In second appeals against the dismissal of a suit filed to recover a mortgage amount and a suit challenging that deed, the single judge dismissed the appeals, upholding the validity of the registered mortgage and the accrual of cause of action.
Both regular second appeals were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.6001 of 2014 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) RSA No.6001 of 2014 (O&M) Date of Order:18.04.2018
Naresh Kumar and others
..Appellants
Versus
M/s Jyoti Parshad Anil Kumar
(2) RSA No.2 of 2015(O&M)
Naresh Kumar and others
..Appellants
Versus
M/s Jyoti Parshad Anil Kumar
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Fateh Saini, Advocate, for the appellants.
Ms. Nupur Choudhary, Advocate, for the respondent.
ANIL KSHETARPAL, J.
Defendants-appellants are in the regular second appeals against the concurrent findings of fact arrived at by the courts below while deciding inter-parties suits regarding the same dispute.
Counsel for the parties are agreed that both the cases can be disposed of by a common judgment.
It is a case where the defendants-appellants along with their predecessors have tried to play fraud with the plaintiff. Late Sh. Ajmer Singh predecessor-in-interest of the defendants-appellants was owner of 49
Naresh Kumarkanals and 2 marlas of land. He suffered a consent decree with regard to the 2018.05.01 13:20 I attest to the accuracy and integrity of this document Chandigarh
RSA No.6001 of 2014 (O&M) -2-
aforesaid land in favour of his wife and children on 10.08.1988, however, mutation of the consent decree was not sanctioned in favour of the defendants-appellants. In other words, revenue record was not got updated. Thereafter, late Sh. Ajmer Singh recorded as a owner in the revenue record, mortgaged the land against loan of Rs.7,00,000/- vide registered mortgage deed dated 14.08.2001. It was provided in the mortgage deed that possession would remain with the mortgager, however, the mortgager shall be liable to pay interest @ 2% per month from the date of mortgage. It was further provided that in case the interest, which was payable after a period of 6 months is not paid, the same shall become part of the principal. After the mortgage deed had been executed and registered, mutation of the consent decree dated 10.08.1988 was got sanctioned on 19.07.2002.
Plaintiff-respondent filed a suit for recovery of the amount dated 15.06.2009.
On the other hand, defendants-appellants filed another suit challenging the validity of the aforesaid mortgage deed dated 14.08.2001. The suit filed by the defendants-appellants challenging the mortgage deed was dismissed. Appeal filed by them also met with the same result. One appeal has been filed against the aforesaid judgment.
In the suit for recovery of the mortgaged amount, the defendants-appellants pleaded that the mortgage was outcome of fraud.
Both the court after appreciation of the evidence available on the file have found that the mortgage deed, which is registered, is a genuine document and late Sh. Ajmer Singh had borrowed a sum of Rs.7,00,000/through the mortgage deed.
I have heard learned counsel for the parties at length and with
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RSA No.6001 of 2014 (O&M)
their able assistance gone through the judgments passed by the courts below in both the suits as well as the record.
Learned counsel for the appellants has made the following
submissions:-
On the other hand, learned counsel for the respondent-plaintiff has submitted that in the mortgage deed, which is a registered document, it is stated that the mortgage amount shall be received before the subRegistrar. She has further drawn attention of the Court to the endorsement recorded by the sub-Registrar wherein receipt of payment of Rs.7,00,000/in the presence of the sub-Registrar has been admitted. She has further drawn attention of the Court to Article 62 of the Schedule attached to the
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RSA No.6001 of 2014 (O&M)
Limitation Act, 1963 and has submitted, to enforce payment of the money secured by a mortgage, the period of limitation is 12 years. Hence, she submitted that the judgments passed by the courts below do not require any interference. She has also brought attention of the court to mutation of the consent decree passed in the year 1988 was got sanctioned on 19.07.2002 and contended that for the first time after the mortgage deed had been registered, entry was made in the revenue records in favour of the defendants-appellants.
