JUDGMENT : ANU SIVARAMAN, J. The defendant No.6 is before this Court in this appeal, assailing the legality and correctness of the judgment and decree dated 08.12.2009, passed in O.S.No.1024/2002 on the file of IX Additional City Civil and Sessions Judge at Bengaluru (hereinafter referred to as 'the trial Court' for short). 2. We have heard Shri. Gururaj Joshi, learned counsel appearing for the appellant and Shri. Nataraju T, learned counsel appearing for respondent No.1. 3. For the sake of convenience, the parties are referred to as per the rankings before the trial Court. 4. Brief facts of the case are as follows:- The plaintiff/respondent No.1 instituted O.S.No.1024/2002 for declaration that the mortgage created by defendant No.5/respondent No.6 herein- Jaswinder Singh in respect of defendant No.6 - Karnataka State Financial Corporation ('KSFC' for short) is invalid and not binding upon him and the schedule property and also sought for permanent injunction. The property in question was initially allotted by the Bangalore Development Authority ('BDA' for short) to defendant No.5. The defendant No.5 constructed a building comprising of ground and first floor on the allotted site. Subsequently, on 10.01.1994, the BDA executed an absolute sale deed in favour of defendant No.5. On 10.02.1994, the plaintiff purchased the first floor of the property in question from defendant No.5 through a registered sale deed for valid consideration. The ground floor was purchased by the plaintiff’s brother - Jaikumar Radhakrishnan for a valid sale consideration of Rs.7,50,000/- and later, the same was sold to the plaintiff for a consideration of Rs.9,00,000/- through a registered sale deed dated 15.06.1995. The khata has been duly transferred to the plaintiff's name. The plaintiff has been in peaceful possession and enjoyment of the property through the aforementioned sale deed. On 05.11.1999, an individual, claiming to be an officer of defendant No.6, approached the plaintiff's brother and informed him that defendant No.1 had offered the schedule property as collateral security for the loan advanced to defendant No.1, creating a mortgage in favour of defendant No.6 through deposit of title deeds. It was further revealed that defendants No.1 and 5 had failed to repay the loan, prompting initiation of proceedings under Section 31(1)(a) of the State Financial Corporation Act, 1951 ('the SFC Act, 1951' for short). It was further revealed that defendants No.1 and 5 had failed to repay the loan, prompting initiation of proceedings under Section 31(1)(a) of the State Financial Corporation Act, 1951 ('the SFC Act, 1951' for short). The plaintiff contends that the mortgage created by defendant No.5 is illegal, invalid and constitutes fraud upon the plaintiff, as the defendant No.5 had explicitly undertaken at the time of allotment, not to mortgage the property except to certain institutions like the Government or Banks and that too, for the purpose of obtaining loans for construction. The plaintiff claims that the action of defendant No.5 amounts to fraudulent conduct and that the mortgage, having been created without plaintiff's knowledge or consent, is void. The plaintiff sought a decree to protect his rightful ownership and possession of the schedule property. The plaintiff also prayed for a declaration that the mortgage is invalid and that the title to the property remains unaffected by the alleged action of defendant No.5. 5. The trial Court based on the pleadings, framed the following issues for its consideration:- i. Whether the plaintiff proves that the mortgage created by the 5 th defendant in favour of 6 th defendant is invalid and not binding upon him? ii. Whether the plaintiff is entitled to the declaration sought for? iii. Whether the plaintiff is entitled to the permanent injunction sought for? 6. In order to substantiate his claim, the plaintiff examined himself as PW-1 and got marked 15 documents as Exs.P1 to P15. On the other hand, on behalf of defendant No.6, one Sheik Moula, Deputy Manager, KSFC was examined as DW-1 and in support of its defense, marked the documents as Ex.D1 to Ex.D17. 7. Based on the pleadings, oral evidence and documentary evidence, the trial Court decreed the suit with costs. The mortgage of the schedule property created by defendant No.5 in favour of defendant No.6 was declared invalid and not binding on the plaintiff and the schedule property. Defendant No.6 was restrained by means of a decree of permanent injunction from selling the schedule property u/s. 31(1)(a) of SFC Act, 1951, by enforcing the mortgage. 8. It is the case of defendant No.6 that the plaintiff had previously filed a suit in O.S.No.16407/1999 before the Additional City Civil Judge, Mayo Hall, Bangalore, on 20.11.1999. Defendant No.6 was restrained by means of a decree of permanent injunction from selling the schedule property u/s. 31(1)(a) of SFC Act, 1951, by enforcing the mortgage. 8. It is the case of defendant No.6 that the plaintiff had previously filed a suit in O.S.No.16407/1999 before the Additional City Civil Judge, Mayo Hall, Bangalore, on 20.11.1999. After service of notice, defendant No.6 contested the suit and the plaintiff, realizing his case was without merit, filed a memo for withdrawal on 14.06.2000. No liberty was granted to file a fresh suit. As such, the suit filed herein is barred by the principle of res judicata and the plaintiff’s false affidavit regarding non-filing of the earlier suit further substantiates that this suit should be dismissed with exemplary costs. 