Dismissed

Mr. Y N Narasimhareddy v. Mr. Y B Sreerama Reddy

Karnataka HC13 Sept 2021RSA/562/2021

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by the appellants against a judgment converting a mortgage deed into a conditional sale deed. The court held that time was essence of the contract, the suit was barred by limitation, and no substantial question of law arose.

What did the court decide?

The second appeal was dismissed with no substantial question of law framed.

Mr. Y N Narasimhareddy Vs Mr. Y B Sreerama Reddy — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.562/2021 (MOR)

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BETWEEN:

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MR. Y.N. NARASIMHAREDDY SINCE DEAD BY HIS LRS

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SMT. ASWATHAMMA

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W/O LATE Y.N. NARASIMHAREDDY AGED ABOUT 61 YEARS

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SMT. RATHNAMMA

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W/O LATE Y.N. NARASIMHAREDDY AGED ABOUT 55 YEARS

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SRI Y.N. NARAYANASWAMY

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S/O LATE Y.N. NARASIMHAREDDY AGED ABOUT 35 YEARS

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SRI SHANKAR Y.N

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S/O LATE Y.N. NARASIMHAREDDY AGED ABOUT 32 YEARS

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SMT. RADHA

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D/O LATE Y.N. NARASIMHAREDDY AGED ABOUT 25 YEARS

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SMT. LAKSHMIDEVAMMA D/O LATE Y.N. NARASIMHAREDDY AGED ABOUT 25 YEARS

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SMT. MANJULA D/O LATE Y.N. NARASIMHAREDDY AGED ABOUT 26 YEARS

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ALL ARE R/AT YALAKALARALLAHALLI VILLAGE KASABA HOBLI GUDIBANDE TALUK-561209

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… APPELLANTS

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[BY SRI MOHANCHANDRA P, ADVOCATE (ABSENT)]

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AND:

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MR. Y.B. SREERAMA REDDY S/O LATE BABANNA AGED ABOUT 49 YEARS

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SMT. BYRAMMA W/O Y.B. ASHWATHANARAYANA SWAMY AGED ABOUT 51 YEARS

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MR. MANJUNATH S/O Y.B. ASHWATHANARAYANA SWAMY AGED ABOUT 22 YEARS

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MRS. VENKATESHAMMA W/O SRIRAMAPPA D/O Y.B. ASHWATHANARAYANA SWAMY AGED ABOUT 30 YEARS

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SMT. MANJULA W/O MUNIRAJU D/O Y.B. ASHWATHANARAYANA SWAMY AGED ABOUT 28 YEARS R/AT RAMAPURA

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KADALAPURA VILLAGE SULEBELE HOBLI AND POST HOSAKOTE TALUK-562129 BANGALORE RURAL DISTRICT

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MRS. ASHWATHAMMA D/O Y.B. ASHWATHANARAYANA SWAMY AGED ABOUT 24 YEARS

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RESPONDENTS No.1 TO 4 AND 6 ARE R/AT YALAKALARALLAHALLI VILLAGE KASABA HOBLI GUDIBANDE TALUK-561209

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SRI Y.B. VENAKATESHAPPA S/O LATE BABANNA AGED ABOUT 43 YEARS R/AT MUMMANAHALLI VILLAGE PALLICHERLA POST SIDLAGATTA TALUK CHIKKABALLAPUR DISTRICT

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… RESPONDENTS

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 26.03.2021 PASSED IN R.A.NO.111/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE (ITINERARY COURT) AT GUDIBANDE AND ETC.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission on 2^nd September 2021

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and this Court heard the matter on the said date and when this

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Court was about to dictate the judgment, at this juncture, the

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learned counsel for the appellants seeks time to furnish the citations. Though time was granted to the learned counsel for the appellants to file the citations, on 6^th September 2021, he submits that he has filed an application incorporating the additional grounds and additional substantial question of law. Hence, this Court directed the office to put up the said application and posted the matter today to consider the appeal along with the application.

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Today, the learned counsel for the appellants is absent and this Court passed over the matter and inspite of the same, the counsel for the appellants did not turn up. Hence, this Court considered the appeal since already heard the matter on previous hearing and today considered the application filed in I.A.No.2/2021 for additional grounds and additional substantial question of law.