As regard first argument of learned counsel for the appellants, on limitation, Article 62 of the Limitation Act, 1963 is clear. The limitation is 12 years in case the suit is filed to enforce payment of money secured by a mortgage. In the present case, plaintiff while filing the suit has specifically stated that the amount was secured by a mortgage. Details of the mortgage deed were given in paragraphs 3 and 4 of the plaint and the suit for recovery was filed to enforce payment of the amount secured by a mortgage.
Still further a reading of the mortgage deed proves that no period for redemption of the mortgage was stipulated. It was at the wish of the mortgager. It has been pleaded in the plaint that cause of action accrued to the plaintiff on 10.06.2009 when the defendants refused to pay the amount. Learned counsel for the appellants has relied upon a judgment passed by the Bombay High Court reported as State Bank of India v.Ramkrishna J. Sakharkar and another, 2006(3) RCR(Civil), 194 , to contend that if a loan is secured by creating a charge on immovable property, the limitation would be 3 years and not 12 years. In the aforesaid judgment, Hon'ble Bombay High Court had noted in paragraph 12 that the suit was not filed on the basis of charge created. A reading of the entire
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RSA No.6001 of 2014 (O&M)
plaint proves that it was a simpliciter suit for recovery based on accounts. In such situation, the aforesaid judgment would not help the appellant.
Even otherwise, as noted earlier the mortgage deed did not stipulate any period for redemption and it was at the wish of the mortgager. It has been pleaded that the cause of action accrued to the plaintiff on 10.06.2009, whereas the suit was filed on 15.06.2009. Hence, there is no force in the first argument of learned counsel.
Next argument of learned counsel for the appellants is that the payment has not been proved.
The argument is just to be noticed and rejected. The mortgage deed is available on the record. As per the mortgage deed, the payment was to be received before the sub-Registrar. Endorsement before the subRegistrar proves that the payment was duly received by the mortgager and acknowledged in the presence of the sub-Registrar. The mortgage deed is thumb marked by late Sh. Ajmer Singh. The mortgage deed is a registered document which has presumption of genuineness.
Next argument of learned counsel is that since the plaintiffrespondent had admitted that this amount was not reflected in the income tax record, therefore, the suit for recovery would not be maintainable.
Even this argument of learned counsel has no substance. Learned counsel for the appellants could not point out any provisions of the Income Tax Act which debars recovery of the amount of loan if the amount is not reflected in the income tax record.
Next argument of learned counsel for the appellants is that books of accounts have not been produced and, therefore, as per Section 34 of the Indian Evidence Act, recovery suit would not be maintainable.
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RSA No.6001 of 2014 (O&M)
In the considered opinion of this Court, the argument is fallacious. The present suit is not filed on the basis of account books. The suit is filed for recovery of the amount and enforcement of the claim on the basis of a registered mortgage deed.
Last argument of learned counsel for the appellant is that Issue no.10 which was subsequently framed by the court has not been decided.
At the outset, it must be noticed that the learned counsel for the appellants has admitted that this argument was never raised or pressed before the first appellate court. In any case, issue no.10 is on the cause of action. Both the courts while deciding the issue of limitation have found that the cause of action accrued to the plaintiff on 10.06.2009. This court has also noticed that fact. It is not in dispute that the mortgage deed did not had any period of redemption, it was on the wish of the mortgager. Such being the position, the issue of cause of action has already been decided by the courts below.
In view thereof, there is no good ground to interfere with the concurrent findings of fact arrived at by the courts below.
Both the regular second appeals are dismissed.
April 18, 2018 (ANIL KSHETARPAL) nt JUDGE Whether speaking/reasoned : Yes/No Whether reportable : Yes/No
Naresh Kumar 2018.05.01 13:20 I attest to the accuracy and integrity of this document Chandigarh
2 issues framed by the court
Whether a suit to enforce payment secured by a mortgage is barred by limitation when no redemption period was stipulated.
Whether lack of payment reflection in income tax records or absence of books of account renders a mortgage recovery suit unmaintainable.
Colour shows how this judgement treated each authority
State Bank of India v. Ramkrishna J. Sakharkar and anotherReferred¶46
State Bank of India v. Ramkrishna J. Sakharkar and another, 2006(3) RCR(Civil), 194
Naresh Kumar and others
M/s Jyoti Parshad Anil Kumar
Anil Khetarpal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
