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S.B. Civil Writ Petition No. 2538/2008
Chogalal
vs
Addl. District Judge (Fast Track) No.2, Bhilwara
& Anr.
DATE OF ORDER : - 30.3.2009
HON'BLE MR. PRAKASH TATIA, J.
Mr. Dinesh Mehta, for the petitioner.
Mr. Usman Gani, for the respondents.
Heard learned counsel for the parties.
The plaintiff filed simple suit for recover of money of
Rs.2,89,000/- with the prayer that the decree for said sum
be passed in favour of the plaintiff against the defendant. In
alternate, the defendant may be directed to sale the Gawari
in question to the plaintiff by executing the registered sale
deed in favour of the plaintiff and possession be also
delivered to the plaintiff by the defendant. The plaintiff also
prayed for interest over the amount referred above. The
plaintiff submitted document Ex.1 having title “agreement”
upon which objection was raised against its admissibility by
the defendant.
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The trial court vide impugned order dated 15.12.2008
observed that the document Ex.1 is mortgage deed and
since it is not registered, therefore, cannot be admitted in
evidence. It is also observed that since the possession has
also not been delivered to the plaintiff by the defendant
while executing the document, therefore, on the said
document, the stamp duty payable was equivalent to the
stamp duty provided in the bond which is 5%, whereas the
document has been executed on stamp of Rs.100/- only. In
view of the above, the document is not in proper stamp.
Learned counsel for the petitioner submitted that
petitioner’s suit is not suit for foreclosure nor it is a suit for
redemption of mortgage by the mortgagor and petitioner’s
suit is only for recovery of money. To prove admission of
defendant of taking loan from the plaintiff, the plaintiff
wants to produce the document in question and the plaintiff
is not enforcing the document in any manner so far as
prayer no.1 is concerned. Therefore, the document neither
required registration nor required stamp duty as leviable on
mortgage deed equivalent to the stamp provided for bond.
It is submitted that the plaintiff’s this document is a
collateral evidence only to prove the fact of admission of
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taking loan and since the plaintiff is not enforcing or seeking
relief on the basis of the document, therefore, the trial court
has committed error of law by rejecting the plaintiff’s
documentary evidence.
Learned counsel for the defendant vehemently
submitted that the nature of the document is very clear and
there is no illegality in the order passed by the court below.
The court below rightly held that the document is mortgage
deed and once it is proved that it is a mortgage deed then it
cannot be admitted unless it is registered. It is also
submitted that the mortgage deed requires stamp duty and
the trial court held that the document has not been
executed on proper stamp, therefore, a document, which is
not on proper stamp cannot be admitted in evidence and on
this count, the plaintiff’s document cannot be admitted even
for collateral purposes. However, according to learned
counsel for the defendant, admitting the document in
evidence will tantamount to acting upon the deed of
mortgage which cannot be acted upon or enforce unless it is
registered and is executed on proper stamp.
I considered the submissions of learned counsel for
the parties and perused the facts of the case and the
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document Ex.1. From the document Ex.1 it is clear that
there may have title “agreement” but that title is of no
effect because of the reason that this document purport to
say advanced the loan to the defendant on mortgaging
Gawari of the defendant in favour of the plaintiff with
condition that in case there will be default in payment of
installments, the defendant will sale the house to the
plaintiff.
However, the present suit is clearly not a suit for
foreclosure and the document in question is not
foundational document, which is clear from the first para of
the plaint, wherein the plaintiff clearly mentioned that the
loan was advanced as per oral contract and the document
was got executed for collateral purpose. Here in this case,
the relief is not founded on the document and since there
are clear plea of the plaintiff that he advanced the loan as
per the oral contract and also obtained the document then
to prove admission of the defendant of taking loan, the
plaintiff can use the document and for that purpose, neither
there is necessity nor registration nor the stamp duty.
In view of the above reasons, the writ petition of the
petitioner is allowed. The order of the trial court dated
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15.3.2008 is set aside and the document Ex.1 be admitted
in evidence only for the limited purpose referred above.
(PRAKASH TATIA), J.
c.p.goyal/-