Syndicate Bank vs Sunder Lal Taneja & Sons And Ors.
1997 Latest Caselaw 813 Del

JUDGMENT

K.S. Gupta, J.

(1) Defendants have filed this application under Section 151 Civil Procedure Code seeking direction for return of the title deed of property bearing No. 9/60, Punjabi Bagh, New Delhi, by the plaintiff-Bank, on their securing the suit amount or any amount which may be ultimately found due from them.

(2) Needless to say that the plaintiff-Bank has contested the application by filing reply.

(3) Submission advanced by Shri Ravinder Sethi appearing for the defendants was that his client is ready to furnish bank guarantee or place FDRs at the disposal of the Court for the suit amount besides giving security for the balance amount for return of the title deed in question by the plaintiff-Bank. Admittedly plaintiff-Bank has filed suit under Order Xxxiv Civil Procedure Code against the defendants and para 21 of the prayer clause made in the plaint which is relevant reads as under:

"PRAYER:

1.It is, therefore, most respectfully prayed that:

(A)That this Hon'ble Court be pleased to pass a decree in favour of the plaintiff and against the defendants for recovery of Rs. 8,15,947/11P together with interest pendente lite and future at the rate of 18.5% per annum with quarterly rests and costs of the suit;

(B)That preliminary decree under Order Xxxiv Rule 4 Civil Procedure Code be passed in favour of the plaintiff and against the defendants and against the immovable property commonly known as 9/60, Punjabi Bagh, New Delhi, fully described hereinbefore and the said property be ordered to be sold for realisation of the amount due with interest;

(C)That in case the sale proceeds of the mortgaged property are found insufficient to satisfy the decree passed by this Hon'ble Court, then liberty be reserved to the plaintiff to apply for and obtain a personal decree for the balance amount against the defendants;

(D)Such other relief be granted as this Hon'ble Court may deed fit and proper in the facts and circumstances of the case."

(4) As is manifest from the said prayer clause, plaintiff-Bank has sought decree for the suit amount etc. against defendants 2 & 3, who are alleged to be partners of defendant No. 1 firm personally and also preliminary decree under Order Xxxiv Rule 4 Civil Procedure Code in respect of immovable property No. 9/60, Punjabi Bagh, regarding which equitable mortgage by deposit of title deed was created by the defendants in favour of the plaintiff-Bank at the time of taking of loan. Therefore, in case the title deed is returned to the defendant, no preliminary decree under Order Xxxiv Civil Procedure Code can be passed in respect of aforesaid property No. 9/60 if the suit of the plaintiff-Bank is ultimately decreed by the Court. That apart, under Rule 5 of Order Xxxiv Civil Procedure Code title deed of the mortgaged property can be returned only after a preliminary decree is passed and payment of all the amounts due from the defendants under sub-rule (1) of Rule 4 is made to the plaintiff. No order for return of title deed in question can be made at this stage to the detriment of the interests of the Bank.

(5) Application is, therefore, dismissed.