Dismissed

Nanjundashetty Dead by Lrs v. Sri. N. Suresh

Karnataka HC21 Dec 2023RSA/1371/2022

Case brief

AI extract

What is this about?

In a second appeal regarding redemption of mortgage, the Single Judge held that the plaintiff is entitled to seek redemption as the defendant indirectly acknowledged the mortgage transaction by setting up a subsequent agreement. The appeal was dismissed.

What did the court decide?

The suit for redemption of mortgage is decreed; defendant is directed to receive the mortgage amount and execute redemption mortgage.

Nanjundashetty Dead by Lrs Vs Sri. N… — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:46840 RSA No. 1371 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1371 OF 2022 (RES)

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BETWEEN:

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NANJUNDASHETTY DEAD BY LRS

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SMT. CHIKKATHAYAMMA, W/O LATE NANJUNDASHETTY, AGED ABOUT 53 YEARS

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SMT RATHNAMMA D/O LATE NANJUNDASHETTY, AGED ABOUT 36 YEARS

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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SRI MAHADEVASWAMY S/O LATE NANJUNDASHETTY, AGED ABOUT 34 YEARS

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ALL ARE RESIDING AT UPPARA STREET, BANDIGERE VILLAGE, CHAMARAJANAGAR TOWN-571313.

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…APPELLANTS

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(BY SMT. VAKKUND SONATAI GANAPATRAO, ADVOCATE)

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AND:

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SRI. N. SURESH

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S/O LATE N NAGESH RAO, AGED ABOUT 57 YEARS, RESIDING AT 1^ST CROSS,

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NC: 2023:KHC:46840 RSA No. 1371 of 2022

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BRAMARAMBHA EXTENSION, CHAMARAJANAGAR-571313.

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…RESPONDENT

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(BY SRI. PRITHVI RAJ B N, ADVOCATE FOR C/R)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 23.06.2022 PASSED IN RA.No.97/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHAMARAJANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.08.2015 PASSED IN OS No.51/2012 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC CHAMARAJANAGAR.

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THIS APPEAL, COMING ON FOR ADMISSIOIN, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is by defendant who

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has challenged the judgments rendered by both the Courts wherein plaintiff’s suit seeking redemption of mortgage is decreed by both the Courts.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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The facts leading to the case are as under:

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Plaintiff has instituted suit in O.S.No.51/2012 seeking

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redemption of mortgage. Plaintiff claimed that plaintiff

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3 - NC: 2023:KHC:46840 RSA No. 1371 of 2022

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and his mother availed a hand loan of Rs.2,00,000/- and mortgaged the suit schedule property in favour of defendant through registered mortgage deed dated 29.07.2002 and delivered possession of the suit schedule properties to the defendant. Plaintiff further alleged that period of mortgage is six years and same expired on 29.07.2008. Plaintiff further pleaded that his mother passed away and he being a sole survivor has become absolute owner of the suit schedule property and after expiry of mortgage period, plaintiff called upon the defendant to accept the mortgage amount and redeem the mortgage. Inspite of repeated request, defendant failed to execute redemption of mortgage and this compelled plaintiff to issue notice on 09.01.2012 calling upon the defendant to discharge the mortgage by accepting mortgaged amount. Since defendant issued a reply notice on untenable grounds, suit is filed seeking redemption of mortgage.

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4 - NC: 2023:KHC:46840 RSA No. 1371 of 2022

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Defendant, on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant on the contrary claimed that he is in possession of the property much prior to alleged transaction and claimed that his father was in continuous possession and enjoyment for more than 60 years. Defendant claimed that his father has paid Rs.30,00,000/- to the plaintiff’s father and therefore, plaintiff’s father in presence of his mother has executed a panchayath agreement dated 29.07.2002 acknowledging defendant’s father’s possession

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over the suit schedule property and under the said agreement, plaintiff agreed to sell the suit schedule property. Disputing the mortgage transaction, defendant sought for dismissal of the suit.

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Plaintiff and defendant to substantiate their respective claim have let in oral and documentary evidence. Plaintiff while seeking redemption of mortgage

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5 - NC: 2023:KHC:46840 RSA No. 1371 of 2022

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has produced the original mortgage deed which is marked at Ex.P-8.

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Defendant who has seriously disputed alleged mortgage transaction and since plaintiff has disputed agreement set up by defendant, while cross-examining the plaintiff, confronted the agreement dated 22.08.2013 and since plaintiff has admitted the agreement dated 22.08.2013, the same was marked at Ex.D-1.

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Trial Court having assessed oral and documentary evidence let in by rival parties, answered issue Nos.1 to 5 in the affirmative. While answering issue No.1 in the affirmative, trial Court held that plaintiff has succeeded in proving that he along with his mother borrowed a sum of Rs.2,00,000/- from defendant and mortgaged the suit schedule property by executing registered mortgage deed dated 29.07.2002. While answering issue Nos.3 and 4 in the affirmative, trial Court held that defendant inspite of legal notice has declined to execute discharge mortgage deed and therefore, plaintiff

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NC: 2023:KHC:46840 RSA No. 1371 of 2022

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is entitled for relief sought in the plaint. Consequently, suit is decreed.

