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2013 Supreme(Del) 1678
HIGH COURT OF DELHI
Rajiv Sahai Endlaw, J.
MMTC Ltd. - Appellant
Versus
Raj Rani Gulati (Deceased) Through Lrs. - Respondent
RFA 84/2010
Decided On : 05-12-2013
For the Appellant :Mr. Rohit Puri, Advocate.
For the LR’s of Respondent No. 1:Mr. S.P. Gairola, Adv. for Mr. D.S. Chauhan, Advocate.
For the LRs of Respondent No. 2:Mr. J.S. Bakshi & Mr. A.S. Bakshi, Advocates.
Headnote:
Limitation Act, 1963 - Article 56, 58, 63 - Transfer of Property Act, 1882 - Section 58 - Pledge - Mortgage - Mandatory injunction - Limitation - Declaration of mortgage deed as null and void - Mortgage deed is not binding on the plaintiff - Mandatory injunction directing the appellant to return the title documents of the plaintiff - Three years prior to the institution of the suit was aware of the pledge of the title deeds / mortgage of her property - Suit filed beyond the period of three years therefrom was clearly barred by time - Once the plaintiff had learnt of the title documents of her property having been pledged he ought to have been put to enquiry - There being no denial of the signatures on the MoM and NOC being of the plaintiff and her husband - Only inference possible was of the mortgage by deposit of title deeds in favour of the appellant being consensual - Suit having been filed as an afterthought - Appeal succeeds - Decree of ADJ is set aside - Suit is dismissed - Relief of mandatory injunction is also found to be barred by time.
1. The appeal impugns the judgment and decree dated 10.11.2009 of the Court of Additional District Judge (ADJ) (Central District), Delhi in suit No. 182/2009 filed by the deceased respondent No. 1/plaintiff against the appellant and against the respondents No. 2 to 4 viz. Sh. L.C. Madan, Smt. Veena Chanana & Smt. Shashi Madan and thereby declaring as null and void the Mortgage Deed and No Objection Certificate (NOC) allegedly executed by the deceased respondent No. 1/plaintiff pertaining to property No. M-1/3C, Model Town-III, Delhi in favour of the appellant and directing the appellant to return the original sale deed of the said property in favour of the respondent No. 1/plaintiff to the respondent No. 10/plaintiff.
2. Notice of the appeal was issued. The counsel for the appellant/defendant today informs that the original sale deed supra was filed by the appellant/defendant No. 1 in the suit file and pursuant to the judgment/decree and before the filing of this appeal, the legal heirs of the respondent No. 1/plaintiff took the delivery thereof from the Court file; in the circumstances, vide ex parte ad-interim order dated 26.03.2010, the respondents were restrained from creating any third party interest in the suit property. The respondent/defendant No. 2 Sh. L.C. Madan died during the pendency of the suit and vide order dated 24.01.2011, his legal heirs were substituted. The appeal was on 29.09.2011 admitted for hearing and the ex parte ad-interim order dated 26.03.2010 confirmed. The hearing of the appeal was expedited on the application of the respondents on the ground that some of the respondents were senior citizens. The counsel for the appellant and the counsel for the legal representatives of the deceased respondents/defendant No. 2 Sh. L.C. Madan have been heard. The arguing counsel for the legal heirs of the deceased respondent No. 1/plaintiff has not appeared and the counsel who has been sent has no knowledge of the case. However, since the appeal is being shown in the list of regular matters of this Court, it is not deemed expedient to await the counsel for the deceased respondent No. 1/plaintiff and the records have been perused.
3. The deceased respondent No. 1/plaintiff instituted the suit from which this appeal arises, pleading:
(i) that her husband Sh. K.L. Gulati had initially purchased the property No. M-1/3C, Model Town-III, Delhi by virtue of Agreement to Sell, Power of Attorney, Will etc.;
(ii) that the said Sh. K.L. Gulati, as attorney of the recorded owner of the property, executed and registered sale deed dated 22.02.1993 of the said property in favour of the deceased respondent No. 1/plaintiff;
(iii) that the respondent/defendant No. 2 Sh. L.C. Madan being the son-in-law of the respondent No. 1/plaintiff was also present at the time of registration of the sale deed and took with himself for safe keeping the slips issued by the office of the Sub-Registrar, Kashmiri Gate to enable collection of the registered sale deed after two months;
(iv) that after two months, when the respondent No. 1/plaintiff asked the respondent/defendant No. 2 for the sale deed, he avoided the same on some pretext or the other;
(v) that the respondent No. 1/plaintiff then herself went to the office of the Sub-Registrar, Kashmiri Gate to collect the sale deed but learnt that the respondent/defendant No. 2 had already taken away the original sale deed within one week of the date of registration thereof;
(vi) that the respondent No. 1/plaintiff again enquired from the respondent/defendant No. 2 about the sale deed when the respondent/defendant No. 2 informed that he had mortgaged the same with the appellant/defendant No. 1;
(vii) that the respondent No. 1/plaintiff told the respondent/defendant No. 2 that he had done a wrong to her by mortgaging her sale deed with the appellant/defendant No. 1 without her consent and at her back;
(viii) that the respondent No. 1/plaintiff never signed any documents mortgaging her p
