JUDGMENT
S.D. Pandit, J.
(1) Plaintiff is a Bank and has filed the present suit to get a decree for Rs. 1,87,401.49.
(2) It is the case of the plaintiff that defendant No. 1 Harjeet Kaur applied for financial assistance of Rs. 1,50,000.00 against the mortgage of her Bungalow No. C/ 30, Rajouri Garden, New Delhi. She also agreed to pay interest @ 7% over and above the Reserve Bank of India rate of interest, with minimum interest of 16 per cent per annum. The said prayer of defendant No. 1 Harjeet Kaur was accepted. On 27th May, 1976, an amount of Rs. l,50,000.00 was paid to her on executing equitable mortgage and it was agreed to repay the amount of Rs. l,50,000.00 in monthly Installment of Rs. 3,500.00 but the defendant No. 1 never paid regular Installments. Therefore, additional security was taken from her by obtaining the guarantee executed by defendant No. 2 on 6th May, 1977. On 30th September, 1977, the defendant No. 1 was owing a sum of Rs. 1,65,841.67 and the defendant No. I had confirmed the same by executing the documents. When the defendant No. 1 failed to pay the amount though she was called upon to do so by issuing notice, the plaintiff has filed the present suit to get a decree of Rs. 1,87,401.49.
(3) The defendant No. 1 contested the claim of the plaintiff by filing written statement. It is contended by defendant No. 1 that the suit filed by the plaintiff is not true and correct one. She was never required any loan and she has never applied for the loan. The alleged document of mortgage deed is not admissible in evidence as it is not properly stamped and registered. According to her, her husband defendant No. 2 was having some dealings with the plaintiff-Bank on account of his business. As her husband was having dealing with the Bank, the Bank Officers were coming to her husband defendant No. 2, and on account of their pressuring him, he must have given the title deeds to the plaintiff-Bank but she never handed over the title deeds nor she had executed any documents. Thus, there is no parity of contact between her and the plaintiff-Bank. She has also contended that the plaintiff did not properly sign and verify the plaint and thus she contended that plaintiff’s suit be dismissed with costs.
(4) The defendant No. 2 also contested the claim of the plaintiff by filing the written statement. He admits that he had some dealings with the plaintiff-Bank but contended that his wife has no transaction with the plaintiff-Bank and she had never applied for any loan to the plaintiff-Bank. According to him the Bank was pressurising him. One day the Bank Officials had come to his house and they asked him to show the documents. Therefore, he showed the documents of title of his wife to them and they took them away on the pretext that they shall return the same to him but they never returned the same and they have filed fraudulent suit against the defendants. He further contended that the plaint is not properly signed and verified and consequently the same is liable to be dismissed.
(5) During the pendency of the suit, the defendant No. 2 has died and his legal representatives defendants No. 1 (a) to 1 (d) are brought on record but they have not ‘ filed any additional or separate documents.
(6) In view of the above pleadings, my learned Predecessor has settled the issues. Though the issues and my findings thereon are enumerated as under:-
Issue Finding 1. Whether the plaint has been signed and verified and suit instituted by a duly authorised person? O.P.P. Yes 2. Is the plaint liable to be rejected as the same does not disclose when the loaning documents were executed by the defendants? O.P.D. No 3. Did the defendant No. 1 deposited any title deed with the plaintiff with respect to property No. C-30, Rajouri Garden with intent to create an equitable mortage? O.P.P. Yes 4. Whether the documents alleged to be executed by the defendants are inadmissible in evidence on account of being not properly stamped and registered? O.P.D. No 5. Is the plaintiff entitled to the suit amount? O.P.P. Yes 6. Is the plaintiff entitled to any interest and if so at what rate? O.P.P. As per final order 7. Whether the defendant No. 2 is liable as a guarantor? O.P.P. Yes 8. Relief. As per final order. 1
(7) On behalf of the plaintiff-Bank Gurdeep Singh has entered the witness box. He has deposed that he was working as a Clerk in the Rajouri Garden Branch of the plaintiff-Bank from 1974 to 1983. When he was working there, he was dealing with the loans. He has deposed that in the month of May, 1976,a loan of Rs. l,50,00.00 was granted to defendant No. 1 Harjeet Kaur and she had executed a promissory note in his presence as a collateral security for the said loan. He has further deposed that the defendant No. 1 Harjeet Kour, had also executed the other documents on the same date of 27th May, 1976 and had deposited the title deeds of her property No. C-30, Rajouri Garden, New Delhi and had executed the necessary document in token of the said mortgage by deposit of the title deeds. She had also given a letter in Gurmukhi language admitting the said loan transaction. He has further deposed that defendant No. 2 Swinder Singh Sethi had stood guarantor to defendant No. 1 and he had executed a letter of guarantee on the same date of 27th May, 1976. This defendant No. 2 had executed a letter in favor of the Bank admitting the said loan transaction and all those documents were executed by defendants No. 1 and 2 in his presence and he has identified the signatures of defendants Nos. 1 and 2. He has further deposed that on 30th June, 1977 by the letter of Ex.PW 1 /11 Harjeet Kaur had confirmed her liability and had also renewed the loan and guarantee documents for the same of Rs. 1,76,826.31. Before that she had also confirmed her statement of account on 31st December, 1976. The said deposition of the witness has gone unchallenged as the defendants were not present and their Advocates were also not present on the date of hearing of the suit. The testimony of the said witness is supported by the documents on record. I myself do not find any reason discard the testimony.
