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3. In reply to plaint, defendant filed written statement wherein preliminary objections were raised stating that suit against the defendant is a frivolous, misconceived and without any cause of action and hence be dismissed. It was also stated that suit is grossly misconceived and misleading and filed just to preempt the legal consequences that follows the mortgagors liability on the default of the main defaulter/borrower of the defendant bank. On merits, it was stated in written statement that plaintiff had taken over the company from Sh. Vipen Parwanda for a consideration and the same was not fully paid at the time of settling the defendant bank dues as per their understanding and though the defendant was not a party to the transactions between the plaintiffs and Sh. Vipen Parwanda, the plaintiffs have offered to mortgage the property as security for the repayment of outstanding dues of companies i.e. M/s Secos India (P) Ltd., M/s Sikha Associates, M/s Kumar Travels, M/s Venus Management (P) Ltd. and M/s Falcon Books Pvt. Ltd.. and since the plaintiffs owe some money to Sh. Vipen Parwanda they offered their property as a security to the defendant bank for the outstanding dues in the accounts of said companies to the extent of Rs. 1.25 crores. It was further stated that letter dated 24.3.2004 is signed by the plaintiffs who are well educated knowledgeable businessmen ostensibly with sound mind and letter is signed by three persons/ plaintiffs and it is clearly stated that there was a liability to the extent of Rs. 1.25 crores in the accounts of the companies i.e. M/s Secos India (P) Ltd., M/s Sikha Associates, M/s Kumar Travels, M/s Venus Management (P) Ltd. and M/s Falcon Books Pvt. Ltd.. It was also stated that it is a voluntary act on the part of plaintiffs as they had some business obligation with Sh. Vipen Parwanda who was involved with said companies. It was further stated in written statement that plaintiffs had given their consent through the letter dated 24.3.2004 and after three months on 15.6.2004, they realised that they had executed a letter under coercion and three plaintiffs admitted that letter was given by them and at the same time stated that it was given under coercion and undue influence, however plaintiffs did not file any criminal complaint stating that the defendant bank officials have taken the letter under coercion and undue influence. It was also stated that since the titled deeds are placed with the defendant bank as a security the defendant bank may not legally deliver the original title deeds to the plaintiff till the dues of the defendant is paid. Rest of the contents of plaint were denied and it was prayed that suit be dismissed with heavy costs.

10.Issue No. 1. Whether the plaintiff any cause of action to file the present suit?OPP and Issue No. 2. Whether the entire suit property has been mortgaged by the plaintiff in favour of defendant?OPD and Issue No. 3. Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendant to release the title deeds of the suit property to the plaintiff?OPP:- All issues are taken up together as they are inter-connected and were also decided by Ld. Trial court together. The same were decided against the plaintiffs and in favour of defendant. It has to be kept in mind that DW-1 Sh. V.K. Seth cannot be considered because he has not come forward for cross- examination and testimony available on record on behalf of defendant is only of DW-1 Sh. Kumar Abhishek. The defendants are mainly relying upon the statement of DW-1 and three documents Ex. DW-1/1, DW-1/2 and DW-1/3. The onus was on the defendant to prove that some mortgage was created by the plaintiffs in favour of bank towards the account of Sh. Vipen Parwanda for M/s Secos India (P) Ltd., M/s Sikha Associates, M/s Kumar Travels, M/s Venus Management (P) Ltd. and M/s Falcon Books Pvt. Ltd.. The number of discrepancy have come during evidence. First of all, the documents in question was not witnessed by any witness. No document creating a charge can be accepted unless attested by two witnesses because it is not the mortgage by depositing the title deeds but mortgage through document. There is clear cut cutting in the letter in question and words "1400 sq. yards" have been over written without any attestation by executant. DW-1 has admitted that cutting should have been attested and it itself creates doubts regarding veracity of document. The property in question bears No. 1/5875 Kabool Nagar, Shahdra, Delhi-110032 but number of this property is not mentioned in the document and even the preference of loan account in which first lien is to be kept is not mentioned in this letter. Name of companies have been given but how the proceeds of the property involved has to be aportioned is not given. It cannot be stated that property in suit and title deeds were exactly of same property which has been mentioned vaguely in this letter. Moreover, in this