Document Fragment View

Matching Fragments

Later he came with a proposal of construction to commence, to purchase for reduced price of Rs.60,00,000/- and entered into unregistered written agreement on 19.11.2010 by adjusting as advance payment Rs.35,00,000/- out of Rs.68,75,000/- by refunding balance of Rs.33,75,000/- and defendant Nos.2 & 3 [3rd defendant is wife of the 2nd defendant and both also directors of 1st defendant] created equitable mortgage for Rs.33,75,000/- on 19.11.2010 by deposit of their title deeds dated 31.05.2006 document No.8063 of 2006 of 2nd defendant and title deed dated 17.12.2004 document No.6035 of 2004 of 3rd defendant together with confirmation letters. As per instructions of 1st defendant Flycon Blocks Pvt. Ltd. issued 3 cheques to 1st plaintiff for Rs.18,75,000/- and one K.Ramu issued 2 cheques for balance Rs.15,00,000/- that were even returned dishonoured and same are subject matter of criminal cases. The suit claim thereform as construction is not completed and despite legal notice terminating the agreement dated 19.11.2010 for the 2000 square feet built up area, plaintiffs are entitled to recover said Rs.35,00,000/- also with interest @ 24% per annum and the suit claim is for the same which comes to Rs.40,18,000/-.

5. The sum and substance of the defence of the defendants supra is Rs.40,00,000/- as due however in saying the title deeds given are not as security for the amount by creating equitable mortgage, but to sell at the market value property covered thereunder, and after adjusting Rs.40,00,000/- to refund balance. The equitable mortgage created and letter of confirmation executed by defendants 2 and 3 as per the plaintiffs as security for the Rs.40,00,000/- with interest was dated 20.11.2010. The plaintiffs legal notice to the 1st defendant was dated 07.03.2012 with postal receipt of even date there is no reply from the defendants for that. If really the title deeds given is not by creating equitable mortgage as security for the amount of Rs.40,00,000/-, but to sell the property to market value and adjust and pay balance way back in 2010. It is unknown why reply is not given by the defendants with that fact. The giving of title deeds not in dispute. For saying those were given not as security for the amount due but for to sell and adjust the amount due and pay balance, there is no scrap of paper. Even contrary to their version there were letters of confirmation of deposit of title deeds by creating equitable mortgage and that papers are not even denied from plaint pleadings in the written statement. It is no doubt within the scope of Order VIII Rules 3 to 5 CPC for denial must be specific and any non denial or evasive denial tantamounts to admission.

13. The written statement of the defendants is also very clear in saying as plaintiffs were pressuring to execute sale deed by receiving the balance out of the sale consideration arrived of Rs.60,00,000/- which is to refund and the construction was not commenced to execute sale deed, they have delivered their property title deeds to the plaintiffs with oral arrangement to sell and take that Rs.35,00,000/- with interest which comes to Rs.40,00,000/- and odd and refund the amount with further say of the properties cost about Rs.2 crores, thereby plaintiffs to refund Rs.1.6 crores or so on sale. As stated supra, plaintiffs case is for the refund of the amount by the cancellation of the 2nd sale agreement advance of Rs.35,00,000/- with interest which comes to Rs.40,00,000/- above. They created equitable mortgage by deposit of title deeds and letter of confirmation of creating equitable mortgage also executed on 20.11.2010. The lower Courts observation was whether plaintiffs can unilaterally cancel the 2nd sale agreement dated 19.11.2010 to claim back advance amount of Rs.35,00,000/- with interest which comes to Rs.40,00,000/- above. The defendants version supra itself is that they handover the title deeds since the sale agreement is cancelled, to refund the amount with interest supra to adjust after sale and to pay balance. The same is not an unilateral cancellation but for bilateral arrangement. Here therefrom, the crux is whether the title deeds given are as security for the advance amount to refund or the sale deeds given with an oral arrangement to sell the property by adjusting the advance with interest and pay back anything remained.

16. Here the non giving of reply also to the notice one of the adverse inferences which no doubt in an admission substantiated to the non denial of facts, tantamount to admission of title deeds deposited are by creating equitable mortgage and not for the said version of oral subsequent arrangement in giving title deeds to sell the property and to adjust for the amount and to refund the balance. In fact, as per Order 12 Rule 6(1) of CPC, where admissions of fact have been made either in the pleadings or otherwise whether oral or in writing. Thus the admission in the pleadings or otherwise is an admission to pass a decree on admission. Therefrom the recital regarding the equitable mortgage created is once an admission otherwise, that too in the plaint when same is mentioned in Para 2(x) and same not denied in the written statement specifically but for coming with contradictory version of oral arrangement, which no way survive much less any basis to believe, from non denial tantamount to admission as per Order 8 Rules 3 to 5 within the meaning of Order 12 Rule 6 CPC as laid down in Kasturi Supra. According to the further wording of the provision, the Court may at any stage of the suit either on the application of a party or on its own motion, and without waiting for determination of any other question between the parties, makes such order or give such judgment as it may think fit and having regard to such admission to draw a decree in accordance with judgment as if a regular judgment and decree. Thus the Court may even pass decree on admission not only on the application of a party but also suo motu.