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HIGH COURT OF BOMBAY
ARIF S. DOCTOR, J
J.C. Flowers Asset Reconstruction Private Limited – Appellant
Versus
Piramal Capital And Housing Finance Ltd (Earstwhile Dewan Housing Finance Corporation Ltd – Respondent
ORDER :
(ARIF S. DOCTOR, J.)
1. The captioned Suit has been filed inter alia seeking a declaration that the (a) Plaintiff is the exclusive first charge holder / mortgagee in respect of two properties,[(i) a property admeasuring 21,774.10 sq. mtrs. situated at C.S. Nos. H401, H402, H415 to H438 of Bandra Village, Samtacruz (W), Mumbai with structures standing thereon (Santacruz Property) and (ii) a plot of land known as Ghia Compound admeasuring 4,325.30 sq. mtrs. bearing C.S. No. H/395, H/296, H/397 and H/398 of Bandra Village, Santacruz (W), Mumbai (the Ghia Compound Property)] i.e. the Santacruz Property and the Ghia Compound Property more particularly set out in Exhibit ‘A’ to the plaint (“the Suit Properties”) and (b) the Deeds of Simple Mortgage dated 30th July 2018 are void and illegal to the extent of the mortgage created by Defendant Nos. 2 and 3.
2. Before adverting to the rival contentions, it is necessary for context, to set out the following facts, viz.
i. The Original Plaintiff i.e. Yes Bank Limited (“Yes Bank”) had sanctioned certain financial faculties/loans under three Term Loan Facility Agreements to Defendant No.2 to the extent of Rs.700 crores.
ii. Defendant No. 2 and
A mortgage created in violation of the terms of a prior mortgage is void in law, and the court has jurisdiction to declare such mortgages void to prevent serious injury to the first charge holder.
A mortgage created in violation of the terms of a prior mortgage is voidable, and the first charge holder's rights must be protected against subsequent encumbrances.
Subsequent mortgage deeds executed without prior consent violate existing agreements and are voidable under the law, confirming the exclusive rights of the initial charge holder.
(1) Amendment of plaint – If, by permitting plaintiffs to amend plaint including a prayer clause nature of suit is likely to be changed, Court would not be justified in allowing amendment – It would ....
Article 62 of the Limitation Act, 1963 provides that a suit to enforce payment of money secured by mortgage can be filed within 12 years, when the money sued for becomes due.
Registered sale deed presumes valid title and full payment; RP must verify claims precisely and handover possession of third-party assets post-CIRP initiation, subject to prior mortgage priority.
The main legal point established in the judgment is that allegations of fraud and misrepresentation must be supported by compelling evidence, and contentions regarding the creation of a valid mortgag....
A mortgage is indivisible, but a mortgagee may choose not to include certain purchasers in proceedings, affirming dominus litis principle.
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