Madras High Court
A.Vagithabee vs R.Selvi on 20 December, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 11.06.2018
DELIVERED ON : 29.10.2018
CORAM
THE HON'BLE MR. JUSTICE M.V.MURALIDARAN
C.R.P. (MD) (NPD) No.723 of 2018
and
CMP(MD)No.3158 of 2018
1.A.Vagithabee
2.A.Jinna .. Petitioners
vs
R.Selvi .. Respondent
Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decretal order passed in
I.A.No.1065 of 2016 in O.S.No.402 of 2016 dated 20.12.2017 on the
file of the learned II Additional Sub Court, Tiruchirappalli.
For Petitioners : Mr.H.Arumugam
For Respondent : Mr.V.Thiyagarajan
ORDER
The petitioners are the defendants in the suit filed by the respondent herein in O.S.No.402 of 2016 on the file of learned II http://www.judis.nic.in 2 Additional Sub Court, Tiruchirappalli for recovery of sum of Rs. 2,67,500/- with interest at the rate of 24% p.a. on the basis of an unregistered simple mortgage and in default of payment they have prayed to pass final decree for releasing the suit amount against the suit property under mortgage. The case of Plaintiff is the Defendant 1 and 2 borrowed sum of Rs.1,50,000 agreeing to pay interest at the rate of 5% p.m. and they executed an unregistered mortgage deed on 31.05.2014 and they have also deposited the original Title Deed dated 26.06.2009 in the Document No.607/2009, relating to the mortgaged property and since the amount was not repaid the suit was laid.
2.The Petitioners as defendants, apart from denial of the alleged borrowal of money came forward with plea that the suit, as framed for recovery of money, on the basis of an unregistered mortgage is not maintainable and barred by law, the Court fee paid under “Section 33” of the Court Fee Act, which is clear that it is applicable to the suit for mortgage, further they also prayed for passing final decree for releasing the amount by bringing the property into sale, and further the particulars of mortgage provided in the plaint confirms that the suit is based upon unregistered mortgage, which is a clear bar for filing of suit, hence they filed a petition in I.A.No.1065 of 2016 to reject the http://www.judis.nic.in 3 plaint on the above grounds. The respondent filed counter in said application stating the petitioners alone are liable to register the mortgage deed but they were not able to do so, however they deposited the title deed related to the suit property by creating equitable mortgage towards security for repayment of loan and therefore the suit is maintainable.
3.The Trial Court through the impugned order dismissed the petition on 20.12.2017 with a finding that the mortgage by deposit of Title Deed does not require registration as held by the Hon’ble Supreme Court in State of Haryana and others vs Navir Singh and others case reported in 2013 (6) CTC 34 and as well as the judgment reported in AIR 2007 Bombay 111 and further held that the insufficiency of stamp duty and non-registration of document will not attract Order 7, Rule 11 of CPC. The said order is challenged in this Civil Revision Petition.
4.I heard Mr.H.Arumugam, learned counsel for the petitioners and Mr.V.Thiyagarajan, learned counsel for the respondent and perused the entire materials available on record. http://www.judis.nic.in 4
5.The learned counsel for petitioners submitted that the very reading of plaint, without any doubt confirms that it is a suit for money based on an unregistered mortgage and therefore it is barred by law since the registration of mortgage is compulsory by law under “Section 17” of Registration Act and as well as under Section 59 of Transfer of Property Act, 1882. He further added the averments made in plaint also, without any doubt confirms that the title deed was deposited by creating equitable mortgage through the unregistered mortgage deed dated 31.05.2014, where as the “Section 17(i)” of Registration Act, as amended by Tamil Nadu Amendment Act 2012, with effect from 01.12.2012, makes the registration of instrument evidence in agreement relating to the deposit of title deed as compulsory registerable document. He further submitted that the judgement relied by the Court below, were rendered prior to above Tamil Nadu Amendment and therefore the order of Court below is erroneous and liable to be set-aside.
6.The learned counsel for the respondent submitted that the mortgage by deposit of title deed is as per Section 58(f) of Transfer of Property Act, 1882 and the same is exempted from compulsory registration as per “Section 59” of Transfer of Property Act hence the http://www.judis.nic.in 5 mortgage does not require registration. He further reiterated that the above position and relied upon the judgement of Hon’ble Supreme Court reported in 2013 (6) CTC 234 and thus submitted that suit cannot be rejected and the order of trial Court is perfectly right.
