Point of Law: 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 mortgage have not been produced.

JUDGMENT :

ANU MALHOTRA, J.

1. This judgment shall dispose of the regular second appeal filed by the appellant against the impugned judgment dated 26.09.2016 of the learned ADJ-02 Shahdara/KKD Courts/Delhi and decree dated 30.06.2015 of the learned trial Court whereby the suit of the appellant filed under Order 34 of the CPC, 1908 (as amended) for foreclosure, sale and redemption of mortgage of the first floor of house number C-1/306, Nand Nagri, Delhi along with a prayer for permanent injunction against alienation of the first floor of the said premises by the defendants nos.1 to 3 which was dismissed, was upheld.

2. Notice of the appeal was issued to the respondents who chose not to put in appearance despite service and were in fact ex parte even before the learned trial Court and did not choose to put in appearance even before the first Appellate Court.

3. The appellant urges the following contended substantial questions of law submitting to the effect that they arise from the facts and circumstances of the instant case:

“i) Section 58 (f) of the Transfer of property Act, contemplates and provide that since the original allotment slip of the property No. C-1/306 Nand Nagri Delhi, was handed over to the appellant by the respondents along with Ext PW1/2 dated 22.2.2007, therefore, the respondents have created simple mortgage and registration of Ext PW1/2 was not mandatory, under section 59 of the Transfer of Property Act, and under Section 17 of the Registration Act.

(ii) Section 58(b) of the Transfer of property Act, contemplate and provide that if the mortgage is simple mortgage it was not mandatory for the appellant to remain in possession of the first floor of House No. C-1/306 Nand Nagri Delhi.

(iii) Section 18 of the Limitation Act, contemplates and provide that since the appellant and respondents have accepted and acknowledged the fresh terms and conditions in connection with the loan agreement dated 21.7.2005, and a fresh mortgage deed dated 22.2.2007, Ext PW1/2, was executed between the parties in respect to loan agreement dated 21.7.2005, therefore, the fresh period of limitation for filing the suit for redemption of mortgage is to be started w. e. f. 22.2.2007 and limitation for filing the suit for redemption of mortgage is not to be started w. e. f 21.7.2005, i.e. from the date of the execution of the loan agreement, and in fact the suit for redemption of mortgage was not filed on the basis of the loan agreement dated 21.7.2005.

(iv) Part V of the Limitation Act, suits relating immoveable property (61 by mortgagor)

(b) To recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration.

Twelve years when the transfer becomes known to the plaintiff.

62 To enforce payment of money secured by a mortgage or otherwise charged upon immovable property.

Twelve years when the money sued for becomes due

63(b) For possession of immovable property mortgaged Twelve years when the mortgagee becomes entitled to possession.

(c) Section 58 to 100 of the Transfer of property Act, does not contemplate and provide that a licensee/allottee can not mortgaged his property and the said provisions of the Act, does not clarify the position that only the free hold properties can be mortgaged.

(d) Section 59 of the Transfer of property Act, contemplates and provide that where the original documents of title of the property are not handed over by the mortgagor to the mortgagee, in such situation registration of the mortgage deed is mandatory under Section 59 and U/S 17 of the Registration Act, but where the original documents of title of the property are handed over by the mortgagor to the mortgagee, mortgage is simple mortgage U/S 58(f), 96 and 100 of the Transfer of property Act, and if the mortgage is simple mortgage, registration U/S 59 of the Transfer of property Act, and U/S 17 of the Registration Act, is not mandatory.

(e) Since the original allotment slip issued to the respondents by the DDA,