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2010 DIGILAW 271 (KAR)

K. Rajendra v. P. Somanna

2010-03-03

ARAVIND KUMAR

body2010
ORDER Aravind Kumar; J: The unsuccessful respondent is invoking the revisional jurisdiction of this Court by questioning the correctness and legality of the order dated 13-10-2009 by the Civil Judge (Jr. Dn.) T. Narasipura. 2. The facts in brief are as follows: , The respondent herein filed a petition under Section 83 of the Transfer of Property Act (for short, 'the Act') for the relief of issue of notice to the respondent and directing him to deliver vacant possession of the petition schedule property along with / original mortgage deed with discharge shara after receipt of mortgage money Rs, 1 .25,000/ deposited with the petition with Court costs. 3. Respondents are husband and wife and are absolute owners of the petition schedule property which is not in dispute. Under a usufructuary mortgage deed dated 7-2-2004 the respondents herein had mortgaged the same in favour of the petitioner for Rs. 75,000/- and delivered the possession of the petition schedule property on the same day. The period of mortgage agreed under the said deed was three years. In furtherance of the said mortgage the petitioners had received further sum of Rs. 50.000/- as additional mortgage money from the respondent under the second mortgage deed dated 15-2-2004. i.e., immediately after execution of the first mortgage deed. After completion of the mortgage period of three years, the respondents approached the petitioner herein to deliver the possession with original mortgage deed by receiving the mortgage money of Rs. 1,25,000/-. Since the respondents did not delivery possession of the petition schedule property, it was contended by the respondents herein in the petition before the Court below that they got issued a legal notice dated 28-7-2007 to the respondent therein (petitioner herein) and in spite of receipt of the same he had not, redeemed the mortgage. Thus, respondents herein deposited the mortgage money of Rs. 1.25,000/- in the Court below on 12-10-2007 after obtaining the permission of the Court and before filing the petition. 4. On service of notice the petitioner herein appeared before the Court below and filed his detailed statement of objections contending inter alia that execution of the mortgage deed was admitted but the petitioner herein denied that respondent had approached him and sought for delivery of possession along with return of original mortgage deed and had offered Rs. 1.25,000/-. The petitioner herein also denied the receipt of legal notice dated 28-7-2007. 1.25,000/-. The petitioner herein also denied the receipt of legal notice dated 28-7-2007. It was also contended that on account of negotiation held petitioner had agreed to sell the property in favour of respondent. On the basis of the rival pleadings the Court below framed the following points for its consideration: (i) Whether the petitioner made out a grounds to issue direction to the respondent to deliver vacant possession by receiving mortgage amount of Rs. 1,25,000/-? (ii) To what order? 5. The Court below on considering the pleadings and arguments advanced by the learned advocates appearing for the parties by its order dated 13-10-2009 allowed the petition filed under Section 83 of the Act and directed the respondent therein i.e., petitioner herein to hand over vacant possession of the petition schedule property to the petitioners therein with original mortgage deeds with discharge shara on receiving mortgage money of Rs. 1,25,000/- which had been deposited by the respondents herein before Court below. 6. It is this order which is now challenged in the revision petition. 7. I have heard Sri Prashanth, learned Counsel appearing for the revision petitioner and Sri Krishna Murthy learned Counsel appearing for Prince Isac, for the respondents. 8. Sri. Prashanth learned Counsel appearing for the petitioner herein would contend that Section 83 of the Act is with a limited jurisdiction and only when the ingredients mentioned in Section 83 of the Act are satisfied an order can be passed namely when the mortgagor offers and deposits the money in the Court and the mortgagee signifies his willingness to accept the amount and not otherwise. He would contend that in the event an objection is raised by the mortgagor the only recourse to the mortgagor is to file a suit under Section 60 of Transfer of Property Act for redemption of mortgage and the remedy would not be under Section 83 of the Act. He would also submit virtually Section 83 empowers the Court to do a ministerial act and when there is an objection raised by the mortgagee the Court would not get jurisdiction to pass orders. He would also submit virtually Section 83 empowers the Court to do a ministerial act and when there is