Delhi High Court
Suman Lata vs Bank Of India & Anr on 5 October, 2015
Author: Najmi Waziri
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 05.10.2015
+ CS(OS) 1290/2012
SUMAN LATA ..... Plaintiff
Through: Mr. Prabhjit Jauhar with Ms Rosemary Raju
& Ms. Aakriti Dawar, Advs.
versus
BANK OF INDIA & ANR ..... Defendants
Through: Ms. Al Moohmina Muzzammil, Adv. for D-1/SBI
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.(Open Court)
1.
This suit has been filed seeking permanent injunction, recovery
of Rs.25 lacs along with pendente lite and future interest and decree of
declaration that the equitable mortgage of the property being the entire first
and the second floor along with roof and terrace rights with common rights
and facilities and with the proportionate right of the underneath the freehold
property bearing No.48, Bhera Enclave, Paschim Vihar, New Delhi-110087
admeasuring 248.20 sq yds effected by the defendant No.2 in favour of the
defendant No.1 bank vide Hypothecation cum Loan Agreement dated
13.1.2009 is null and void and unenforceable.
2. It is the plaintiff's case that they are owners of the suit property
by way of a sale deed dated 22.8.2008 (Ex.PW1/1). The right of the
defendant No.1 to file written statement was closed on 6.12.2012.
Defendant No.2 was proceeded ex parte on 6.11.2013. He has not
represented by any counsel. On 3.11.2014, this Court had noted that in view
of the fact that the right to file WS has been closed, there is no necessity for
framing of issues. The defendant's witnesses could not have led any
evidence therefore the plaintiff's case is entirely unrebutted.
3. The learned counsel for the plaintiff would submit that insofar
as defendant No.2 has no right in the property, he could not convey a better
title than what he had. He relies upon the dicta of the Hon'ble Supreme
Court in Subudinikar & Ors. vs. Sabiti Rani Deb, 2012 (4) GLT 338, para
19 of which reads as under:
"19.When similar rights are created in favour of two
persons at different times, the one who has the advantage in
time should also have the advantage in law. This rule,
however, applies only to cases where the conflicting equities
are otherwise equal. Section 48 of the Transfer of Property
Act 1882 is founded upon the important principle that no
man can convey a title than what he has. If a person has
already effect a transfer, he cannot derogate from his grant
and deal with the property free from the rights created
under the earlier transaction. Section 48 is an absolute in
its terms and does not contain any protection or reservation
in favour of a subsequent transferee who has no knowledge
of the prior transfer."
4. According to the registered sale deed, the property stands
transferred in the name of the plaintiff, he has been in possession of the
same since the year 2008, this position is unrebutted. Therefore, claim of
the plaintiff has to be accepted. There is nothing on record to the contrary as
to why it should not be accepted. Insofar as the hypothecation-cum-loan
agreement dated 13.1.2009 has been created between the defendants apropos
the suit property of which the plaintiff is the absolute owner, the said
agreement would be of no consequence. The said Hypothecation-cum-Loan
Agreement would be null and void. It is so decreed. Decree sheet be drawn
up accordingly.
5. Ms. Al Moohnina Muzzammil, the learned counsel for
defendant No.1 would submit, upon instructions, that an internal enquiry has
been initiated pertaining to the grant of loan to defendant No.2 against the
mortgage of the suit property. Subsequent to the attachment of the property
in SARFAESI proceedings, an amount of Rs.25 lacs which was deposited by
the plaintiff would be returned to the plaintiff along with such interests as
may have accrued thereon within a period of three weeks from today by way
of a demand draft in the name of the plaintiff.
6. The suit is disposed off in the above terms.
NAJMI WAZIRI, J
OCTOBER 05, 2015/ak
