The Motor And General Finance ... vs Durga Builders Private Ltd.
2002 Latest Caselaw 2178 Del

JUDGMENT

S. Mukerjee, J.

IA Nos. 6891/01 and 6892/01

1. In view of the orders passed on IA Nos. 6994-95/01 nothing survives in these applications which are accordingly disposed of as such.

IA Nos. 6994-95/01

2. These are two applications. I.A. No. 6994/01 has been preferred under Order 39, Rule 1 & 2 for restraining M/s. Sonal Developers from getting their party rights in the said property. The second application 6995/2001 is under Order 1, Rule 10 CPC for impleading M/s. Sonal Developers as defendant in view of the mortgaged property having been transferred in favor of the said party/non-applicant.

3. The brief background of facts necessary for the purpose of consideration of the present interim application may be set out for convenience of reference.

4. The plaintiff is a well reputed finance company. It is a case of the plaintiff that on the request of the Managing Director of the Defendant No. 1 (Durga Builders Ltd.) the plaintiff No. 1 provided Inter Corporate Deposits (ICD) from time to time.

5. On 11.9.95, an ICD of Rs. 2 crores was extended by the plaintiff to the defendant which was paid back on 10.1.96. At the time of availing the ICD, the defendant had created equitable mortgage of the following properties:-

16. Kanal land comprising in Khewat No. 1, Khatuni No. 9, M.No. 16 and Killa No. 16/3 (6-19), 24/3 (0-5), 25 (8-0), M.No. 17 Killa No. 11 (8-0) 20/2 (5-7), 21/1 (5-7), M.No. 19 Killa No. (7-13), M.No. 20 Kill No. 5(8-0) situated in village Islampur, District Far Idabad, Haryana.

16, Kanal of land comprised in Khewat No. 1, Khatauni No. 9, M.No. 16, Killa No. 16/3, (6-19), 24/3 (0-05), 25 (8-0), M.No. 17 Killa No. 11 (8-0), 20/2 (5-7), 21/1(5-7), M.No. 19 Killa No. 1(7-13), M.No. 22 Killa No. 5(8-0) situated in the village Islampur District Faridabad, Haryana.

Plot No. 12, Ring Road, Lajpat Nagar-IV, New Delhi.

6. The plaintiff's case is that during 1995-96 it granted number of ICDs to the defendant which subsequently stood paid of. The relevant submission of the plaintiff at para 4 of the plaint is quoted herein below:-

"The plaintiff thereafter granted various Inter Corporate Deposit to the defendant in 1995-96 and which subsequently stood paid off. On 10.1.96, and ICD of Rs. 1 crore was granted bearing interest @ 24% p.a. and which account was cleared on 10.5.96. On 6.5.96, an ICD of Rs. 1 crore was granted bearing interest @ 27% p.a. and which account was cleared on 5.10.96. On 6.9.96 an ICD of Rs. 1 crore was granted bearing interest @ 27% and which account was cleared on 10.2.97. On each occasion of granting the ICD, the equitable mortgage was created for the ICD granted to the defendant."

7. The present suit is concerned with three ICDs totalling Rs. 2.5 crore as per details given below:-

(i). Inter Corporate Deposit of Rs. 1 crore extended on 29.6.96 bearing interest at the rate of 30% per annum and interest was payable every month.

(ii) Inter Corporate Deposit of Rs. 1 crore extended on 7.2.97 bearing interest @ 27% per annum and interest payable every month.

(iii) Inter Corporate Deposit of Rs. 50 lakhs on 13.5.97 with interest @ 22% per annum.

8. The plaintiff has indicated in para 6 of the plaint the details of various cheques under which the ICDs have been extended.

9. In para 8 of the plaint, the plaintiff has also given details various on account/adhoc payment towards interest which have been made by the defendant No. 1 against these three ICDs. The statement of account have been filed on record. The total claim in the suit is Rs. 3,56,82,220/-.

10. This mortgage suit was instituted on 23.3.2001. At the time of registering of the suit interim orders were granted thereby restraining the defendant from selling, transferring or alienating or altering the sites given in relation to the three mortgaged properties referred to above.

11. The Local Commissioner was also appointed. Shri Amit Mahajan, Advocate of this Court has submitted a report dated 25.4.2001.

12. Initially application Nos. I.A. 6891-92 of 2001 had been filed for impleading S.K. Mittal. But subsequently, the present applications have been filed for impleading M/s. Sonal Developers.

13. Subsequently, on further enquiries when the plaintiff came to know that M/s. Sonal Developers had purchased the property, the present applications have been filed, the reply have been filed by Sonal Developers taking the stand that it is the bonafide purchaser for consideration and that they had made the purchase of the property after making proper enquiries and on the assurance of defendant No. 1 that the property is free from any encumbrances. It is that further case of Sonal Developers that the possession was received on 16.7.98 and the entire consideration had also been paid. It is the further case of M/s. Sonal Developers that they deposited a sum of Rs. 4,74,804/- in the office of L & DO, thereupon, issued a conveyance deed directly in favor of the Sonal Developers in relation to the said property was executed by L&DO on 24th January, 2000. It is also submitted on behalf of the Sonal Developers that defendant No. 1 had given indemnity bond that the original title papers were not traceable and also undertook to indemnify and kept it harmless. It bonafidely proceeded on the said basis.

