after the principal money has become 9 [due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage -
money, to require the mortgagee (a) to deliver 10 [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],
(b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by act of the parties or by 11[decree] of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property.--Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except 1 [only] where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgager.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 29 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:56 +0530 Clog On Redemption: Any term that serves as a bar to the right of redemption is a clog on redemption and is void. The Act makes sure that the right of redemption of the mortgagor is not defeated and cannot be waived off through any agreement;
Fair Treatment of Mortgagors: The Act ensures that mortgagors are not unfairly deprived of their properties. It stops mortgagees from taking advantage of the conditions of the agreement to turn a mortgage into a full ownership.
- RIGHT OF FORECLOSURE:
The right of foreclosure is a right available to a mortgagee to recover his outstanding money after the principal amount has become due. This right is available under Section 67 of the Transfer of Property Act, 18828. A suit to obtain a decree that a mortgagor will be absolutely debarred from exercising his right to redeem the mortgaged property is called a suit for foreclosure 9.
8 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 4 [a decree] that the mortgagor shall be absolutely debarred of his right to redeem the property, or 4 [a decree] that the property be sold. A suit to obtain 4 [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.
9 See procedure under Order XXXIV Rule 1 to 6 CPC ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 30 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:04 +0530 Conditions: The right to foreclosure can be exercised by mortgagee only when:
• The debt amount has become due for payment. • There are no contrary conditions in the mortgage deed as to the time fixed for repayment etc. • Mortgage money has become due but mortgagor has not got a decree of redemption of the mortgaged property. • Mortgage money has become due but mortgagor has not paid or deposited the amount.
49. However, this right to foreclose the mortgage property is not existent in all forms of mortgage. A simple mortgage, usufructuory mortgage, English mortgage, equitable mortgage doesn't find this right to foreclose. Therefore, in such mortgages, other remedies such as a suit for money decree or for sale of the property can be exercised. Section 67 is the counterpart of S. 60 of the Transfer of Property Act, 1882, therefore the right to foreclose only occurs after the debt becomes due.
The right of foreclosure is counter-part of right of redemption. Mortgagor gets a right of redeeming his security after payment of debt amount; similarly mortgagee has a right of foreclosure or sale in default of redemption by the mortgagor. Section 67 protects interest of a mortgagee who has advanced a loan in pursuance of some interest in a security and mortgagor has defaulted in payment. The right of foreclosure of mortgagee is co-extensive to right of redemption of mortgagor. The right of foreclosure gets diminished in cases where the mortgagor has deposited the mortgage money. Therefore only once the mortgagor has defaulted on the debt becoming due, can the mortgagee ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 31 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:02 +0530 exercise this right. This right is only available in cases of mortgage by conditional sale and certain kinds of anomalous mortgage. However, when mortgagor fails to redeem the property, the mortgagee does not become the owner of the property, he has to file a suit for recovery of the amount due.
50. Now coming to the facts of the case, Exhibit PW1/DI provides clause 'That in case the first party shall not pay the said amount, within specified period to the second party, then the second party will be fully authorised to recover of his loan amount after selling the said property out of total sale price, and also take the necessary legal action against the first party and in this respect, the first party, her legal heirs, successors etc. shall have no objection for that and not challenge the same at any time or in any circumstances in any court of law.' which is in nature of simple mortgage within the meaning of Section 58(b) of transfer of property act10.
51. But, present suit is neither for recovery nor as per procedure prescribed under Order XXXIV CPC rather, Exh. PW1/D1 concealed by plaintiff in his plaint. Thus, this court find force in the submission made by defendant that, person who makes false statement or conceals material fact or mislead the court- can not claim equitable relief.
10 (b) Simple mortgage.--Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 32 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:08 +0530
52. Reliance is made upon judgment passed by Hon'ble Supreme court of India in K.D. Sharma Vs. Steel Authority of India Ltd and Ors11, wherein it was held that:
'28. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".
29. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the Court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.' 11 (2008) 12 SCCC 481 ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 33 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:06 +0530
53. Further, bare perusal of above mortgage agreement (Ex. PW1/D1), it is clear that ATS, GPA, Will, receipt etc. were executed on the same day of execution of said mortgage deed. This fact can also be confirmed by the sequence of register entry number of stamp paper i.e. at the backside of stamp paper as well as entry no. in the Notary Public Register i.e. Ex. PW1/D2 which is duly admitted by PW1 as ' It is correct that I have signed at point X on the attested photo copy of the Notary Public Delhi which is now exhibited as Ex. PW1/D2. At District Centre, Janak Puri, New Delhi, we remained for about 15-20 minutes with the Notary Public.' Not only this PW1 found to have no knowledge about structure of property as described in ATS. Relevant cross examination of PW1 is reproduced herein below:
"I have visited the suit property number of times. Last time I had visited the suit property in the year 2012, but, I do not remember the date and month. I do not remember as to how many rooms are constructed on the second floor and third floor. Volunteered. I used to visit only ground floor for collecting the rent.
