Dr. Narayana Pisharadi vs Stancash Chits (P) Ltd
2022 Latest Caselaw 4800 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE V.G.ARUN
    FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
                      OP(C) NO. 1111 OF 2021
           (OS 4/2021 OF PRINCIPAL SUB COURT   THRISSUR)
PETITIONER/S:

    1       DR. NARAYANA PISHARADI
            AGED 65 YEARS
            S/O.LATE DR.SAROJINI PISHARASSIAR, KATTUR PISHARATH
            VEETTIL, SHORNUR ROAD, THRISSUR VILLAGE, DESOM,
            THRISSUR TALUK.
    2       JAYA NARAYANAN
            AGED 59 YEARS
            W/O.DR.NARAYANAN PISHARADI, KATTUR PISHARATH
            VEETTIL, SHORNUR ROAD, THRISSUR VILLAGE, DESOM,
            THRISSUR TALUK.
    3       ROHITH PISHARADI
            AGED 35 YEARS
            S/O.DR.NARAYANAN PISHARADI, KATTUR PISHARATH VEETIL,
            SHORNUR ROAD, THRISSUR VILLAGE, DESOM, THRISSUR
            TALUK.
    4       ABHIJITH PISHARADI
            AGED 31 YEARS
            S/O.DR.NARAYANAN PISHARDI, KATTUR PISHARATHVEETIL,
            SHORNUR ROAD, THRISSUR VILLAGE, DESOM, THRISSUR
            TALUK NOW EMPLOYED AT U.A.E. REPRESENTED BY HIS
            POWER OF ATTORNEY HOLDER ROHITH PISHARADI, THE THIRD
            PETITIONER (P.A.DEED PRODUCED EXT.P1).
            BY ADVS.
            N.M.MADHU
            C.S.RAJANI

RESPONDENT/S:

            STANCASH CHITS (P) LTD.
            REGD. OFFICE CHEMBUKAVU VILLAGE,COLLEGE ROAD,
            THRISSUR TALUK, REP. BY LITIGATION CLERK, BABU M.,
            AGED 57 YEARS, S/O.ANTONY, MANJALI HOUSE, MAHATMA
            STREET, OLLUKKARA, THRISSUR, PIN- 680 655.
            BY ADVS.
            LIJI.J.VADAKEDOM
            RAJEEV JYOTHISH GEORGE
            TOM E. JACOB
            REXY ELIZABETH THOMAS

        THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09.11.2021,
THE COURT ON 29.04.2022 DELIVERED THE FOLLOWING:
 O.P.(C) No.1111 of 2021

                                     -2-



                              JUDGMENT

Dated this the 29th day of April, 2022

The petitioners are defendants 3 to 6 in

O.S.No.4 of 2021 pending on the files of the

Principal Sub Court, Thrissur. The first

respondent herein has filed the suit seeking a

decree for recovery of an amount of

Rs.57,50,000/- with 18% interest from the

defendants, charged on the plaint schedule

property. As per the averments in the plaint,

defendants 1 and 2 had joined a kuri conducted by

the plaintiff and had availed the prized kury

amount after executing necessary documents.

Later, when the plaintiff demanded more security

for the amount, the title deed of the first

petitioner was deposited and an equitable

mortgage created by deposit of title deeds.

Defendants 1 and 2 are not made parties to this

original petition. The first petitioner is the O.P.(C) No.1111 of 2021

third defendant in the suit. Petitioners 2 to 4

are arrayed as defendants 4 to 6, alleging that,

subsequent to the deposit of title deeds, first

petitioner had created a settlement deed in their

favour. The petitioners' case before the trial

court is that the third respondent is suffering

from bipolar disease and had entered into a sale

agreement with one Hammeed. Although the

agreement was terminated subsequently, the title

handed over to Hammeed during the subsistence of

the agreement was not returned. The plaintiff in

collusion with Hammeed had filed the suit on the

strength of that document. According to the

petitioners, the first petitioner had not

deposited any title deed or created equitable

mortgage with respect to the plaint schedule

property.

2. In the suit, the petitioners filed

I.A.No.4 of 2021, seeking permission to deposit

the entire plaint claim and to return the O.P.(C) No.1111 of 2021

original of the title deed deposited by the first

petitioner. The first respondent opposed the

prayer, contending that the documents can be

released only after the decree passed in the suit

is satisfied. By Ext.P8 order, the trial court

dismissed the application, upholding the

objection of the first respondent. Hence, this

original petition.

3. Learned Counsel for the petitioner

contended that, the petitioners having

volunteered to deposit the entire plaint claim,

the trial court ought to have released the title

deeds. Instead the trial court took a hyper

technical view by relying on Section 60 and 83 of

the Transfer of Property Act, 1882 completely

overlooking the court's inherent power to grant

any relief under Section 151 of CPC.

4. Learned Counsel for the first respondent

contended that the impugned order being well

reasoned, warranted no interference in exercise O.P.(C) No.1111 of 2021

of the jurisdiction under Article 227. The

decisions in Padam Sen v. State of U.P. [AIR 1961

SC 218], State of Rajasthan and another v.