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This appeal is filed challenging the judgment and decree dated 26^th March 2021 passed in R.A.No.111/2018 on the file of the Senior Civil Judge (Itinerary Court) at Gudibande.

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The factual matrix of the case is that the plaintiff has filed the suit for the relief of redemption of mortgage deed dated 3^rd March 1988 and the said mortgage deed was executed by way of conditional sale in favour of one Babanna by receiving an amount of Rs.5,000/- and the possession of the suit schedule property was delivered to said Babanna and inter alia agreeing to execute the redemption of mortgage deed by get back the possession of the suit schedule property from Babanna. It is contended that the time is not an essence of the mortgage deed. It is further contended that the plaintiff had orally demanded on several occasions to Babanna for redemption of mortgage deed but he postponed the same. The said Babanna was died on 19^th July 2008. Hence, the defendants have became the legal heirs of deceased Babanna. Thereafter, the plaintiff orally demanded the defendants on several times to execute the redemption of mortgage deed by receiving an amount of Rs.5,000/- but they did not do the same with a malafide intention to grab the plaintiff’s valuable suit schedule property. Hence, the plaintiff had filed the suit before the Trial Court.

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In service of suit summons, the defendants No.1 to 3

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and 7 appeared through their counsel and filed their written statement by denying the averments made in the plaint. It is specifically contended that the mortgage deed was executed and a specific time i.e., for a period of five years was also mentioned in the said deed and if the plaintiff fails to approach the defendants for the redemption of mortgage deed within the time stipulated in the mortgage deed i.e., within five years, the very document is treated as conditional sale deed and the plaintiff had failed to repay the borrowed amount within the stipulated time fixed in the conditional sale seed. It is further contended that the plaintiff had not approached the Court with clean hands and suppressed the material regarding another suit in O.S.No.64/2004 filed by the sons of deceased plaintiff and the said suit was barred by limitation.

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Based on the pleadings of the parties, the Trial Court had framed six issues and the plaintiff himself examined as PW1 and examined one witness as PW2 and got marked the documents at Ex.P1 to P4. On the other hand, the first

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defendant examined as DW1 and got marked the documents at Ex.D1 to D4. The Trial Court after considering both the oral and documentary evidence came to the conclusion that the registered mortgage deed in respect of the suit schedule property was executed by the plaintiff by way of conditional sale in favour of one Babanna by receiving an amount of Rs.5,000/and it is also observed that the time is an essence of the contract. Thus, within a period of five years from the deed of mortgage, the plaintiff had never approached the defendants for redemption of mortgage deed and hence, dismissed the suit.

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Being aggrieved by the judgment and decree in O.S.No.172/2008 of the Trial Court, the legal representatives of

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the deceased plaintiff had preferred an appeal before the first Appellate Court in R.A.No.111/2018. The first Appellate Court also on re-appreciation of the material available on record came to the conclusion that the Trial Court was justified in holding that after the lapse of five years from the date of the execution of Ex.P1, Ex.P1 becomes absolute sale deed and also comes to the conclusion that the suit is barred by limitation since the plaintiff

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had not approached the defendant within the time stipulated in Ex.P1 and the additional evidence on the copy of the Execution Petition No.68/997 is not necessary to decide the issue involved between the parties and dismissed the appeal.

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Being aggrieved by the concurrent findings of the Trial Court and the first Appellate Court, the present appeal is filed by the appellants/plaintiffs. The main contention of the appellants in this appeal is that both the Courts have committed an error in taking into consideration of the period of limitation for the redemption of the mortgage deed. The limitation for the redemption of the mortgage is 30 years as prescribed under Article 61(a) of the Limitation Act, 1963. Both the Courts have committed an error in coming to the conclusion that after the expiry of the period of five years as stipulated in the deed of mortgage, the same is treated as absolute sale instead of mortgage deed and thereby comes to the conclusion that the defendants have become the absolute owners of the suit schedule property.

