Karnataka High Court
Sri A M Ismail Shariff vs Sri S G Malik on 22 August, 2008
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
-1- IN ran area coar or xannnmaxn A! BANGA£0§£ av DATED THIS THE 21"" DAY 05* AuG1usTl":"2'0O/81"': . 33.10% an HQN'3L3 un.Jvsm:cz s;x.$§1gau;&§z#ua.y],. warr PETITION;NO.29OGf2006 3~: 1 1?" BETWEEN: 'V V . 1 SR: A M ISMAIL SHERIFF =n_ , S/O LATE SKEIK MEHABOOB'SAHEB;*_ AGED ABOUT 55 YEARS. %1" .'aV R/AT NOOR MANZIL,__. .V, '* BAZAAR STREET,jAUDUGODI}JH, BANGALORE 30; 't %L" ",_*'*wv _,Hva i_g *_ K", 2"-g.,; PETITIONER (By SRI K S.NAGARAJA'RAO'&FASSOCIATES, Anvs) 1 sRI's G MALxKj ,", 3/o GA?FERVaAra,<v AQED ABGU$'5é YEARS, ~43/AT No.1;~4IH CROSS, «A "~cHxNMAIANAPALyA. '»uBANGALQRE_30. M,Z gSRf'fiRZEER.AHAMED "'n, BANGALORE 30. ;R1-é 2 SERVICE HELE SUFFICIENT ) uMAJ0RfE. "R/AT No.1, 4TH CROSS, CHINNAIANAPALYA. . . .. RESPONDENTS
THIS WRIT PETITION IS FILES UNDER ARTICLES 'aféée & 227 09 THE cowsrxruwxow OF INDIA PRAYING TO xsar ASIDE THE oanma DT.9.7.2003 IN OS.NO.4092/9? VIBE ANN-"S BY PERMITTING THE PETITIONER Tc>'T'MARK THE DOCUMENT IN QUESTION IN E13 EVIDENCE. g= = THIS PETITION HAVING BEEN EE's-EEvEEV'h"%A1ES_A' comma ow FOR PRONOUNCEMENT OF oEEERs---- ..frE1'3 fnaz, "
THE COURT MADE THE £'oLLow1N<;;.'""
.9.:%£.¥:§ This writ petition ie filed ehéllenéing the order dated 9.7.2v0O.é;--iE__f{)5E'.'hI'o'V{_E§92/1997 on the file of the ahddl,Cityt CijiiWhJEege, Bangalore, refusing hp oeffi the docgeeht ehioh is styled as "Mortgage:hyfoonditiohoof eahe5. 2§e For ,the. ghrpose of convenience the parties Wi1}VVbé: fefefred to with their ranking ""a_befoke;thezCoEEt"below.
'*h3. hfhe' plaintiff has filed the suit for 'E foreclosfihe of mortgage dated 5.12.1996, for sale utht,of;§uit schedule property and for recovery of a hihsohflof Rs.3,45,000/- along with interest at 36% 'h'"p}a. on Rs.3,00,000/~ from the date of suit till "/7 ..3_ the date of realisation against defendants 3 andffi
2.
4. It is the case of the plaintiff that,:the\rf lat defendant in the suit wad absolute owner of suit schedule property; he had borrowed a sun of Rs.3,00,000/-- from.the plaintiff en security of"
the suit schedule :i§to§ttty;,x'¢ngt"f the 1st defendant hadieadreed_itoL_repa# lttt loan with interest at 3tjt§t_t¢§tg§ That, the lat defendant as and by waf bf aecurity for repayment of the loan executed a feed of Nbrtgage by conditional sale in favoui of the olaintiff on 5.12.1996 and VndepoSited*the original documents of title of the éutt__t.5¢t§ga;,:1t¥Vttxptoperty with the plaintiff. It is ft=.further caae of the plaintiff that in the said f*» heed of_ Mortgage of conditional sale the lat '"._defendant and plaintiff had mutually agreed that, 'f=_ in fthe event of the 1st defendant failing to u"re@ay the loan secured under the Deed along with "W schedule property was not mortgaged to ithe plaintiff, that if there is any mortgag§;'A»V:'xt..;¥;e:"
same was not registered. As such, it gwaaj.hgtVj reflected in the encumbrance, therefore the shit 3 schedule property, which is pfirchesed by him, isr° free from all encumbranoes}, AcobKdi3§V to "hia; neither the 2"" deferidant s.1iit~.,sc.hedule property is anawerabie. to: the heiaim of the plaintiff. Issues were hframéd hiss fésidence is commenced in §fié}§§i§asfii§.E fiheh the matter was taken up Viieiridehce on 9.7.2003, the plaihtiffngdddoed:etidehoe and marked Exs.P1 to 3. Howeter;--Qfiah the document of mortgage by condition of sale wee sought ix) be marked, the rrCourt"hel§w reffised permission to mark the said hdocafient",onr»the ground that the same is un- registered and hot admissible in evidence. d*.7. hThereafter, the piaintiff filed an iapofiication under Section 151 of CPC seeking Epermission to mark the un~registered mortgage "W2
-5, deed in evidence in the said suit. The application was filed by the 12.2.2004 for' which. the 2"' defendant hha$fdfi1edrui° his detailed objections on 1i}3L2oo4..: ergo thee matter stood thus, the petitioner'--'herein 'has: nc*--..4<.',$J'.'Iié'V' up before this Court chai1..en~ging.V.tVhe ~o[r.f3ei?VV4f>aesed V by the Court below on 9.7,2nQ3 in os{No.4e§2/1997 refusing to permit document, which is styled as morto§ge*by_oono§tion of sale.
