Civil Writ Petition No.4563 of 2009 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: MARCH 23, 2009
M/s Passive Infra Projects Private Limited, Vaishali, Pitampura, Delhi
.....Petitioner
VERSUS
State of Haryana & others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Deepender Singh, Advocate,
for the petitioner.
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RANJIT SINGH, J.
Petitioner-Company is sanctioned financial assistance of
Rs.970 lacs by Small Industrial Development Bank of India (SIDBI).
The petitioner-Company, as a security, wished to mortgage the
immovable property of the Company at Village Hassangarh, District
Rohtak. The Company accordingly offered its property for equitable
mortgage as per Section 58 (f) of Transfer of Property Act by deposit
of original title deeds. The petitioner-Company wrote a letter for
entering the mutation on the basis of mortgage by deposit of title
deeds in favour of SIDBI. Respondent No.2 did not enter the
Civil Writ Petition No.4563 of 2009 :2:
mutation. Even SIDBI wrote to respondent No.2 for entering
mutation on the basis of mortgage by deposit of title deeds. The copy
of the order passed by this Court was enclosed with the request letter
but respondent Nos.2 and 3 refused to enter mutation of the
mortgage. The petitioner-Company has, thus, filed the present writ
petition, seeking direction in the nature of mandamus to respondent
Nos.2 and 3 to enter mutation in the revenue record without insisting
the petitioner to execute registered mortgage deed of the immovable
properties, which are sought to be mortgaged by deposit of title
deeds (equitable mortgage).
Since the petitioner rely upon a judgment passed by
Division Bench, which squarely covers the case of the petitioner,
there is no need to issue notice to the respondents and the writ
petition can be disposed of in limine at this stage only.
Learned counsel for the petitioner refers to order
Annexure P-6 passed by Division Bench of this Court where similar
direction has been issued. The Division Bench of this Court, after
referring to number of judgments, has held as under:-
“We are convinced that the mortgage which was created
in favour of the bank by deposit of title-deeds and this
transaction did not require registration. The provisions of
the Registration Act and the Stamp Act did not apply.”
The Division Bench has further held as under:-
“We are of the view that an equitable mortgage is created
by deposit of title-deeds and not through any written
instrument. Simple pledge of the title-deeds to the bank
as securing creates an equitable mortgage, therefore,
Civil Writ Petition No.4563 of 2009 :3:there is never an instrument of deposit of title-deed/
equitable mortgage. The petitioner simply went to the
bank and handed over the title-deeds of their respective
properties. This act was enough to create a mortgage as
envisaged under Section 58(f) of the Transfer of Property
Act. Quite often a memorandum is simply a written
record of the pledge. The memorandum itself is not an
instrument of mortgage. The judgment of Karnataka High
Court has considered this aspect in detail and come to
the conclusion that a memorandum evidencing a
transaction of equitable mortgage neither creates a
mortgage nor establishes an equitable mortgage created
by the deposit of title-deeds, therefore, such a
memorandum was not compulsorily registerable.”
The writ petition was accordingly allowed and direction
was issued to enter mutation in favour of the Bank regarding the
properties, which stand equitable mortgaged in favour of the Bank
concerned by deposit of title deeds. The present writ petition is
squarely covered by the ratio of law laid down in the above noted
judgment passed by Division Bench of this Court.
Accordingly, direction is hereby issued to the respondents
to enter mutation in favour of the Bank regarding the properties which
stand equitable mortgaged in favour of SIDBI by deposit of title
deeds.
March 23, 2009 ( RANJIT SINGH ) khurmi JUDGE