Delhi High Court
Oriental Bank Of Commerce vs M/S Ginni Plastic Industries & ... on 21 January, 2009
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Reserved on: January 9th, 2009
Date of Decision: January 21st, 2009
CM(M) 716 of 2007
Oriental Bank of Commerce ..... Petitioner
Through: Mr. Balvinder Ralhan, Advocate.
versus
M/s Ginni Plastic Industries & Ors. ..... Respondents
Through: Mr. Sonal Jain and Mr. Umesh
Chaudhary, Advocates.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the
judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest? No
JUDGMENT
MANMOHAN, J
1. The present petition has been filed by the
plaintiff/petitioner Bank under Article 227 of the Constitution of
India for quashing the order dated 26th April, 2006 whereby the
trial court has dismissed the petitioner‟s application filed under
Order VI Rule 17 of the Code of Civil Procedure, 1908
(hereinafter referred as „CPC‟).
2. In response to the respondent/defendant‟s application
seeking production of the original Sale Deed of the mortgaged
property, the petitioner/plaintiff Bank sought an amendment of its
plaint by pointing out that the property had been mortgaged only
by deposit of Partition Deed and valuation report.
3. The trial court rejected the said application for amendment
on the ground that it was being sought at a belated stage and that
too, after closure of plaintiff‟s evidence in which the plaintiff‟s
manager Mr. Ravinder Yadav, PW1 had admitted that the original
Sale Deed had been deposited with the petitioner Bank.
4. Learned counsel for the petitioner pointed out that
inadvertently in the mortgage suit filed by the petitioner Bank, it
had been mentioned that the original Sale Deed had been
deposited by the defendant/respondent No. 2. Learned counsel
for the petitioner Bank referred to a copy of the Sale Deed of the
said property which shows that the same had been purchased by
respondent No. 2 along with his brother. Learned counsel for the
petitioner Bank also referred to the Partition Deed executed
between respondent No. 2 and his brother which gave clear and
marketable title of the property to respondent No. 2.
Consequently, learned counsel for the petitioner submitted that
mortgage of the said property could never have been created by
deposit of Sale Deed as the same had been purchased in joint
name. He also referred to a copy of the Mortgage Deed on record
which clearly shows that it had been created by deposit of
Partition Deed. Learned counsel for the petitioner also referred
to the plaint and the written statement filed in the other case of
M/s Durga Industries wherein it had been clearly stated and
admitted that the mortgage had been created by only deposit of
Partition Deed. The averment of the petitioner/plaintiff Bank in
the case of Durga Industries is as under:-
"6........The details of the mortgage property are as under:-
DATE OF MORTGAGE : 24-4-1992
NAME OF MORTGAGOR : SH. BRIJ MOHAN GANDHI
NAME OF MORTGAGEE : ORIENTAL BANK OF COMMERCE
SUM SECURED : RS. 20,18,152.00
DETAILS OF PROPERTY : 34/113-A,MUKHERJEE NAGAR
EXTENSION, NEW DELHI
BOUNDED AS UNDER:
EAST - GALI
SOUTH - OTHER PROPERTY
WEST - ROAD
NORTH-PROPERTY NO. WZ-34/
113-A.
DOCUMENTS DEPOSITED :(a) Memorandum of deposit of
Title Deed dt. 24-4-92.
(b) Partition/Division Deed
relating to property WZ-
34/113, Mukherjee Nagar
Extn. New Delhi, registered in
the office of Sub-Registrar II,
Delhi at Sl. No. 7763, Addl.
Book No. 1, Volume No. 1719
on pages 151 to 154 on dated
5-6-72.
(c) Photo copy of the Sale Deed.
(d) Non Encumbrance Certificate
Dated 14-4-1992."
5. The written statement of respondent/defendant herein in
the case of Durga Industries reads as under:-
ii) .........The Defendant No. 5 agreed to
hypothecate his share of the property bearing
plot No. 113A,WZ-34, Mukherjee Part Extn.,
New Delhi and submitted copies of the
partition deed of the said property along with
site plan, valuation report of the property,
etc........"
6. Learned counsel for the petitioner submitted that reliance
on Mr. Ravinder Yadav‟s testimony would be of no avail to the
respondents as in an enquiry conducted by the Central Vigilance
Commissioner, it had been found that Mr. Ravinder Yadav had
unautorizedly and illegally sanctioned various credit facilities to a
number of companies including the respondent.
7. In response, learned counsel for the respondent/defendant
submitted that present amendment application could not be
allowed as the petitioner Bank had admittedly filed a mortgage
suit based on deposit of original Sale Deed. Learned counsel
further alleged that Manager of the petitioner‟s Bank had taken
the original Sale Deed of the property and had misused it for
advancing various loan and credit facilities to a large number of
companies owned, controlled and managed by one Mr. S.N.
Sharma and his wife. However, the relevant paragraph of the
written statement filed by the respondent/defendant in the
present suit is reproduced hereinbelow for ready reference:-
"Para No. 2 of the plaint is admitted to the
extent that the defendants approached the
plaintiff bank and sought financial assistance
for its business under the name and style of
defendant No. 1. It is also not disputed that
the plaintiff bank sanctioned limit of
Rs.5,00,000/- to the defendants. The personal
guarantee of defendant No. 4 was not
furnished by the answering defendants, and it
was arranged or manipulated by the then
Senior Manager of bank Shri Ravinder Yadav,
who was having intimate relations with
defendant No. 4, in order to cause wrongful
gain to himself and the said defendant and the
defendants were paid only a sum of
Rs.3,00,000/- against the sanctioned limit of
Rs. 5,00,000/- and a sum of Rs. 2,00,000/- was
obtained by the then Senior Manager of the
bank, and this fact was brought to the
knowledge of the Regional Office of the bank
on 4.3.1994 and also later on in reply dated
8.12.1994 and notice dated 10.12.1994.
(emphasis supplied)"
8. This Court is of the view that the petitioner Bank was
justified in seeking the present amendment as from the
mortgaged documents as well as the recovery suit filed in the
case of Durga Industries, it would be apparent that the admitted
position was that petitioner Bank was not in possession of the
original Sale Deed and that the mortgage had been created by
the defendant by deposit of only the Partition Deed.
9. Further in the opinion of this Court, reliance by the trial
court on the testimony of PW1 is clearly misconceived as from
paragraph 2 of the written statement in the present suit as well
as from the enquiry report of the Central Vigilance
Commissioner, it would be apparent that PW1 was in collusion
with the respondents/defendants and had illegally and
unauthorizedly granted loan and credit facilities to the
respondents/defendants. Consequently, this Court is of the view
that the trial court fell in error in rejecting the petitioner Bank‟s
amendment application and, therefore, the said amendment of
the plaint is allowed.
10. Consequently, the impugned order is set aside and the
present petition is disposed of in the above terms but with no
order as to costs.
MANMOHAN, J
January 21, 2009
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