(8) The said Gurdip Singh has further deposed that the General Manager of plaintiff-Bank Mr. Avtar Singh Bagga had executed a power of attorney in favor of H.S. Pardesi authorising him to institute the present suit and to sign and verify the present suit. Similarly, power of attorney was also executed in favor of Jagjit Singh Melhotra by the said General Manager on 9.9.1969. He has identified the signatures of Mr. H.S. Pardeshi on the plaint.
(9) The said evidence of the plaintiff’s witness has remained unchallenged as the defendants as well as their Advocates did not turn out. I myself do not find any reasons to reject the same. I, therefore, accept the same. In view of the said evidence of this witness, it will have to be held that there is proper presentation of the plaint and the plaint is signed and verified by proper person.
(10) Therefore, in view of the above discussed material and record, it will have to be held that the defendant No. 1 had taken a loan from the plaintiff-Bank and on the date of the suit, defendant Nos. 1 & 2 were owing Rs. 1,87,401.49 to the plaintiff bank. As regards the Legal Representatives of defendant No. 2, viz. No. 2A to 2D, there cannot be any personal decree against them and the plaintiff is to recover this amount from the estate of the defendant No. 2, inherited by defendant Nos. 2A to 2D.
(11) The plaintiff has produced on record the title deeds of property No. C/3, Rajouri Garden, New Delhi. Plaintiff witness Sh. Gurdip Singh has deposed that the said title deeds were handed over by the defendant No. 1 for the purpose of creating equitable mortgage. He has proved the document exhibited by her for creation of the said mortgage. The claim of defendant Nos. 1 & 2 that the officers of the plaintiff-Bank had taken away the title deeds from defendant No. 2 on the pretext of seeing them and they did not return the same to them. It is not at all believable or acceptable. The documents of title are lying with the plaintiff since 1976 and the defendant Nos. 1 & 2 had not taken any steps to get back the title deeds by issuing any notice or by initiating any proceeding against the plaintiff-Bank. It is not at all probable that defendant Nos.1 & 2 will keep quiet till the filing of the suit and, particularly, till filing of the written statement and they not taking any steps against the plaintiff-Bank for taking away the title deeds of the property belonging to defendant No. 2. In view of the existence of the title deeds with the plaintiff-Bank coupled with the documents signed by defendant No. 2, it is quite obvious that the title deeds must have come in possession of the plaintiff-Bank on account of creation of equitable mortgage by defendant Nos. 1 & 2.1, therefore, hold that the defendant No. 1 had created an equitable mortgage of the property bearing No. C/3, Rajouri Garden, New Delhi, in favor of the plaintiff-Bank.
(12) Therefore, in view of the above discussion, I hold that the plaintiff is entitled to get a preliminary decree for sale of the mortgaged property for recovery of the amount of Rs. 1,84,41.49.
(13) The original loan taken by defendant No. 1 was of Rs. 1,50,000 .00 . I would, therefore, allow the future interest @18.5% on the said principal amount of Rs. l,50,000.00 from the date of the suit. I, therefore, pass the following order;-
(I)It is hereby ordered and decreed that the plaintiff-Bank is entitled to get Rs. 1,87,401 and 18.5% interest on the amount of Rs. 1,50,000.00 from the date of the suit. It is further decreed that plaintiff is entitled to get the cost of the suit from the defendants. (ii) And it is hereby ordered and decreed that if the defendants do pay into Court on or about 1.3.1996 then on such payment the plaintiff shall bring into Court all the documents in his possession or power relating to the mortgaged property mentioned in the plaint and the said documents shall be delivered to the defendants or to such person as they appoint and the plaintiff shall, if so required, reconvey or retransfer the said property free from the said mortgage and clear off and from all the encumberances, if any, created by the plaintiff, at the cost of the plaintiff. (iii) And it is hereby further ordered and decreed that on default of payment of the aforesaid amount the plaintiff may apply to Court for final decree for sale of the mortgaged property and on such application being made the mortgaged property or sufficient part thereof shall be directed to be sold and for the purpose of such sale plaintiff shall produce before the Court through such officer as it appoints all the documents in its possession or power relating to the mortgaged property. (iv) And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly complied after deduction there from of the expenses of the sale and the amount payable to the plaintiff under the decree and under any further orders that may be passed in this suit and that the balance, if any, shall be paid to the defendants. (v) And it is hereby further ordered and decree that if the money realised from such sale shall not be sufficient for the payment in full of the amount payable to the plaintiff under this decree the plaintiff shall be at liberty to apply for personal decree against the defendants.