9. Defendant No.6 further submits that defendant No.5 - Shri Jaswinder Singh is one of the Directors of the Company which borrowed a loan, securing the same with properties including the suit schedule property. On 17.05.1989, defendant No.5 executed an agreement and also recorded memorandum of entry, offering the property as collateral security for the loan obtained by defendant No.1 - Company. It is contended that agreements were also executed on 12.12.1988, 28.08.1988 and 04.06.1991 securing the loan with suit schedule property on the basis of a permission granted by the BDA on 30.06.1987. The sale deed executed by the BDA in favour of defendant No.5 on 10.01.1994 benefits defendant No.5, as the property was already mortgaged and the mortgage continues to bind the property. Further, a notice was issued by defendant No.6 - KSFC on 29.09.1993 to defendant No.1 - Company regarding the dues, a copy of which was also sent to defendant No.5. 10. The plaintiff and defendant No.5 have allegedly colluded to obtain sale deeds which are not binding upon defendant No.5. The plaintiff claims to have checked the Encumbrance Certificate, but the original possession certificate remains with defendant No.6 - KSFC. Additionally, defendant No.5 obtained the sale deed after lapse of the lease-cum-sale agreement with the BDA. Hence, the sale deed executed by the BDA does not affect the rights of defendant No.5 over the property. 11. The plaintiff’s purchase of the property in the year 1994 is subject to executing mortgage in favour of defendant No.5. Additionally, defendant No.5 obtained the sale deed after lapse of the lease-cum-sale agreement with the BDA. Hence, the sale deed executed by the BDA does not affect the rights of defendant No.5 over the property. 11. The plaintiff’s purchase of the property in the year 1994 is subject to executing mortgage in favour of defendant No.5. The action of defendant No.5 in mortgaging the property were executed with full knowledge of its encumbered status and the sale deed is not genuine. It is further argued that the plaintiff was aware of the mortgage and by purchasing the property in collusion with the other defendants, seeks to defeat and delay the claims of defendant No.6 - KSFC. The plaintiff has also filed a Civil Revision Petition (CRP) No.1695/2001, challenging the order passed by the District Judge, Bidar, in Misc. No.20/1996, rejecting his application for impleading under Order I Rule 10 of CPC. The defendant submits that while CRP No.1695/2001 is pending, Misc. case No.20/1996, is not maintainable and further argues that Misc.No.20/1996 is under Section 31(1)(aa) of the SFC Act, 1951, such a proceeding cannot be stayed in another suit. 12. It is contended by the learned counsel appearing for the appellant that the trial Court failed to consider the suit filed by the plaintiff in O.S. No.16407/1999, which was withdrawn without liberty to file a fresh suit. The trial Court neglected and failed to frame any issue with respect to maintainability of the suit, which was hit by Order XXIII Rule 1(4) of the Civil Procedure Code, 1908 ('CPC' for short). Further, the trial Court ignored the plaintiff’s earlier application for impleading in Misc. case No.20/1996, which was dismissed and also failed to consider the subsequent filing of CRP No.1695/2001 before this Court, which was also dismissed. 13. It is contended that the plaintiff and defendants No.1 to 5 committed fraud by creating illegal sale deeds in favour of the plaintiff, which are subject to the mortgage held by the appellant. The trial Court failed to consider the lawful mortgage and permission granted by the BDA for mortgaging the property to the appellant, resulting in an erroneous decision. The appellant prays for remand of the case to allow presentation of additional evidence, including the BDA memo, granting mortgage permission and for dismissal of the suit based on the grounds of fraud and suppression of facts. 14. The appellant prays for remand of the case to allow presentation of additional evidence, including the BDA memo, granting mortgage permission and for dismissal of the suit based on the grounds of fraud and suppression of facts. 14. In support of his contentions, learned counsel has placed reliance on the following judgments:- • Janaki Vashdeo Bhojwani and others v. Indusind Bank Ltd. , reported in (2005) 2 SCC 217 ; • Vidhyadhar v. Mankikrao and others reported in (1999) 3 SCC 573 ; • Ram Prasad v. Harinarain and others reported in AIR 1998 Rajasthan 185 • Sanjay Kumar Singh v. State of Jharkhand reported in (2022) 7 SCC 247 • State of Karnataka and another v. M.A.Mohamad Sanaulla and another reported in (2022) 14 SCALE 897 • K.S. Bhoopathy and others v. Kokila and others reported in AIR 2000 SC 2132 • Smt. Kori Gowramma v. The Vysya Bank Limited, Kampli and others reported in 2001 (2) KLJ 524; and • S. Kesari Hanuman Goud v. Anjum Jehan and others reported in (2013) 12 SCC 64 . 15. We have considered the contentions advanced. The plaint averments are that the plaintiff had purchased the suit schedule property under a registered sale deed dated 10.02.1994. The ground floor portion was purchased by the plaintiff’s brother by another registered sale deed dated 11.02.1994. Subsequently, plaintiff’s brother sold the ground floor portion also to the plaintiff under a registered sale deed dated 15.06.1995. It is contended that the khata of the suit schedule property had also been transferred in the name of the plaintiff and he was in actual possession and enjoyment over the property. 