I have visited Yashoda Devi five-six times to collect rent, but she did not pay the same. When I visited the suit property, I found that Mrs. Yashoda and her husband and two sons were living there. At this stage I do not remember the position of latrine, bathroom and the staircase. Second floor and third floor of the suit property have their entrance from common stairs. It is wrong to suggest that the building has been constructed in such a way that independent/separate possession of the second floor and third floor of the suit property can not be given. I can not tell whether Mrs. Yashoda had shown me documents for 65 square yards area. Volunteered. Old documents were shown and since I can not read, I can no tell whether these ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 34 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:03 +0530 documents pertains to 65 sq. yards area. She had orally told me about 65 square yards area.
The sale deed was shown to me. Volunteered. The first paper which was prepared, copy of which was handed over to me. I have not accepted the same.
It is correct that the plaint does not mention about sale deed as well as the documents which I have deposed that were shown to me by Mrs. Yashoda Devi."
(emphasis in mine)
54. Moreover, as per plaintiff's own version possession of property was not given as defendant had to sought some permission. But, plaint is absolutely silent what was requisite permission was supposed to taken by defendant. Rather contrary to all submissions, during his testimony PW1 deposed as follows:
'I could not keep chain of documents of the suit property even though these were shown to me by Mrs. Yashoda Devi as she had told me that this is a joint property with her brother in law/DEVAR whose name I do not remember. She had assured that she would get the discrepancies removed and thereafter, would hand over the complete chain of documents of the suit property to me.' (emphasis in mine)
55. Thus, considering facts and circumstances of present case this court is of the opinion that there was no sale transaction between the parties, rather it was some loan arrangement only under which suit property was mortgaged with the defendant. In view thereof, agreement to sell dated 22 February 2010 can't be said to be valid and enforceable under the specific relief act. Hence, both issues decided in favour of defendant and against the plaintiff.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 35 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:03 +0530 ISSUE NO. 5: Whether the plaintiff was ready and willing to perform his part of contract? OPP ISSUE NO. 6: Whether the plaintiff is entitled to a decree of specific performance? OPP ISSUE NO. 8: Whether the plaintiff is entitled to a decree of possession? OPP ISSUE NO. 9: Whether the plaintiff is entitled to a decree of permanent injunction? OPP
56. Above issues are interlinked. Hence, taken simultaneously.
57. Readiness and willingness broadly refer to the capacity and preparedness of a party to a lis to perform his part of the contract. The aforesaid requirement is one of the essential ingredients under Section 16 of the Specific Relief Act, 196312. Readiness and willingness is a matter to be established from the overall conduct of the plaintiff and not a rhetoric of assertion. The compliance of readiness and willingness has to be in spirit and substance; and not in letter and form. To test whether a party has performed his obligations, one has to see the pith and substance of his plea. But, since this court has already opinioned that, there was no 12 16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person-- 2 [(a) who has obtained substituted performance of contract under section 20; or] (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) 3 [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.--For the purposes of clause (c),-- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 36 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:58 +0530 sales transaction between the parties. Hence, these issues need not to be gone into detail and decided against the plaintiff.
ISSUE NO. 7: Whether the plaintiff is entitled to a money decree, as prayed for?OPP
58. Plaintiff made following prayers for recovery:
'b) pass a Decree for recovery of Rs.4,50,000/- (Rupees four lacs fifty thousand only) in favour of the paintiff and against the defendant i.e. at the rate of Rs.15,000/- per month w.e.f. 22.2.2010 upto 21.8.2012
c) Award future and pendente lite damages, mesne profits @Rs.15,000/- (Rupees fifteen thousand only) from filing of the suit till vacation of the suit property;'
59. But, in present matter, plaintiff neither able to prove any landlord-tenant relationship nor any sales transaction. Thus, in view of the forgoing discussion, present issue is also decided against the plaintiff.
ISSUE NO. 10: Relief
60. Although, in Present proceedings, plaintiff failed to prove any sales transactions between the party rather guilty of suppressio veri; suggestio falsi, but, the fact that ATS, GPA, affidavit was the part and parcel of Exh PW1/D1 and defendant duly admitted her signature on all documents of plaintiff i.e. ATS, GPA, SPA, Affidavit, receipt and original cheque no. 012325 but denied its contents can't be ignored. Said documents were also exhibited as Ex.P1 to P5 before Hon'ble High Court of Delhi on 27.08.2013.
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 37 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:04 +0530
61. Defendant has raised three contentions. Firstly, mortgage deed was entered for Rs. 3 lacs only and same was manipulated for Rs. 30 lacs. Secondly, she has already refunded Rs. 3 lacs but, receipt could not be procured. Thirdly, no ATS, GPA, Will, Receipt were executed between the parties as already referred above.
