THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY
CIVIL REVISION PETITION No.119 OF 2023
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, is filed challenging the order dated 07.11.2022 passed by the learned II Additional District Judge, Warangal, in I.A. No.317 of 2022 (old I.A. No.2646 of 2019) in O.S. No.218 of 2022 (old O.S. No.171 of 2014).
Vide impugned order dated 07.11.2022, the learned Judge has dismissed the I.A. filed by the revision petitioner herein under Order XIII Rule 3 of the Code of Civil Procedure seeking to reject Ex.A.1-Mortgage Deed.
Learned counsel for the petitioner has stated that the learned Judge failed to see that the document, which was marked as Ex.A.1 was neither stamped nor registered and therefore, the said document is liable to be rejected. Learned counsel has further stated that even though a part of the decretal amount has already been paid by them, but the same has not been taken cognizance by the Executing Court and without providing a fair opportunity, the E.P. is ordered. Learned counsel has relied on 2 the judgment of the Madras High Court in A.C. Lakshmipathy v. A.M. Chakrapani Reddiar1 in support of his contentions.
Per contra, the learned counsel for the respondent has stated that after taking into consideration the fact that the recitals of Ex.A.1 does not create any charge over the schedule property, the learned Judge has dismissed the I.A. filed by the revision petitioner for rejecting Ex.A.1 and that there is no illegality or irregularity in the impugned order warranting any interference by this Court. Hence, the learned counsel prayed to dismiss the Civil Revision Petition.
Heard and perused the record.
A perusal of the material on record, more particularly Ex.A.1 marked in O.S. No.218 of 2022 before the Court below reveals that while borrowing a sum of Rs.25,00,000/- from the respondent herein, the revision petitioner has just deposited the title deed dated 02.12.2010, which was marked as Ex.A.1, with the respondent-Plaintiff and absolutely no interest of any kind over the property was created or transferred under Ex.A.1. When that be so, the document under Ex.A.1 need not be registered compulsorily.
1 2001 (3) LJR 511 3 While dealing with a similar situation, the Hon'ble Supreme Court in State of Haryana v. Narvir Singh2, has held as under:
"11. A mortgage inter alia means transfer of interest in the specific immovable property for the purpose of securing the money advanced by way of loan. Section 17(1)(c) of the Registration Act provides that a non-testamentary instrument which acknowledges the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest, requires compulsory registration. A mortgage by deposit of title deeds in terms of Section 58(f) of the Transfer of Property Act surely acknowledges the receipt and transfer of interest and, therefore, one may contend that its registration is compulsory. However, Section 59 of the Transfer of Property Act mandates that every mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument. In the fact of it, in our opinion, when the debtor deposits with the creditor title deeds of the property for the purpose of security, it becomes a mortgage in terms of Section 58 (f) of the Transfer of Property Act and no registered instrument is required under Section 59 thereof as in other classes of mortgage. The essence of a mortgage by deposit of immovable property with the intention that those documents shall constitute security, enabling the creditor to recover the money lent. After the deposit of the title deeds the creditor and borrower may record the transaction in a memorandum but such a memorandum would not be an instrument of mortgage. A memorandum reducing other terms and conditions with regard to the deposit in the form of a document, however, shall require registration under Section 17 (1)(c) of the Registration Act, but in a case in which such a document does not incorporate any term 2 (2014) 1 SCC 105 4 and condition, it is merely evidential and does not require registration."
Moreover a plain reading of the document under Ex.A.1 reveals the endorsement "meeku nammakam korakai undutaku gaanu", which makes is clear that only for the purpose of having trust, the title documents are deposited.
For the afore-stated reasons and in view of the law laid down by the Hon'ble Supreme Court in Narvir Singh (referred supra), the present Civil Revision Petition is liable to be dismissed and is accordingly dismissed.
Miscellaneous Applications, if any, pending in the revision shall stand closed. No order as to costs.
____________________ A. ABHISHEK REDDY, J Date : 13-02-2023 sur