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Defendant feeling aggrieved by the judgment and decree of the trial Court preferred appeal before the appellate Court.

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Appellate Court as a final fact finding authority has independently assessed oral and documentary evidence and has also given its due consideration to the pleadings of the rival parties. While reassessing the entire evidence on record, appellate Court has taken cognizance

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of the agreement relied on by the defendant which is marked at Ex.D-1. Referring to Ex.D-1, appellate Court was of the view that even if agreement set up by defendant is proved that will not take away the right of plaintiff in seeking redemption of mortgage.

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Appellate Court placed reliance on the judgment rendered by the Punjab and Haryana High Court in the case of Ram Kishan and Others vs. Sheo Ram and

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7 - NC: 2023:KHC:46840 RSA No. 1371 of 2022

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Others reported in AIR 2008 P&H 77 . Referring to the

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principles therein, appellate Court was of the view that where no time limit is fixed to seek redemption, the right to seek redemption would arise not on the date of mortgage but would arise when the mortgagor pays or tenders to the mortgagee or deposits in the Court, the mortgage money. Appellate Court also placing reliance on the said judgment held that once a mortgage is always a mortgage and is always redeemable. On independent assessment, appellate Court proceeded to confirm the reasons and conclusions recorded by the trial Court. Consequently, appeal is dismissed. These concurrent judgments are under challenge.

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Learned counsel appearing for the defendant reiterating the grounds would vehemently argue and contend that plaintiff is liable to be non-suited as he has not examined any witness to substantiate the due execution of the alleged mortgage transaction. She would contend that since defendant has stoutly denied the very

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8 - NC: 2023:KHC:46840 RSA No. 1371 of 2022

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mortgaged transaction, it was incumbent on the part of plaintiff to examine one witness to substantiate the genuineness of mortgage transaction. Reliance is placed on the judgment rendered by the coordinate Bench in the case of Syndicate Bank vs. M. Sivarudrappa and Others¹ . Referring to the principles laid down by coordinate Bench, she would point out that if attesting witness is not examined, more particularly when the other party has disputed the very mortgage transaction, both the Courts erred in decreeing the suit. On this sole count, she would point out that the findings and conclusions recorded by both the Courts suffer from serious perversity and therefore, substantial question of law would arise for consideration in the light of principles laid down by the coordinate Bench in the judgment cited supra.

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On the contrary, learned counsel appearing for the plaintiff would counter the proposition canvassed by the learned counsel appearing for the defendant. He

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1 ILR 2003 Kar 908

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9 - NC: 2023:KHC:46840 RSA No. 1371 of 2022

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would point out that the fact that defendant has set up an agreement which was confronted and marked at the instance of plaintiff in cross-examination as Ex.D-1, it indirectly leads to admission of a mortgage transaction. He would equally counter the arguments canvassed by the learned counsel for defendant in regard to alienation of other land covered under the very same transaction. He would say that the said defence is not available to the defendant as defendant has signed as a consenting party to the sale deed. Therefore, he would point out that even if the other item of mortgage transaction was sold, it was

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sold after securing possession from defendant and defendant being a consenting witness to the said sale transaction, is clearly estopped from disputing not only mortgage transaction but the right of plaintiff to seek redemption.

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Heard learned counsel appearing for the defendant and learned counsel appearing for the plaintiff.

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10 -

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NC: 2023:KHC:46840 RSA No. 1371 of 2022

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The short point that needs consideration is as to

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whether plaintiff is entitled to seek redemption of mortgage having failed to examine the attesting witness as there is serious challenge by defendant questioning the very mortgage transaction. My answer is emphatically ‘No’.

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Though defendant has seriously disputed the

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mortgage transaction and a specific contention is taken in the written statement, however, during trial, defendant having set up a contemporaneous document dated 22.08.2013, which is marked at Ex.D-1, would clinch the entire controversy. Under the agreement dated 22.08.2013, defendant has claimed that plaintiff on the same day has executed an agreement agreeing to sell the land which was already mortgaged to the defendant on the same day. If the recitals of the agreement refer to a mortgage transaction, mere denial in the written statement would be of no avail to defendant. If defendant by setting up an agreement dated 22.08.2013 has

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indirectly acknowledged and admitted the mortgage transaction, the principle laid down by this Court in the above cited judgment is not applicable. The facts in the present case on hand are totally different. The defendant by setting up an agreement has virtually admitted the mortgage transaction. Therefore, I am of the view that both the Courts were justified in decreeing the suit and thereby ordering redemption of mortgage. Both the Courts were justified in directing defendant to receive the mortgage amount and execute redemption mortgage in favour of plaintiff.

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No substantial question of law arises for

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consideration. Accordingly, appeal is dismissed.

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Sd/JUDGE

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List No.: 1 Sl No.: 19

Nanjundashetty Dead by Lrs v. Sri. N. Suresh

Case brief

What is this about?

What did the court decide?

Nanjundashetty Dead by Lrs v. Sri. N. Suresh

Case brief

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What did the court decide?

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