16. The further pleadings are that a lease-cum-sale agreement was executed by defendant No.5 and the BDA on 08.05.1980. Subsequently, the BDA executed an absolute sale deed which was duly registered on 10.01.1994. It is contended that the plaintiff came to know of the security interest created on the property only when an officer of defendant No.6 came to the property on 05.11.1999 and the brother of the plaintiff had informed him of the said fact. Thereafter, enquiries were made and it was found that defendant No.6 had initiated proceedings under Section 31(1)(a) of the SFC Act, 1951, as Misc. Case No.20/1996 before the District Court, Bidar. The plaintiff approached the District Court with an application under Order I Rule 10 CPC, which was dismissed. Thereafter, enquiries were made and it was found that defendant No.6 had initiated proceedings under Section 31(1)(a) of the SFC Act, 1951, as Misc. Case No.20/1996 before the District Court, Bidar. The plaintiff approached the District Court with an application under Order I Rule 10 CPC, which was dismissed. Consequently, the present suit was filed on 11.02.2002. The contention in the plaint was that the plaintiff is a bona-fide purchaser for value without notice of the mortgage and that he was not bound by any such mortgage of the property. It is further contended that the 5 th defendant could not have created any security interest in the property before 10.01.1994 in the absence of any title in the property having passed before the said date. 17. Defendant No.6 filed a written statement specifically contending that O.S.No.16407/1999 had earlier been filed by the plaintiff on 20.11.1999 before the Additional City Civil Judge, Mayo hall, Bengaluru, and that the said suit was withdrawn with no liberty being reserved for filing a fresh suit. It was contended that the present suit is liable to be dismissed on the ground that he had not disclosed the filing of the earlier suit, but had specifically stated in the plaint that he had not filed any earlier suit on the same cause of action. It was further contended that CRP No.1695/2001 was filed against the order of the District Judge, Bidar, rejecting plaintiff's application for impleading and the said CRP is pending. It is contended that defendant No.5 had executed an agreement dated 17.05.1989 and recorded memorandum of entry giving the suit schedule property as security for the loan borrowed by defendant No.1 - Company and notice had been issued on 29.09.1993 with copy to defendant No.5 informing the dues of the Company and that the sale deed, if any, executed by defendant No.5 in favour of the plaintiff can only be subject to the earlier mortgage in favour of defendant No.6. It was further contended that it was after obtaining permission from the BDA on 30.06.1987, defendant No.5 had executed an agreement dated 20.08.1988 in favour of defendant No.6 creating a mortgage over the property. 18. The question therefore that arises for our consideration is:- "Whether the findings entered by the trial Court require interference in this appeal?" 19. It was further contended that it was after obtaining permission from the BDA on 30.06.1987, defendant No.5 had executed an agreement dated 20.08.1988 in favour of defendant No.6 creating a mortgage over the property. 18. The question therefore that arises for our consideration is:- "Whether the findings entered by the trial Court require interference in this appeal?" 19. Ex.P1 is an absolute sale deed executed on 10.01.1994 by the BDA in favour of defendant No.5. It is stated therein that the purchaser had been put in actual possession of the premises on 16.05.1980 and that Ex.P1 conveys all right, title and interest over the property to the purchaser by way of sale. It is admittedly thereafter that Exs.P2 and P3 - sale deeds were executed by defendant No.5 in favour of the plaintiff and his brother respectively. The ground floor of the building was also subsequently purchased by the plaintiff from his brother. Defendant No.5 though served with notice, had remained ex-parte. 20. Ex.D12 is the lease-cum-sale agreement entered into in respect of the property in question. The said agreement witnesses that defendant No.5 is put in possession of the property and that he shall occupy the property as a tenant for a period of ten years from the date of taking possession or till the date of termination of the lease. The amount deposited by the lessee towards value of the property shall be treated as security deposit for the performance of the terms and conditions. The agreement provides for payment of Rs.6/- per year as rent commencing from 1981. The lessee is to construct the building in the property within two years from the date of agreement. Clause 5 of the said agreement specifically states as under:- "The lessee/purchaser shall not alienate the site/building that may be constructed thereon during the period of tenancy. The lessor/vendor may, however, permit the mortgage of the right, title and interest of the lesee/purchaser in favour of the Government of Karnataka, the Central Government or bodies corporate like the Karnataka Housing Board or the Life Insurance Corporation of India, Housing Co-operative Societies or Banks to secure moneys advanced by such Governments or bodies for the construction of the building". 21. 