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This Court heard the counsel for the appellants on the earlier date and thereafter he has also filed an application in I.A.No.2/2021 wherein he has raised the additional grounds contending that the defendants have never treated the deed of mortgage for conditional sale deed after the expiry of five years and they continuously treated the plaintiff as the absolute owner of the suit schedule property and treated the deed of mortgage as mortgage only. It is also contended that the deceased Babanna filed a suit against Y.N.Narasimha Reddy in O.S.No.17/1995 before the Court of Munsiff at Chikkaballapura for recovery of money of Rs.26,975/- along with future interest at the rate of 2% per month. The said suit was decreed on 27^th February 1996 but Y.N.Narasimha Reddy did not pay the decreetal amount. Hence, Babanna filed an execution petition for recovery of money in Ex.No.68/1997 before the Court of Munsiff at Chikkaballapura wherein the decree holder – Babanna treated the Judgment debtor – Y.N.Narasimha Reddy as the absolute owner of the said mortgaged property and sought for an attachment of the suit schedule property for recovery of money due from the plaintiff. The subsequent conduct of the

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defendant clearly goes to show that he never acted upon deed of mortgage for conditional sale after the lapse of five years and he treated the plaintiff as the absolute owner of the property after the lapse of five years from the date of execution of the deed of mortgage dated 30^th March 1988. Such being the case, the suit filed by the plaintiff for redemption of mortgage of the suit schedule property, within 30 years, is in time. But both the Trial Court and the first Appellate Courts have committed an error holding that the plaintiff has failed to file a suit for redemption of mortgage within five years from the date of the execution of the mortgage deed and the suit is barbed by limitation. The counsel also raised the additional substantial question of law contending that the said Babanna never considered that he is the absolute owner of the property after the expiry of five years from the date of execution of the mortgage deed dated 30^th March 1988 and he continuously considered the plaintiff as the absolute owner of the mortgaged property after the expiry of the period of five years and sought for an attachment of mortgaged property and the findings of both the Courts are erroneous.

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Having considered the grounds urged in the appeal

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and also in the application filed in I.A.No.2/2021 and also considering the material available on record, the contention that the time is not an essence of the contract of mortgage, cannot be accepted by this Court. Having perused the mortgage deed, it is clearly mentioned that the time is stipulated for a period of five years and also on perusal of the orders of both the Courts, it is clear that if the mortgaged amount is not paid within five years, the same has to be treated as absolute sale in terms of conditional sale, the said fact is also not in dispute.

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Ex.P1 is also clear that it is a document of mortgage and period of mortgage is mentioned as five years and if the amount is not paid within five years, the same has to be treated as absolute sale. When such being the facts and circumstances of the case, both the Courts have came to the conclusion that Ex.P1 is a deed of conditional sale as prescribed in the mortgage deed after a lapse of five years. The very contention of the counsel for the appellants that there was a 30 years time to file a suit for redemption of mortgage is cannot be accepted when

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the document itself stipulates the specific time and if he does not acted upon within the period specified in the document at Ex.P1 which is the deed of conditional sale confers the right in favour of the defendant as absolute owner. The other contention that the original holder of Ex.P1 himself had filed a suit for recovery of Rs.26,975/- and also a execution petition thereof discloses that he treated the plaintiff as the absolute owner of the suit schedule property as raised in the additional grounds in I.A.No.2/2021 also cannot be accepted. The Court has also looking into the registered mortgage deed at Ex.P1 wherein it is specifically contended that the amount is not paid by the plaintiff within the period of five years, it amounts to a sale. Once the document is treated as conditional sale, the very contention that he recognizes the plaintiff as the absolute owner cannot be accepted. The oral evidence cannot be accepted as against the documentary evidence of Ex.P1. Ex.P1 is specific that the period is mentioned as five years and within that stipulated time, the plaintiff has not approached the Court for redemption of mortgage deed and immediately after a lapse of five years, the said document is treated as sale deed which creates an absolute

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right in favour of the defendants. Under the said circumstances, I do not find any merit in the appeal to invoke Section 100 of CPC to frame substantial question of law. In the absence of substantial question of law with regard to material available on record and when the concurrent finding is given based on the material available on record, I am of the opinion that there is no merit in the appeal to admit the second appeal and frame substantial question of law.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal, I.As if any,

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do not survive for consideration and the same stand disposed of.

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Sd/JUDGE

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Mr. Y N Narasimhareddy v. Mr. Y B Sreerama Reddy

Case brief

What is this about?

What did the court decide?

Mr. Y N Narasimhareddy v. Mr. Y B Sreerama Reddy

Case brief

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