8. respondents are served and service of notice themLlilvel'v.he'i,:d"'«.§ufficient. Though they have been éeervved} have not chosen to enter ~"'~tappe'a5£~ag,}(,§eV.r_Aand"""'contest the same by filing Eoejeot;ons,V 'k9, going through the records and the uu"'"_i;n'pngned"' order, prima facie it appears that the 'defendant has borrowed a sum of Rs.3, O0, 000/"
the plaintiff and has executed a Deed of ""7 Mortgage by condition of sale agreeing to repay the said loan amount along with interest at §%_ per month. It is seen that the 1st defendant fias_ ° agreed that in the event he fails ta pay the loan secured under the said docnment lalonq EwithxL interest due thereon within the time stipnlated,V the conditional sale agreed hnder the mortgage by conditional sale eillalnecomafldafigolute and the plaintiff Wflil, b3 Wenfiifiiédr to: foreclose the mortgaged prope%#y,inr=: V l uflw lfi¢.hdnittedlYr the transaction between the plaintiff and let defendant is a loan transaction and the °snit lfiledv in the Court below is for recesery of the said loan along with interest due no. lthereon{..:\Admittedly, the document styled as "WMort§aaea_hy" condition of sale" is the only document-to establish the said loan transaction Z""a "between ;the plaintiff and 1st defendant. That x"the:?said document is not a simple Deed of "art Mortgage by deposit of title deeds, but a i" document which, is coupled iiith the interest to "M7 convey title of the property in favour .off7the mortgagee subject to certain oondition§f"5Hefice{_ it is compulsorily registerable under Section 17m x of the Registration Act.
11. No doubt, in "tfie inStafito=ceee, the document in question Wfihioh Erequires" to compulsorily' registered.Vmey' not ,be8 received evidence in respect of the property referred therein ,aS"_5eohtemgiated iiig» Section 49 Registration Aet,_wh1oh reaqa as follows:i f5§§r 'Effeotf"Of: nonwregistration vdocumentsireqdireo to be registered» '7,No'qocfiment required ____ by Section 17 _f b§7«a8y, provision of the Transfer "'8§8§eftyf Act, 1882 (4 of 1882) to *Fre§i5ré&éd shall ~ {a}: affect V"vcomprised therein, or any immovable
(b) confer any power to adopt, or ""W of or of be property be in to of
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the parties. Mere marking of th K document does not take away the right off * the opposite party to contend that each af*'i document cannot be relied upon as it is not registered. Similarl§}*when.thé la" ' declares for collateral tdporboees: «axwfdd unregistered document could bef looked? into it makes clear thét such e docfiment could be marked, :7,°;Under' .these circumstances; the firoperacofiree for the Courts would be to ea}? anon documents, subject to objectioneg"oermitpthe parties to addfice§,é4idence _insteed" of putting quesfioné to fihé lewfere at the time of argument to state for what purpose they are _.relyin§a "ofi»_ the said document. Thereafterditconeider the respective contentions at the time of final hearing tend then decide whether the said document j couldk be looked into for collateral l".purpoeee»and whether non--registration of '7_the7pnseid document has made it A,_inedeiseible in evidence. Therefore, the aporoach of the Court below cannot be hnVt.su§ta1ned.
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