M/s.Ferro Concrete Construction Pvt.Ltd [(2009)

12 SCC 1] and Manjeri Municipality, Manjeri v.

A.M.Mohammed Ali [ILR 2015 (2) Kerala 69] are

relied on to contend that the inherent power

saved by Section 151 of the Code is not intended

to be exercised over the substantive rights which

a litigant possesses. Reference is made to

Sections 60 and 83 of the Transfer of Property

Act to point out that the learned Sub Judge had

rightly held that an application for return of

title deeds by the mortgagor has to be filed

before institution of the suit for enforcement of

the mortgage and even there, the mortgagor should

volunteer to deposit the entire amount. It is

submitted that in the instant case, the

petitioners had approached the court after O.P.(C) No.1111 of 2021

institution of the suit and their offer was to

deposit the amount conditionally. Hence, the

trial court had rightly rejected the request for

release of the title deed.

5. Section 58 defines mortgage as the

transfer of an interest in specific immovable

property for the purpose of securing the payment

of money advanced or to be advanced by way of

loan, an existing or future debt, or the

performance of an engagement which may give rise

to a pecuniary liability. As per Section 58(f),

mortgage by deposit of title deeds takes place

when a person delivers to a creditor or his agent

a document of title to immovable property, with

intent to create a security thereon. Section 60,

dealing with the mortgagor's right of redemption,

reads as under;

"60. Right of mortgagor to redeem.--At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the O.P.(C) No.1111 of 2021

mortgage money, to require the mortgagee(a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c)at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem, and a suit to enforce it is called a suit for redemption."

6. The other relevant provision, viz, Section

83; is also extracted hereunder for easy

reference;

"83. Power to deposit in Court money due on mortgage.--At any time after the principal money 4 [payable in respect of any mortgage O.P.(C) No.1111 of 2021

has become due] and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage."

7. Section 60 enables the mortgagor to pay

the mortgage-money to the mortgagee and demand

delivery of all documents relating to the

mortgaged property in the possession or power of

the mortgagee. Section 83 envisages deposit of

the principal money payable in respect of the

mortgage to the account of the mortgagee, by

depositing the amount in the court in which the

mortgagor could have instituted a suit for

redemption of the mortgage property. In both

instance, the payment/deposit has to be made

prior to the institution of the suit by the

mortgagee. This precise question was considered

in Poulose (supra). Therein, after careful

scrutiny of Sections 60 and 83, it is held that O.P.(C) No.1111 of 2021

the remedy available to the mortgagor under the

provisions aforementioned has to be invoked

before the mortgagee files a suit for enforcement

of the mortgage. The trial court rightly relied

on the decision in Poulose (supra), for declining

the request for release of the title deed.

8. The contention that, dehors Sections 60

and 83 of the Transfer of Property Act, the trial

court could have ordered release of the title

deeds by exercising its power under Section 151

cannot be countenanced, as Section 151 CPC cannot

be resorted to, as if the provision is a panacea

for all ailments. As held by the Apex Court in

Padam Sen, the inherent powers saved by Section

151 of the Code are with respect to the procedure

to be followed by the Court in deciding the cause

before it and is not a power to be exercised over

the substantive rights of a litigant. For that,

specific powers have to be conferred on the O.P.(C) No.1111 of 2021

Courts for passing orders affecting substantive

rights of a party. Such powers will not come

within the scope of inherent powers of the Court,

which essentially is the power to regulate the

court's practice and procedure. The legal

position is ex-posited well in M/s.Ferro Concrete

Construction Pvt.Ltd by holding that Section 151

cannot be invoked with reference to a matter

covered by a specific provision in the Code and

cannot be used either to create or recognise

rights, or to create liabilities and obligations

not contemplated by any law. After detailed

analysis of the precedents on Section 151, a

Division Bench of this Court held in Manjeri

Municipality, Manjeri v. A.M.Mohammed Ali [ILR

2015 (2) Kerala 69] that, if there are express

provisions covering a particular topic, then no

power shall be exercised in respect of the said

topic, otherwise than in the manner prescribed by O.P.(C) No.1111 of 2021

the provisions.

Both grounds urged on behalf of the

petitioners having been repelled, the original

petition is dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No.1111 of 2021

APPENDIX OF OP(C) 1111/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 02/12/2015.

Exhibit P2 TRUE COPY OF THE PLAINT IN O.S.NO.4/2021 ON THE FILES OF THE SUB COURT, THRISSUR.

Exhibit P3 TRUE COPY OF THE INJUNCTION PETITION DATED 04/01/2021 (IA NO.2/2021) IN O.S.NO.4/2021.

Exhibit P4 TRUE COPY OF THE ADVERTISEMENT IN MATHRUBHOOMI DAILY DATED 26/05/2015, THRISSUR EDITION.

Exhibit P5 TRUE COPY OF THE OBJECTION DATED 23/01/2021 FILED BY THE PETITIONERS TO EXT.P3.

Exhibit P6 TRUE COPY OF THE APPLICATION DATED 23/01/2021 FILED AS I.A.NO.4/2021 IN O.S.NO.4/2021.

Exhibit P7 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P6.

Exhibit P8 TRUE COPY OF THE ORDER DATED 25/03/2021 IN I.A.NO.4/2021 IN O.S.NO.4/2021 PASSED BY THE PRINCIPAL SUB COURT, THRISSUR.