7.This Court considered the arguments of both side. For deciding the issue, as to whether the suit for money on the basis of simple mortgage or mortgage by deposit of title deed, and for deciding the issue as to whether the petition for rejection of plaint can be entertained, it is settled law that the averments made in the plaint alone has to considered. Therefore, it is clear the reading of plaint alone must indicate that the suit is barred under law. Here, the pleading in Para 4 of plaint shows that the suit is based upon an unregistered simple mortgage deed. Further Para 6 of the plaint makes it clear that the title deed was deposited and thus an equitable mortgage has been created through the unregistered mortgage deed dated 31.05.2014. The Cause of action pleaded and the Court fee paid under “Section 33” of Court Fees Act, which is applicable to mortgage suit and the prayer sought for passing of final decree, all unequivocally and without any ambiguity confirms that it is the suit for money based upon an unregistered simple mortgage deed. According the plaintiffs http://www.judis.nic.in 6 its in the alternative of the deposit of title deed by creating equitable mortgage.
8.It is useful to extract “Section 58(f) and 59” of the Transfer of Property Act 1882, which was read as follows:-
“Section 58(f), Mortgage by deposit of title-deeds:-Where a person in any of the following towns, namely, the towns of Calcutta, Madras, [and Bombay], [* * *] and in any other town which the [State Government concerned] may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
“Section 59, Mortgage when to be by assurance:- Where the principal money secured is one hundred rupees or upwards, a mortgage [other than a mortgage by deposit of title deeds] can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by [a registered instrument] signed and attested as aforesaid or (except in the http://www.judis.nic.in 7 case of a simple mortgage) by delivery of the property.
9.Thus the Registration of all mortgage where the principle money is secured is Rs.100 or up wards shall be only by registered document. The exemption therein was the mortgage by deposit of Title Deed. As stated supra, the reading of Para 4 of the plaint clearly shows that the suit is based upon an unregistered simple mortgage deed and therefore non-registration of mortgage deed goes to the root of the case and it is a bar created under “Section 59” of the Transfer of Property Act 1892, to maintain the suit and therefore the suit cannot be maintained. Thus, the petition filed under Order 7, Rule 11 is maintainable in law. Resulting that, the plaint is liable to be rejected on this ground.
10.Even the other plea made by the respondents that the deposit of title deed does not require registration and thus the suit is maintainable under “Section 58 (f)” of Transfer of Property Act does not have any force in law, in view of the Tamil Nadu Amendment Act, 2012, making it compulsory to register the instrument evidencing the deposit of Title Deeds by include the same as “Section 17(i) of Registration Act 1908. The Mortgage Deed under dispute is dated http://www.judis.nic.in 8 31.05.2014, i.e. subsequent to the above amendment. Therefore, it requires compulsory registration. Thus even if the suit is relied on the basis of deposit of title deed the same is inherently bad for non- registration of document.
11.The Trial Court has relied on the judgement in State of Haryana and others vs Navir Singh and others case reported in 2013 (6) CTC 34 and held that the mortgage by deposit of Title Deed does not require Registration. But that judgement is not applicable for two reasons viz., One on the ground that it was rendered prior to Tamil Nadu Amendment Act, 2012 and second that there was no statue available in that case making the registration of deposit of Title Deeds as compulsory. Here, as stated supra, on or form 01.12.2012 the Registration of Deposit of Title Deed is compulsory under “Section 17(i) of Registration Act, 1908 and thus dehors of Section 59 of Transfer of Property Act, the document required compulsory registration under provisions of Registration Act, must be registered as the Registration amendment will prevail other and thus the suit cannot be maintained even on the alternative plea on the basis Deposit of Title Deed. But the trial Court on wrong footing and assumption passed the impugned order which is liable to be set aside. http://www.judis.nic.in 9
12.In the result, the Civil Revision Petition is allowed and the order passed in I.A.No.1065 of 2016 in O.S.No.402 of 2016 dated 20.12.2017 on the file of learned II Additional Sub-Court, Tiruchirappalli is set-aside and consequently the I.A.No.1065 of 2016 is allowed and the plaint is rejected. Consequently, connected Miscellaneous Petition is closed. No costs.
29.10.2018
vsv
Index : Yes
To
The II Additional Sub Court,
Tiruchirappalli.
http://www.judis.nic.in
10
M.V.MURALIDARAN, J.
vsv
Pre-delivery order made in
C.R.P. (MD) (NPD) No.723 of 2018
and
CMP(MD)No.3158 of 2018
29.10.2018
http://www.judis.nic.in