an objection raised by the mortgagee the Court would not get jurisdiction to pass orders. Elaborating his submission on the above points and bringing to the notice of the Court about the objection before the Court below, he would contend that in paragraphs 6 and 7, the mortgagee has notified his unwillingness to receive money for the reason assigned therein and as such when there is no willingness on the part of the mortgagee, the Court could not have passed an order by allowing his application under Section 83 of the Act and he seeks for setting aside the order of the Court below and allow the revision petition. In support of his contention he referred to the following Judgments: (i) AIR 2006 SC 2965 Bishwanath Prasad Singh Vs. Rajendra Prasad & Another. (ii) 1969(2) Mys.L.J. 96. H.S.Brahmiah Achar Vs. Karur Ramiah (iii) AIR 2000 AP 371 . The District Co-operative Central Bank, Chittoor Vs V. Suryanarayana Setty and others 9. To butress his submission he would draw the attention of the Court to paragraphs 34 and 35 of the Judgment in Bishwanath Prasad Singh's case referred to Supra to contend that Court exercising power under Section 83 does only a ministerial act. Relying upon Brahmaiah Achar's case he would draw the attention of the Court to page 98 and contend that it Is not merely willingness which would entitle the mortgagor to seek prayer under Section 83 but it is willingness of the mortgagee in writing which would entitle for the prayer being granted under Section 83 and the same is conspicuously absent in the present case. Drawing the attention to paragraph 8 and 9 in District Co-operative Bank's case referred to supra he would contend once there is a dispute between the parties, the resultant fact would disentitle the mortgagor to claim relief under Section 83 of the Act. 10. Per contra Sri .Krishna Murthy would contend that mortgagee in the instant case has admitted all the averments made in the petition. 10. Per contra Sri .Krishna Murthy would contend that mortgagee in the instant case has admitted all the averments made in the petition. He contends that mortgagee has expressed his willingness in paragraph 2 of the written statement or statement of objections and hence the other contentions raised in the subsequent paragraphs would be of no consequence and it would virtually amount to conceding the averments made in the petition, He also contends that filing of the petition was proceeded by issuance of legal notice which has remained unanswered and as such it is to be construed or deemed that he has accepted or consented or expressed his willingness to accept the amount which has been deposited by the mortgagors. He would also amplify his submission by contending that mere expressing the willingness with conditions would not nullify the willingness expressed and contends that such willingness expressed would stand and accordingly submits that the petition as allowed by the Court below does not suffer from any infirmity either in law or on facts and prays for dismissal of the revision petition. He would also draw the attention of the Court to paragraphs 2 and 5 of the written statement flied by the revision petitioner before the Court below wherein it is admitted about the execution of the mortgage deeds receipt of money and willingness to accept which I1oo.sloubt has been placed with a condition. Accordingly he seeks for dismiss8.l of the petition. 11. In support of his submission he relies upon the judgment in the case of Smt. Kamalamma and others Vs. R.N.Reddy and others reported in ILR 2000 Kar 1402. While drawing the attention of the Court to paragraph 16 he would contend once a mortgagee is always a mortgagee and mortgagee should not be permitted to refuse the right to the mortgagor to redeem the property who under difficult circumstances would have given the property under mortgage to mortgagee. 12. Having heard the learned Counsel for the parties, the following points arises for my consideration: (i) Whether the petition filed tinder Section 83 of the Transfer of Property Act in the Court of Civil Judge (Jr.Dn) satisfies the ingredients of Section 83 of the Transfer of Property Act? (ii) Whether the respondents were entitled to the relief claimed in the application petition flied under Section 83 of the Transfer of Property Act? (iii) To what order? 13. (ii) Whether the respondents were entitled to the relief claimed in the application petition flied under Section 83 of the Transfer of Property Act? (iii) To what order? 