62. But, this court does not find any merit in the plea taken by defendant being barred by Doctrine of Election i.e. choosing between two inconsistent or alternative rights.
Maxim 'Allegans contraria non est audiendus':
63. Principle Underlying the Doctrine of Election is Allegans contraria non est audiendus which means he is not to be heard who alleges things contradictory to each other. In other words, a man cannot approbate and reprobate or blow hot and cold. It means that a man taking a benefit under an instrument must also bear the burden. Under any instrument if two rights are conferred on a person in a manner one right is in lieu of the other, he is bound to elect the proposal on whole or reject on whole. In other words, he can elect only one of them. A person cannot take under and against the same instrument. Election is an obligation to choose in a case where there is a clear intention of the grantor that the grantee should not enjoy both. The foundation of the doctrine is that the person taking a benefit under an instrument must also bear the burden.
64. In present matter firstly, execution of mortgage deed duly admitted by both parties wherein it is clearly mentioned that ATS , GPA, ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 38 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:06:59 +0530 Will and receipt were executed on the day of execution of mortgage deed. As per defendant, Mortgage Deed is in possession of plaintiff. But, during her cross-examination defendant gave contradictory deposition as on the one side she stated that there was no mortgage agreement while, on the other side stated to be in possession of original Ex.PW1/D1. Secondly, defendant failed to produce any material on record to show that mortgage amount was Rs. 3 lacs or she has refunded the same to the plaintiff.
65. Further, entire testimony of DW1 does not invite any confidence being contradictory to her own defence. Relevant portion of cross-examination of DW1 is reproduced here-in-below:
XXXX of DW1 "I did not meet the plaintiff on 22.02.2010. I cannot identify the signature of my husband being illiterate. The document Ex. PW1/2 does not bear my signature at point B. I did not execute the documents Ex. P1, P2, P3, PW1/2 and P4, all dated 22.02.2010, in favour of plaintiff. I cannot tell the specific date when the property in question was mortgaged with the plaintiff. I am not aware about the contents of the mortgage deed Ex. PW1/D1. Same was also not read over to me by my husband or children. The plaintiff got signed bunch of documents approximately 20-22 documents from me. All the said documents were duly typed. I do not know if my husband had also sign on the said documents. No other person had signed the said documents. The said documents were signed and executed in District Centre, Janakpuri. At that time, me, plaintiff, my husband and one friend of plaintiff namely Bhanu were present. My husband ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 39 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:03 +0530 is illiterate. It is correct that said documents were explained in Hindi language to me and my husband. It is correct that the copy of said documents were also supplied to us. My younger son Gagan had gone through the documents supplied to us. I do not know if the document of mortgage was torned on the said day itself. I never visited the plaintiff's house. The plaintiff visited our house 2-4 times only.
It is wrong to suggest that plaintiff has not advanced any loan to me. It is correct that money transaction used to take place between the plaintiff and my younger son Gagan. It is correct that the plaintiff has made the payments to my son Gagan on my behalf and I had only signed the documents. In lieu of money received by my son, I never issued any receipt. I do not know whether in the documents which were signed and executed by me, it was written about the money transaction. I have a bank account but same is not operative for the last 7-8 years.
XXXXX It is correct that all the documents were prepared at one time and the same were signed by me and others at the same time. I am not aware with contents of the Ex. PW-1/D1. I can not tell what has written in the said document Ex. PW-1/D1. The original of the Ex. PW-1/D1 is with me (Objected to). I have not handed over the copy of my titled documents to the plaintiff. I have not raised any objection regarding the preparation of documents in English before signing of the same..
Q. Is it correct the document Ex.PW-1/D1 does not have your signature at 20-22 places.
Court observation.
The question is disallowed as the same is matter of record. Q. Have you raised any objections, why your signatures were taken so many documents?.
Ans. No. ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 40 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:12 +0530 I have not made any complaint to any authority regarding my signature. It is correct that the period of loan was not extended.
Q. I put it to you that since no loan was given by plaintiff to defendant therefore no period was extended.? Ans. It is incorrect.
At this stage witness is referred to para no.7 of Ex. DWI/A. Q. I put it to you that no interest was paid as referred in para no.7 of Ex. DW1/A? What do you have to say.
Ans It is correct. Vol. JO Paisa Liya Tha Wo Dediya. Byaj Ka Kuchh Nahi Tha.
Q. I I put it to you that you have wrongly stated from point A to A in para-7 of Ex.DW1/A? What have you to say. Ans. It is correct. No interest was paid.
Court Question Q. Do you know the meaning of interest.
Ans. Yes, Byaj It is wrong to suggest that no loan of Rs. 3 lacs was given by plaintiff to defendant.
