Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 174 (KAR)

KORI GOWRAMMA v. VYSYA BANK LTD

2000-02-25

G.C.BHARUKA, N.S.VEERABHADRAIAH

body2000
BHARUKA, J. ( 1 ) THIS first appeal by the 3rd defendant is directed against the judgment and decree dated 3. 2. 1997 passed in O. S. No. 66/93 on the file of the Civil Judge, Hospet, decreeing the suit of the plaintiff/ 1st respondent for recovery of a sum of Rs. 2,19,287/- with interest at the rate of 17. 5% p. a. from the date of filing the suit till the date of realisation from defendants 1 and 2/respondents 2 and 3 jointly and severally. ( 2 ) THE rankings of the parties herein are referred to their respective rankings before the Trial Court. ( 3 ) THE suit was filed by the plaintiff-Vysya Bank Ltd for recovery of a sum of Rs. 2,19,287/- which has been decreed by the Trial court with interest at the rate of 17. 5% p. a. from the date of filing of the suit till the date of realisation from defendants 1 and 2 jointly and severally. The Trial Court had also directed the defendants 1 and 2 to pay the said decretal amount within a period of 6 months from the date of order and in cases of failure, plaintiff bank can apply for final decree proceedings for sale of mortgaged property bearing No. 83, 6th ward, Kampli Village, for realisation of the said amount. ( 4 ) SO far as defendants 1 and 2 are concerned, they have not filed any appeal against the impugned judgment and decree. But, the 3rd defendant/appellant, who is vendee of the mortgaged property, being aggrieved by the impugned decree directing sale of the mortgaged property has presented this appeal. ( 5 ) IT is not in dispute and is supported by the evidence brought on record that the property in question was mortgaged by defendants 1 and 2 in favour of the plaintiff bank by way of deposit of title deeds as is evident from Ex. P. 6, document dated 2. 7. 1987, creating mortgage of the property in question in favour of the plaintiff bank. It is also not in dispute that the place Hospet, where mortgage was created has been notified 'town within meaning of Clause (f) of section 58 of the Transfer of Property Act, 1882 (in short the TP act' ). The relevant notification is dated 29. 1. 1981, wherein Hospet has been notified at SI. No. 106. It is also not in dispute that the place Hospet, where mortgage was created has been notified 'town within meaning of Clause (f) of section 58 of the Transfer of Property Act, 1882 (in short the TP act' ). The relevant notification is dated 29. 1. 1981, wherein Hospet has been notified at SI. No. 106. ( 6 ) THE plea of the appellant/3rd defendant is that she is a bonafide purchaser of the property in question for consideration under registered sale deed and since the vendor/defendant 1 did not disclose about the mortgage of the property, therefore, the property in her possession cannot be sold for realisation of the debt owed by the 1st defendant. Her further plea is that the property in question was not registered under mortgage deed, therefore it was not possible for her to know about the factum of the mortgage. ( 7 ) IT bears out from the evidence on record and deposition of the appellant herself that at the time of purchase of the property in question she had not required her vendor to make available the title deeds of the property in question and she merely made enquiries in the revenue records as to whether the property in question was encumbered or not. ( 8 ) SO far as registration of mortgage is concerned. Section 59 of the T. P. Act specifically provides that mortgage by deposit of title deeds is not required to be registered. Further, it is also well settled that wilful abstinence from making enquiry regarding actual state of affairs amounts to 'notice' within the meaning of Section 3 of the t. P. Act. ( 9 ) IN the case of IMPERIAL BANK vs U. RAI G. T. AND CO. , it has been held that abstention from enquiry for title deeds in a place where one knows that mortgages by deposit of title deeds are legal and usual amounts to notice of mortgage under Section 3 of the t. R Act. ( 10 ) SIMILAR view has been taken by the Calcutta High Court in the case of KSHETRA NATH vs HARASUKDAS2. ( 11 ) IN the present case, admittedly, the vendor/defendant No. 1 though obliged to disclose the defects in the property at the time of sale and on demand to produce the documents of title but admittedly he had failed to do so. ( 11 ) IN the present case, admittedly, the vendor/defendant No. 1 though obliged to disclose the defects in the property at the time of sale and on demand to produce the documents of title but admittedly he had failed to do so. In that situation, it was incumbent upon the purchaser i. e. defendant No. 3 to insist for production of title deeds or enquire regarding whereabouts thereof. But no evidence has been placed on record to show that any such effort was made. ( 12 ) IN that view of the matter, as held by the Privy Council, it has to be held that the defendant No. 3/appellant has wilfully abstained from making enquiry, as such she will be deemed to have the notice of the defects in the title. ( 13 ) FOR the aforesaid reasons, we do not find any ground to interfere with the Impugned judgment and decree and the appeal has to fail. The appeal is accordingly dismissed. The parties to bear their own costs. --- *** --- .