13. In order to appreciate the rival contentions raised by the parties it would he necessary to extract the provisions of Section 83 of the Transfer of Property Act which reads as under: 83. Power to deposit in Court money due on mortgage: At any time after the principal money payable in respect of any mortgage has become due and before a suit the 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. Right to money deposited by mortgagor: The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the san1e Court the mortgage-deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage-deed and all such other documents so deposited shall be delivered to, the mortgagor or such other person as aforesaid. Where the mortgagee is in possession of the mortgaged property, the Court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to respondent-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgment in writing that any right in derogation of the mortgagor's interest transferred to the mortgagee has been extinguished." 14. The first paragraph of Section 83 of the Act casts an obligation on Mortgagor which, requires to be performed by the mortgagor namely prior to institution of a Petition under Section 83 the mortgagor, the money payable in respect of the mortgage amount due and a suit for redemption of the mortgage gets time barred is required to deposit the mortgage amount in Court and then seek for discharge of the mortgage and seek possession of both the property as well as the documents. A perusal of the records of the Court below would indicate that a usufructuary mortgage came to be executed on 7-2-2004 by the mortgagor for Rs. 75,000/- and after having received the same under the said deed of usufructury mortgage they have delivered possession of the same on the same day. The said mortgage was for a period of three years. Immediately thereafter wards i.e. after a gap of about. 8 days additional amount has been received by the mortgagor from the mortgagee namely Rs. 50.000/-. An additional mortgage deed (unregistered- second mortgage) came to be executed on 15-2-2004 and it is after the completion of the said mortgage period or three years the mortgagors got issued a legal notice on 28-7-2007 and requested the mortgagee to execute the discharge deed and deliver possessi0':1 of the petition schedule property by receiving the mortgage amount of Rs. 1.25.000/-. On account of inaction by the mortgagee the mortgagors have approached the jurisdictional Court to deposit the amount of Rs. 1 ,25,000/and the said permission was granted on 12-12-2007 and by RO.267319 the amount Came to be deposited and there afterwards the petition has been filed. These facts are not in dispute. On service of notice the respondent namely mortgagee entered appearance and filed his detailed statement of objections. In the beginning to the statement of objections it is contended that petit ion is not maintainable. However, in paragraph 2, the mortgagee in unequivocal terms admits the execution of the two deeds. The appellant also admits the receipt of the amount and redemption period of three years is also accepted. In the beginning to the statement of objections it is contended that petit ion is not maintainable. However, in paragraph 2, the mortgagee in unequivocal terms admits the execution of the two deeds. The appellant also admits the receipt of the amount and redemption period of three years is also accepted. In the words of the respondent the said objections reads as under: "It is submitted by the respondent, that the para 2 of the petition, that the petitioners are the husband and wife is true and they are the absolute owners of the petition schedule property , and also they have mortgaged the same infavour of the respondent is also true and correct and it is also true that the petitioners have received the mortgage amount of Rs. 75,000/- under usufructuary mortgage deed dated 07.02.2004 and also Rs. 50.000/- under un-registered mortgage deed dated 15.02.2004 in total sum of Rs. 1,25,000/- (Rupees One Lakh Twenty-five thousand only) for the redemption period of 3 years and also they have put the respondent in-possession of the petition schedule property on 11.02.2007 are all true and correct but, it is not true to say that the petitioners after completed the redemption period of 3 years, that they have approached the respondent to deliver the possession with original mortgage deeds and receiving the total amount of Rs. 1,25,000/- and the respondent did not receive the mortgage amount and also did not need to the request of the petitioners and thereby refused to deliver the possession of the petition schedule property as well as the mortgage deeds with due discharge shara." In the succeeding paragraphs namely at paragraph 5 the mortgagee admits, that he was ready to foreclose the mortgage after the completion of the redemption period of three years and contends that it did not materialise on account of certain developments said to have taken place. It is contended in the objection statement that there were negotiations between mortgagor and mortgagee for the sale of the very same property and a consultation took place between