letter it is not mentioned anywhere that title deeds are deposited and mortgage is created by depositing title deeds. The Section 70 of Indian Registration Act coupled with Section 59 of the Transfer of Property Act comes into picture and documents is compulsory registrable and could not have been taken into account unless properly stamped and registered as per law. The counsel for appellant has relied upon AIR 1929 Privy Council 141 titled Khoo Sain Ban Vs. Tan Guat Tean wherein it was held that "Where a document purporting to create an equitable charge was compulsorily registrable and if it was not registered no charge can be created by it". Further reliance has been placed upon AIR 1962 Allahabad 101 (V 49 C 28) titled Krishna Deva Bhargava & Ors. Vs Official Liquidator U.P. Oil Industries Ltd. wherein it was held that "A company issued debentures which were of a value above rupees one hundred and which purported to create a charge on the properties of the company present and future. The debentures were registered under S. 109 of the Companies Act (1913) but were not registered under S. 17 (1) (b) of the Registration Act. Consequent on the liquidation of the Company, the official liquidator moved an application for a declaration that the debenture-holders were not secured creditors but ordinary unsecured creditors. On a question whether the debentures even though registered under S. 109 of the Companies Act required compulsory registration under S. 17 (1) (b) Registration Act". Further counsel has relied upon AIR (37) 1950 Nagpur 117 Bapurao Dajiba Vs Narayan Govind Kale wherein it was held that "(c) T. P. Act (1882) Ss. 100 and 59 - Amendment of para. 1 of S. 100 - Effect- Section 59 is not made applicable - Charge can be made orally, but if made by document, if must be registered. By the amendment of para 1 of S. 100, the law was not intended to be altered, but the amendment was made to show more clearly what the rights and liabilities of a charge holder were to be. The amendment did not have the effect of brining in its trail S. 59, T.P. Act so that a charge could only be made by a registered document attested by two witnesses as is the case with a simple mortgage. If the provisions of S. 59, are extended to charge it becomes at once apparent that all charges, irrespective of the amount secured, must be made also by a registered document. Now if this be the case, the equitable doctrine of notice, which is put in with such circumspection in the second paragraph of S. 100 of the Act becomes meaningless. Under S. 3 of the Act there will always be notice of charge because of registration. The result therefore is that oral charges can still be made, though if a charge is made by a document the document must be registered". The document Ex. DW-1/1 at the most for the sake of arguments shows that Ashwani Kumar was individually personally liable alongwith Vipen Parwanda and no liability can be fastened on the property in question. Ex. DW-1/1 does not mention in which account the promissory note has been made and same is a vague, non-descriptive document. Further, Ex. DW-1/3 is also of no use because third person cannot bind plaintiff by writing letter and by mentioning the property in question as the owner only can do so. If in this manner the mortgage can be created then there is no need of relevant provisions in Registration and Transfer of Property Act whereby mode and manner of creating mortgage is mentioned. Thus foremost ingredient of mortgage has not been proved by defendant though onus was upon him. There was no reason for trial court to ignore the copy of letter dated 24.3.2004 produced by plaintiff as Ex. PW-1/2 and to admit the document produced by defendant when reasonable apprehension has arisen regarding the execution of document. The Ld. Trial Court should have given the ground as to why he has preferred the copy produced by bank/defendant. Even the letter dated 01.4.2004 has not been proved as per law as Vipen Parwanda has not been produced in evidence. The documents Ex. DW-1/2 has also not been proved as per law by bank because no official of bank has been produced in whose presence the same was executed. No question was put to plaintiff witness regarding Ex. PW-1/4 and thus the same is deemed to be admitted to be correct by defendant. Even otherwise this Ex. PW-1/4 can also not be read against the plaintiff because as observed above, there is no mention of any property no. in the same. When issue No. 2 has not been proved and mortgage has not been proved then defendant has no right to keep the title deeds of property No. 1/5875 Kabool Nagar, Shahdra, Delhi-110032 with them and plaintiff is entitled to get the same released. As same were not released cause of action was made out in favour of plaintiff. Thus on all counts, the appellant has proved his case. All these issues are decided in favour of appellants and against the respondent and finding of Ld. Trial court on all issues is reversed.