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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ALOK ARADHE, M.S.KARNIK
Omkara Asset Reconstruction Pvt. Ltd. – Appellant
Versus
J.C. Flowers Asset Reconstruction Pvt. Ltd. – Respondent
JUDGMENT :
M.S. KARNIK, J.
1. The Respondent No.1-original Plantiff - J.C. Flowers Asset Reconstruction Pvt. Ltd. ("J.C. Flowers" for short) filed a Commercial Suit in this Court for a declaration that J.C. Flowers is the exclusive charge holder/mortgagee with regard to the suit property. A further declaration is sought that the deeds of simple mortgage dated 30th July 2018 in favour of Appellant - Omkara Asset Reconstruction Pvt. Ltd. - original defendant No.5 are void and illegal and for taking all necessary steps to cancel the deeds of simple mortgage dated 30th July 2018. In the suit J.C. Flowers prayed for a direction to Respondent No.4 - Piramal Capital and Housing Finance Limited ("Piramal Capital" for short) – original defendant No.1 to deposit the mortgage deeds with the Trial Court. Further, a direction was sought to Piramal Capital to disclose on oath, any rights created in favour of third parties in respect of the suit property. The directions were also sought from Respondent No.2 - Sumer Radius Realty Private Limited ("Sumer Radius" for short)- original defendant No.2 and Respondent No.3 - Sumer Buildcorp Private Limited ("Sumer Buildcorp" for short) - original defendant
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.
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.
Redemption of mortgage – Mortgagor has right to redeem at any time provided his right is so extinguished by act of parties.
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.
A mortgage is indivisible, but a mortgagee may choose not to include certain purchasers in proceedings, affirming dominus litis principle.
Redemption of mortgage - Evidence led by applicant during trial is inconsistent with pleadings and documents stated to have been deposited with plaintiff / appellant for creation of equitable mortgag....
The main legal point established in the judgment is that a mortgage deed must fulfill the requisite conditions as provided in the law, and its registration is necessary for validity and admissibility....
Registered sale deeds of fully paid plots pre-CIRP confer third-party ownership excluded from CIRP estate under Section 18(f) IBC; RP must handover possession subject to pre-existing mortgage rights ....
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