I have refund above amount as arranged by my son. I am not aware whether same is mentioned in Ex.DW1/A or my WS. I do not know from where my son arranged said amount. Again said he has arranged from his business. I have issued one cheque to plaintiff but same was not honoured as payment was already made. Payment was made after issuing cheque. I did not recall the exact date, month or year for said payment. I also do not remember date of issuing cheque.
It is wrong to suggest that said cheque was issued qua use and occupation charges of suit property. At this stage witness is referred to para no.8 of Ex. DWI/A. Q. I put it to you that you have wrongly stated from point B to B in para-8 of Ex.DW1/A? What have you to say. Ans. It is correct. No such forged and fabricated document was prepared. Again said I do not know whether it was ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 41 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:05 +0530 forged or fabricated. I have not stated in Ex. DW1/A. Again said Jo Kagaj Hai Wo Galat Hai.
XXXXX I am aware about the facts of present case. (Vol: teen laakh rupee kaa). It is wrong to suggest that I am not aware about the contents of the present case.
Q: What was the value of the suit property at the time of execution of Agreement to Sell?
Ans: Bechne ke liye koi agreement nahi hua thaa. Suit property was valued in crores in the year 2010. Q I put it to you that Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.PW 1/2 are duly signed by your husband at point D. What do you have to say?
Ans: Nahi sign nahi hain.
It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I have identified the signatures of my husband at the time of admission/denial. I do not know the bank account detail of my husband.
Q. I put it to you that mortgage agreement was not act parties. What do you have to say?
Ans There was no mortgage agreement.
1 know Mr. Bhanu.
Q I put it to you that, Ex.Pl, Ex.P2, Ex.P3, Ex.P4 and Ex.PW1/2 were signed by you, your husband, plaintiff and Mr. Bhanu. What do you have to say?
Ans: Ex.Pl, Ex.P2, Ex.P3, Ex.P4 and Ex.PW1/2 were signed by me only and I do not know who else have signed the said documents.
I have not signed any notary register for Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.PW1/2.
At this stage, witness is confronted with Ex.PW3/A (objected to as photocopy).
I can identify my signature at point C. (Vol: I cannot identify the signature of any other person).
============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 42 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:05 +0530 I have not taken any receipt from plaintiff at the time of refund of Rs.3,00,000/-. I have not asked plaintiff to return Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.PW1/2 after refunding amount."
66. Admittedly, no cancellation or declaratory relief sought by defendant against impugned documents. Thus, considering the actual dispute and issues and circumstances established during the full-fledged trial and to renders complete justice to the matter at hand, this court deem fit to mould the relief and direct defendant to refund Rs. 30,00,000/- i.e. principal amount of mortgage without any interest within 60 days of passing of this judgment.
67. Reliance is placed upon recent judgment passed by Hon'ble Supreme Court of India in J. Ganapatha vs M/S. N. Selvarajalou Chetty Trust13 wherein, it was held that:
"20. The concept of moulding of relief refers to the ability of a court to modify or shape a relief sought by a party in a legal proceeding based on the circumstances of the case and the facts established after a full-fledged trial. The principle enables the court to grant appropriate remedies even if the relief requested in the pleading is not exact or could not be considered by the court or changed circumstances have rendered the relief obsolete. The court aims that justice is served while taking into account the evolving nature of a case. The above road map is pursued by a court based on the notion of flexibility in relief, equitable jurisdiction, and is tempered by judicial discretion. When moulding the relief, the court considers the issues and circumstances established during the full-fledged trial, looks at shortening the litigation, and then in its perspective, renders complete justice to the issue at hand. The converse of the above is 13 2025 INSC 395 ============================================================ CS DJ ADJ 16369/16 A. Selvaraj vs. Yashoda Devi Page no. 43 of 44 SHILPI M JAIN Digitally signed by SHILPI M JAIN Date: 2025.04.24 16:07:11 +0530 that the moulded relief should not take the aggrieved party by surprise or cause prejudice. The relief is moulded as an exception and not as a matter of course."
68. It is clarified that, if above amount not paid within 60 days, defendant shall be liable to pay interest @6% from date of expiry of 60 days till actual realization. Further, present decree shall be executable subject to payment of appropriate court fees on decretal amount.
Conclusion (Partly decreed):
Decree sheet be prepared in following terms:
a) Decree of Rs. 30,00,000/- is passed in favour of plaintiff without any interest i.e. to be paid within 60 days of passing of this judgment;
b) Plaintiff shall further be entitled for interest @ 6% from the date of expiry of 60 days till actualization;
c) Parties to bear their own cost;
69. File be consigned to record room after due compliance.
Announced in open court
on 24.04.2025 (SHILPI M JAIN)
District Judge-05, South West District
Dwarka Courts, New Delhi
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