21. Clause 12 further provides that, if the lessee/purchaser performs all conditions of the agreement, the lessor/vendor shall, at the end of 10 years, sell the property to the lessee/purchaser and all attendant charges shall be borne by the lessee/purchaser. 22. The trial Court found that though defendant No.6 had raised a specific contention that the BDA had given permission to defendant No.5 on 30.06.1987 to create a mortgage as security in favour of defendant No.6, such letter or permission was never produced in evidence. In the absence of such specific permission, it was concluded that the 5 th defendant could not have mortgaged the property and such mortgage could not bind the property. 23. We also notice that the period of lease as per Ex.D12 was for 10 years from 08.05.1980 that is the date of Ex.D12. The sale deed had been executed by the BDA in favour of defendant No.5 only on 10.01.1994. Therefore, till the date of execution of the absolute sale deed by the BDA in favour of defendant No.5, defendant No.5 was in possession of the property only as a lessee and was bound by the conditions as provided in Ex.D12. Ex.D12 permitted creation of mortgage over the property only for the purpose of obtaining financial assistance from the entities mentioned therein, for putting up construction in the property. Though defendant No.6 raises a contention that permission had been obtained from the BDA by defendant No.5, no material has been placed before the trial Court in support of the said contention. In the said circumstances, the finding of the trial Court was justified. 24. The earlier suit filed by the plaintiff that is O.S.No.16407/1999 before the Additional City Civil Judge, Mayo Hall, Bangalore, was one for injunction against the defendants restraining them from attaching the schedule property and further disposing of the schedule property by way of public auction or creating any other charge over the same. It appears that a memo was filed on 24.05.2000, seeking permission to withdraw the suit with liberty to pursue the other remedies that are legally available against the defendants before the appropriate forum. The said memo was taken on record and the suit was dismissed as not pressed on 14.06.2000. 25. It appears that a memo was filed on 24.05.2000, seeking permission to withdraw the suit with liberty to pursue the other remedies that are legally available against the defendants before the appropriate forum. The said memo was taken on record and the suit was dismissed as not pressed on 14.06.2000. 25. The learned counsel for the defendants has placed reliance on several judgments to contend that dismissal of suit as withdrawn without specific leave to sue afresh on the same cause of action would amount to a bar for filing of a subsequent suit. However, we notice that the plaintiff had filed an application for impleading in the miscellaneous case before the District Judge, Bidar, the same was dismissed and later, a Civil Revision Petition was also attempted as CRP No.1695/2001, challenging the said order which was also dismissed. It was thereafter that the present suit was filed seeking a declaration and injunction. We find that the substantial relief sought in the earlier suit was different and distinct. After withdrawing the said suit, the plaintiff had availed the remedies available under the SFC Act. When the said remedies stood exhausted, the plaintiff had filed the fresh suit seeking a declaration that the mortgage did not bind him or the property. We are therefore unable to accept the contention that the present suit is hit by the principles of Res-Judicata and was not maintainable. 26. The trial Court had considered the pleadings and evidence on record and had come to the categoric conclusion that the plaintiff had pleaded and proved that he had no knowledge of the mortgage of the property by the 5 th defendant and that the 6 th defendant/appellant herein had not succeeded in discrediting the said evidence. The 5 th defendant remained exparte and there was no attempt to disprove the said claim. Further, even though applications have been preferred seeking to produce additional evidence before this Court, no document to disprove the said contention or to prove the permission allegedly granted by the BDA to mortgage the property has been produced. 27. Further, it is contended by the learned counsel appearing for the respondent/plaintiff that apart from seeking to harass the plaintiff by seeking to enforce the security interest as against the suit schedule property, no effort had been made by the appellant to recover the dues from the principal debtors or the other sureties. 27. Further, it is contended by the learned counsel appearing for the respondent/plaintiff that apart from seeking to harass the plaintiff by seeking to enforce the security interest as against the suit schedule property, no effort had been made by the appellant to recover the dues from the principal debtors or the other sureties. It is contended that the miscellaneous case filed by the appellant in the District Court, Bidar also stands dismissed for non-prosecution. 28. Having considered the contentions advanced and in the factual situation of the instant case, we are of the opinion that the findings of the trial Court on the issues raised are well founded and require no interference in this appeal. Therefore, the appeal fails, the same is accordingly dismissed. All pending interlocutory applications shall stand disposed of.