Delhi High Court
Leelawati vs Oriental Bank Of Commerce & Ors. on 9 September, 2008
Author: Pradeep Nandrajog
30
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 338/2007
LEELAVATI ..... Appellant
Through : Mr. R.P. Vats, Advocate.
versus
ORIENTAL BAN K OF COMMERCE
& ORS. ..... Respondents
Through : Mr. S.K. Chaudhry, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers
may be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Trial Court record has been perused.
2. Since learned counsel for the parties desire a final
hearing at admission stage, we have heard learned counsel at
length and are disposing of the appeal finally.
3. Appellant is the wife of Satya Narain Sharma.
4. Satya Narain Sharma carries on business as Sole
Proprietor of M/s. Sanjay Plastic Udyog.
5. In the name of his sole proprietary firm, Satya Narain
Sharma availed various credit facilities from Oriental Bank of
Commerce. To secure repayment of the outstanding amounts,
appellant agreed to stand guarantee and also mortgage her
property bearing House No. WZ-51, (in Khasra No. 42) Old Lal
Dora Abadi of Village Possangipur, New Delhi.
6. On 25th September, 1999, appellant deposited with the
bank the title deed of the said property. According to the
bank she also executed various documents in her capacity as a
guarantor.
7. M/s. Sukraya Industries, another firm, had likewise
availed various credit facilities from the same bank, that is,
Oriental Bank of Commerce and in respect of said credit
facility, appellant had stood as guarantor and had created an
equitable mortgage of the same property, i.e., House No. WZ-
51, (in Khasra No. 42) Old Lal Dora Abadi of Village
Possangipur, New Delhi.
8. Outstanding debts payable by M/s. Sukarya Industries
being more than Rs.10 lakhs and the account becoming sticky,
the bank resorted to proceeding for recovery before the Debt
Recovery Tribunal under Recovery of Debts Due To Banking
and Financial Institutions Act, 1995.
9. The account of M/s. Sanjay Plastic Udyog also become
sticky but since money due and payable was less than Rs. 10
lakhs a suit for recovery was filed by the bank in the Court of
Learned District Judge.
10. The appellant stated in her written statement that she
was an illiterate house wife and that she never executed any
document relied upon by the bank. She denied having created
any equitable mortgage. Another defence was taken under
Section 67A of the Transfer Property Act, 1882. Defence was
that the bank was obliged to file a single suit to enforce the
mortgage in relation to the transaction with M/s. Sanjay
Plastic Udyog and M/s. Sukarya Industries.
11. At the trial, the bank proved letter dated 25.9.1999
executed by the appellant while depositing the title deed of
her property as Ex.P.W.2/10. No due certificate, Ex.P.W.2/11
issued by appellant and an affidavit Ex.P.W.2/12 relating to
the property and executed by the affidavit were also proved.
The title deed of the mortgaged property was proved as
Ex.P.W.2/13. The bank also proved that the cash credit
(hypothecation) limit which was originally sanctioned in sum
of Rs.1,50,000/- was enhanced to Rs. 3 lakhs and vide
Ex.P.W.2/25 the appellant had given her consent to the
enhancement of the cash credit facility. A certificate dated
15.03.2000 executed by the appellant pertaining to no due
against the mortgaged property was proved as Ex.P.W.2/26. It
was proved that vide Ex.P.W.2/33, on 12.12.2001, the
appellant had agreed to extend the mortgage in respect of a
credit facility granted to M/s. Sukarya Industries.
12. The loan application duly signed by the husband of the
appellant and consigned by the appellant as a guarantor was
proved as Ex.P.W.2/1. The agreement for guarantee signed by
the appellant was proved as Ex.P.W.2/9.
13. With reference to the loan availed of by the sole
proprietary firm of the appellant's husband and the proved
documents, the Learned Trial Judge has concluded that the
bank has successfully proved that the husband availed a cash
credit limit and wife, i.e., the appellant stood as a guarantor
and had mortgaged her house.
14. The finding returned by the Learned Trial Judge is as
follows: -
a) That Section 67A of the Transfer of Property Act is not
attracted where two different Courts have jurisdiction
to entertain a plaint relating to two different loans.
b) That the documents on record establish appellant
having stood as guarantor and having mortgaged the
subject property.
c) The amount outstanding shown in the accounts
maintained by the bank was due and payable by the
husband of the appellant and hence mortgage decree
as prayed was liable to be passed.
15. In appeal it is urged that the appellant stated in her
testimony that she was totally dependent on others even for
her personal work like changing clothes etc. and therefore the
finding returned that the appellant had executed various
documents when loan was availed of is incorrect.
16. No other plea has been urged at the hearing today.
17. Concentrating on the plea urged at the hearing today, it
would be noted that the appellant has not explained as to how
the title deed of her property came in possession of the bank if
she had not executed the documents relating to the guarantee
and the mortgage.
18. Learned counsel for the appellant urges that the title
documents of the house were in custody of the husband of the
appellant and he has misused the same.
19. To a question, whether the appellant has initiated
criminal proceeding against her husband, obvious answer has
been given, i.e., 'No. In India no wife would prosecute her
husband.'
20. We note that the appellant has not projected a case
before the Learned Trial Judge that her husband has belied
her trust.
21. Thus, we have no hesitation to conclude that the view
taken by the Learned Trial Judge is correct.
22. We note that the Learned Trial Judge has granted six
months time to the defendants of the suit to pay the amount
decreed failing which the same shall be recovered from the
sale proceeds of the mortgaged property as per law.
23. Since the appeal is being disposed of today, we extend
the period of six months granted by the Learned Trial Judge
directing that the said time would commence with effect from
today.
24. The appeal is dismissed with cost in favour of the
respondent.
25. TCR be returned.
PRADEEP NANDRAJOG, J
J.R. MIDHA, J
SEPTEMBER 09, 2008
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