Delhi High Court
Haryana Financial Corporation vs Anoop Singh on 7 December, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% 7th December, 2011
+ RFA 271/2003
ANOOP SINGH ..... Appellant
Through : Mr. Shailender Dahiya, Advocate.
versus
HARYANA FINANCIAL CORPORATION ..... Respondent
Through : Mr. G.S. Raikhy, Advocate.
And
+ RFA 344/2003
HARYANA FINANCIAL CORPORATION ..... Appellant
Through : Mr. G.S. Raikhy, Advocate.
versus
ANOOP SINGH ..... Respondent
Through : Mr. Shailender Dahiya, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. These are two appeals, filed by the plaintiff and the defendant
respectively, against the impugned judgment of the Trial Court dated
2.12.2002. By the impugned judgment, the Trial Court held that the
RFA No. 271, 344 of 2003 Page 1 of 4
mortgaged shops have been validly mortgaged to the financial institution,
namely, Haryana Financial Corporation / defendant for recovery of dues.
2. The impugned judgment has also by reference to the mortgage
documents held that mortgage was only of the shop Nos. 3 and 4, and there
was no mortgage of the basement mentioned in the mortgage documents. It
was therefore consequently held that the defendant/Haryana Financial
Corporation has no rights to the basement.
3. The facts of the case are that the appellant in RFA No.271/2003 and
the plaintiff in the suit, prayed for a declaration to the effect that the
mortgage of shop Nos. 3 and 4 and basement situated in khasra No.66/1,
village Mangolpur Kalan, Delhi executed by Ms. Sunita, the sole partner of
M/s Bhawna Home Furnishing was null and void because the subject shops
formed part of a larger joint family property which was never partitioned,
and therefore, the specific shops could not have been mortgaged to the
defendant in the suit. Ms. Sunita is the daughter of Sh. Labh Singh
Chaudhary; brother of the plaintiff.
4. The Trial Court has held that there was a valid mortgage with respect
to shop Nos. 3 and 4, and to which finding I also agree inasmuch as it is not
disputed that the suit property as a whole belonged to two brothers, namely,
Sh. Anoop Singh (plaintiff) and the father of Ms. Sunita, Sh. Labh Singh
RFA No. 271, 344 of 2003 Page 2 of 4
Chaudhary. Sh. Labh Singh Chaudhary had transferred rights in the shop
Nos. 3 and 4 by means of certain documentations, and pursuant to which the
defendant / Haryana Financial Corporation accepted the mortgage created
with respect to shop Nos. 3 and 4. During the course of hearing of the
appeal, counsel for the appellant stressed only one aspect that without actual
partition, since the subject shops have been mortgaged in favour of the
defendant / Haryana Financial Corporation, it should be observed by this
Court that when there is an actual partition between the plaintiff / Sh. Anoop
Singh and brother-Sh. Labh Singh Chaudhary, then Sh. Labh Singh
Chaudhary will get a lesser value on such partition and it will be presumed
that for the value of the share to be allocated to Sh. Labh Singh Chaudhary,
he already has received towards that share the value of the shop Nos.3 and 4.
5. Accordingly, so far as RFA No.271/2003 is concerned, it is disposed
of with the observation that whenever there is a partition of the property,
which is said to be of about 2,000 sq. yds, of Sh. Anoop Singh and Sh. Labh
Singh Chaudhary, situated in khasra No.66/1, village Mangolpur Kalan,
Delhi, then, the appellant / plaintiff, on establishing that he has otherwise
received no earlier share, will have a larger share from the balance portion of
the property excluding the shop Nos. 3 and 4 i.e. the share which will
already be deemed to be allocated to Sh. Labh Singh Chaudhary and who
RFA No. 271, 344 of 2003 Page 3 of 4
will thus be entitled to a lesser share considering that with respect to his
share, Sh. Labh Singh Chaudhary already has taken ownership rights of the
subject shop Nos. 3 and 4.
6. So far as RFA No.344/2003 is concerned, counsel for the appellant /
Haryana Financial Corporation, could not seriously dispute that in the
mortgage documents, what is mortgaged are only the shop Nos. 3 and 4, and
there is no mention of the mortgage of the basement. If that be so, mortgage
would only be valid with respect to the shop Nos. 3 and 4 and not with
respect to the basement under the shops. Merely because a valuation report
was given which included the shops and the basement, would not mean that
basement would also be mortgaged inasmuch as it is very much possible that
the basement may have been originally intended to be mortgaged, however,
the same would not have been mortgaged, inasmuch as, the mortgage
documents reflect mortgage of only of shop Nos. 3 and 4.
7. The appeals are disposed of in terms of the aforesaid directions.
Parties are left to bear their own costs. Trial Court record be sent back.
VALMIKI J. MEHTA, J.
DECEMBER 7, 2011
dk