the parties at the behest of the elders and it was agreed there under the mortgagor should sell the property to the mortgagee for a total consideration of Rs. It is contended in the objection statement that there were negotiations between mortgagor and mortgagee for the sale of the very same property and a consultation took place between the parties at the behest of the elders and it was agreed there under the mortgagor should sell the property to the mortgagee for a total consideration of Rs. 7,00,000/- and on account of the said settlement arrived at he was forced to borrow amount and has been paying the interest and on request to the mortgagors to execute sale deed by receiving the consideration having not yielded any positive result was contemplating to institute appropriate proceedings. At that point of time the mortgagors have filed a petition under Section 83 of the Act. It was also contended In the objection statement that if the amount of Rs. 1,25,000/- deposited by the mortgagor before the Court below is accepted by him, his right to recover the amount which he is alleged to have lost by paying interest would get extinguished and as such he exhibits his unwillingness to receive the amount. The Court below having considered these facts has proceeded to hold that Section 83 of the Act is introduced in the Interest of the mortgagor and to avoid any litigation In this regard and on such presumption has proceeded to direct the mortgagee to receive the amount and deliver possession. The Court below has further directed the mortgagee to deliver documents by executing appropriate discharge shara. The Issue is with regard to the obligation which requires to be performed by the mortgagee as contemplated under Section 83 of the Act. The second limb of Section 83 which casts an obligation on the mortgagee on receipt of redemption notice from the Court he has to present a petition stating and expressing his willingness to receive the money so deposited in full discharge of such amount and it is only on such, willingness having been expressed by the mortgagee the Court would get the jurisdiction to order for allowing the petition and not otherwise. The decision of this Court in the case of H.S.Brahmaiah Achar would be of relevance to accept the contention of the learned Counsel for the petitioner. The decision of this Court in the case of H.S.Brahmaiah Achar would be of relevance to accept the contention of the learned Counsel for the petitioner. It is held in Brahmiah Achar's case to the following effect: " After deposit of amount of the mortgage by the mortgagor under Section 83 of the Act, the Court has to serve a written notice of the deposit on the mortagagee. The mortgagee is required to present a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage and his willingness to accept the money so deposited in full discharge of such amount. He has also to deposit in the same Court the mortgage deed and all documents in his possession or power relating to the mortgaged property. He has to then apply for and receive the money." In effect it would mean that mortgagee has to accept the money without demur by filing or presenting a petition which is also to be verified in a manner prescribed by law for verification of the plaints. It is thereafter Court considering the application for granting a prayer under Section 83 of the Act would be empowered to allow the application filed by the mortgagor. As held in Brahmiah Achar's case it would not be open to the Court to decide or make any order on any of the points in dispute which in effect would mean if the mortgagee were to raise a dispute and express his unwillingness to receive the amount in deposit by filing statement of objection, the recourse left open to the mortgagor in such an event would be to file a suit under Section 83 of the Act for redemption and would disentitle a mortgagor to seek a relief under-Section 83 of the Act. 15. The other decision of the Hon'ble Supreme Court relied upon by the learned Counsel for the petitioner namely in the case of Bishwanath Prasad Singh Vs. Rajendra Prasad and Another, AIR 2006 SC 2965 referred to supra would also be squarely applicable to the facts of the present case. In paragraph 35 it has been held by their Lordships as follows: "35. The provision merely permits the mortgagor to deposit the mortgage amount. Rajendra Prasad and Another, AIR 2006 SC 2965 referred to supra would also be squarely applicable to the facts of the present case. In paragraph 35 it has been held by their Lordships as follows: "35. The provision merely permits the mortgagor to deposit the mortgage amount. Even in a case where such deposit is made, in the event the mortgagee refused to accept the deposit, the mortgagor would have no option but to institute a suit for redemption relying on the mortgage money deposited. The respondent did not file a suit for redemption. It, may be that the appellant objected to the said deposit but despite the fact that the purported mortgage amount was allowed to be deposited, the same being not binding upon the mortgagee as he could not be compelled to accept the same, the question of applying the principles of res judicata would not arise. (See Chandramani Pradhan Vs. Hari Pasavat, AIR 1974 Orissa 47). By reason of such deposit the status of the parties is not altered. For filing a suit for redemption by the mortgager, deposit under Section 83 is not a precondition. 