14. Various contentions and counter contentions have been advanced by the parties, but, I do not propose to deal with the same in detail since at this stage, we are concerned with the disposal of an application under 1 Rule 10 ad for interim orders, if any, to be granted in the light of this stage of the proceedings.

15. As far as impleadment of the Sonal Developers as the defendant in the case is concerned, there can be no views about it. This being a mortgage suit and the Sonal Developers claiming a right in the mortgaged property of being a bonafide purchaser for consideration without notice, the relief claimed in the suit cannot be effectively adjudicated in the absence of M/s. Sonal Developers which is a necessary party or at least a proper party. In a mortgage suit, all those persons who claim rights adverse to the interest of the mortgagee, are most certainly proper parties if not necessary parties.

16. Next, we come to the question whether interim orders could be passed for restraining M/s. Sonal Developers from transferring or alienating the property or create any third party rights or change the status. The submission by the Ld. Counsel for the M/s. Sonal Developers, is that the said party is having a proper conveyance deed in its favor from the L & DO and is a bonafide purchaser for consideration, from as far back as the year 1998. It is further contended that the defendant No. 1 is a limited company and therefore the mortgage had to be got registered under the applicable provisions of the Companies Act before it could be enforceable. It is also submitted that mere deposit of title deeds is not sufficient. Something more is required to evidence the intention to create mortgage. It is also contended that after coming into possession of suit property M/s. Sonal Developers got fresh building plans sanctioned from MCD and thereafter old structure was demolished and new construction started, which went on for almost two years. The plaintiff never objected to said construction.

17. To my mind, the matter falls in a very narrow compass. Prima facie, the plaintiff having advanced huge amount, the present defendant (Durga Builders Limited) having deposited the title deeds that itself is a strong prima facie material to show the creation of an equitable mortgage. The version set up by M/s. Durga Builders Ltd. (existing defendant) to the effect that the ICD amount stood adjusted by alleged inter-se dealings vis-a-vis a common director of these two companies. The said version is far-fetched to say the least. There are certain other factors which also have to be taken note of. M/s. Sonal Developers claim that they purchased the property in 1998, but even in the year 2001, when the Local Commissioner visited the premises, there was no one on behalf of the Sonal Developers at the location.

18. No application came from the side of the M/s. Sonal Developers from intervening in the matter for pointing out their prior rights immediately after inspection by the L.C., which is a conduct totally incompatible with that, the claimed status of being a bonafide purchaser for consideration.

19. From the price indicated it is apparent that same is ridiculously low, as compared to the value of a large plot situated on the Main Ring Road, Lajpat Nagar.

20. In the photographs accompanying of the report filed by the Local Commissioner also, there is no indication of any name or the sign board showing name of M/s. Sonal Developers on the suit property. It is well known that one of the first things done by bona fide purchaser of immoveable property, is to immediately place his/her identity on the name plate, so that the whole world becomes aware of the person's rights. In case that obvious step is not taken, that could be only on account of some other motives.

21. Accordingly, I consider this to be a fit and proper case, for grant of ad-interim injunction restraining the said party i.e. M/s. Sonal Developers till further orders from selling, transferring or alienating or parting with the possession of the property bearing No. 12, Ring Road, New Delhi.

22. Ordinarily on the disposal of the IA under Order XXXIX, Rule 1 and 2 CPC, the orders passed are to remain in operation till the disposal of the suit. However, the facts of this case is somewhat peculiar. Injunction is sought against a party sought to be imp leaded at subsequent stage and even the pleadings have not been completed. As such the ad-interim injunction granted by this order shall be subject to appropriate consideration upon either party applying to this Court for the said purpose. One contingency easily envisaged could be that in the eventuality of Sonal Developers, not being able to sell or transfer of the property at this stage, they may lose in terms of value of the sale. For the said contingency, on application being made appropriate protection of the rights to M/s. Sonal Developers could be granted by way of making the ad-interim injunction conditional upon plaintiff furnishing guarantee or security for possible loss in value or any other appropriate security. Likewise if there is any grievance of any party regarding the use of the property during the pendency of the case, that can be appropriately made the subject matter of directions on the plaintiff's of the said aspect coming before the Court. In the above terms both the applications IA Nos. 6994/01 and 6995/01 are allowed. M/s. Sonal Developers is imp leaded as defendant No. 2. Ad-interim injunction is granted in terms of para 21 above and IA 6994/01 is disposed on the said basis subject to further observations made above. Amended memo and amended plaint be filed within a week.

S.No. 612/01

23. In view of the application for impleadment IA No. 6995/01 having been allowed and M/s. Sonal Developers is imp leaded as defendant No. 2, the said defendant is granted four weeks time to file written statement. Replication be filed within two weeks thereafter. Parties to file their original documents within the same period.

24. List for admission/denial before the Joint Registrar on 27th February, 2003.