16. By a perusal of the said judgment it would clearly establish that in a petition under Section 83 of the Act adjudication of the rights of the parties with reference to their rival claims is prohibited and in fact the function of a Judge under Section 83 of the Act is only ministerial act since the combined reading of all the three limbs of Section 83 of the Act would lead to the one and the only conclusion that it is procedural in nature and the Courts are not clothed with jurisdiction to adjudicate any issues between the parties. The decision relied upon by the learned Counsel for the revision petitioner namely the District Co-op. Central Bank, Chittoor Vs. The decision relied upon by the learned Counsel for the revision petitioner namely the District Co-op. Central Bank, Chittoor Vs. V.Suryanarayana Setty and Others, AIR 2000 AP 371 would also applicable in all four corners to the facts of the present case, it is held therein at paragraph 8 to the following effect: "A reading of the above provision clearly, contemplates that a mortgagor or any other person entitled to institute a suit, shall deposit the mortgage money in the Court and the Court shall issue notice the mortgagee and in case the mortgagee presents petition expressing his willingness to accept deposit in discharge of the mortgage amount and on depositing the mortgage deed in the Court and other documents the same shall be delivered to the mortgagor or the other person. However, if the mortgagee is in possession of the property, the Court shall direct the mortgagee to deliver the possession to the mortgagor after proper documentation. Therefore, under Section 83 of the Act the mortgagor or any other person is required to deposit the amount before the expiry of limitation for filling the suit for redemption and if the amount is so deposited a notice is issued to the mortgagee, and if he expresses his willingness and accepts the money, other proceedings would go on. Therefore, apart from deposit of the money the other necessary ingredients are mortgagee should also express his willingness to receive the amount in full discharge of the mortgage amount and that he shall deposit the mortgage deed and all other documents. But, however, if a dispute is raised, Section 83 of the Act would not entitle the Court to resolve the dispute." The Judgments relied upon by the learned Counsel for the petitioner would establish that the intendment of Section 83 of the Act is to ensure that the' mortgaged properties are released to the mortgagor without driving him to institute a suit for redemption only if the two ingredients as required under Section 83 of the Act are complied namely the mortgagor deposits the amount in the Court prior to the institution of the application or the petition and on receipt of the notice from the Court the mortgagee expresses his willingness in unequivocal terms i.e., willingness to receive the money without placing any fetters or conditions and then only the Court would get the jurisdiction to allow the petition. In view of the above discussion it is further held that petition presented by the mortgagor before the Court below though was in accordance with Section 83 of the Transfer of Property Act and the mortgagee had satisfied the ingredients mentioned in Section 83 of the Act and in effect it would dis-entitle the mortgagor to claim the relief sought for in the petition filed under Section 83 of the Act. From the perusal of the records of the Court below and the order passed which is challenged in this revision petition it is to be noticed that the mortgagor have failed to establish that the requirement of Section 83 of the Act has been compile with by the mortgagee and hence the order of the Court below suffers from legal infirmity. In view of the above discussion I am of the considered view that point No.1 formulated herein above is to be held in affirmative and point No.2 in the negative. 17. In view of the above, the following order is passed: ORDER The revision petition is allowed. The order Passed in Misc.13/2007 dated 13-10-2009 by Civil Judge (Jr.Dn). T. Narasipur is hereby set aside. The parties are at liberty to redress their grievance in appropriate forum. No order as to costs.