ORDER :- Original Application No. 264 of 2006 is filed by the applicant/plaintiff to pass an order of interim injunction restraining the respondent/defendant from bringing the schedule properties for sale, based on the alleged equitable mortgage dated 1-1-2003 and Application No. 3452 of 2006 is filed by the respondent/defendant to vacate the order of ad interim injunction granted on 20-3-2006.

2. According to the applicant/plaintiff firm, it purchased the suit property from the owner and the documents were also placed before the Sub-Registrar Office, Avadi and the same was not returned due to deficit Stamp Duty.

3. In this context whether the claim of the respondent/defendant bank in having created the equitable mortgage on 1-10-2003 in its favour by the applicant/plaintiff is acceptable.

4. Mr. R. Krishnamurthi, learned senior counsel appearing for the Respondent Bank drew my attention to the petitioner's letter dated 1-10-2003 addressed to the Sub-Registrar of Assurances, Avadi, in the following lines :-

You may kindly take note that we have created a mortgage on 1-10-2003 with ING Vysya Bank Limited, Mount Road branch based on the Xerox copy of the aforesaid deed and the receipt issued for payment of registration charges."

5. Another letter dated 2-10-2003 of the applicant/plaintiff evidencing deposit of title deeds addressed to the Respondent/Bank is found containing the particulars of the properties, of course, with an incorrect extent of 9.5 acres of land, whereas it should be 6.74. There is annexure to that letter indicating the list of documents deposited, wherein the last column shows "Xerox copy of sale deed executed by Tube Investment of India Ltd. in favour of Ride Master rims Pvt. Ltd." and "Sub-Registrar, Avadi Receipt for Rs. 4,16,550/- in document No. 2744/2002." There is no dispute that document No. 2744/2002 indicates the sale deed dated 29-7-2002 executed by Tube Investment India Ltd., in favour of the applicant/plaintiff.

6. Mr. T. V. Ramanujam, learned senior counsel appearing for the applicant/plaintiff pointed out that when all other documents, contained by the list of documents deposited (annexed to the letter dated 2-10-2003 of applicant/plaintiff evidencing deposit of title deeds) indicate that there were original documents deposited, no such term is found as against the last column, mentioning about the Sub-Registrar's Receipt as well as the sale deed in favour of the applicant/plaintiff, over which creation of equitable mortgage is claimed by the Respondent. It was again pointed out that there is variation in the extent of land. Variation may some times be clerical mistake. What we are mainly concerned with is about the deposit of title deeds. I have perused the papers and find the last column mentioning as if, "Sub-Registrar, Avadi Receipt of document No. 2744/2002," and "Xerox copy of that sale deed was produced before the Respondent/Bank." I am satisfied with the case of Bank on that aspect, despite the answer to the column "whether original/certified true copy/photo copy" has been filled up or not.

7. The next question that would arise is as to whether there could be a creation of equitable mortgage with Xerox copy of a particular document. In this connection reliance was placed upon by the applicant/plaintiff in a case law reported in R. Janakiraman v. State rep. by Inspector of Police, C.B.I., SPE., Madras, (2006) 1 SCC 697 : 2006 AIR SCW 754. In that case original title deeds were not deposited. What were deposited were not title deeds, but only a certificate issued by the Co-operative House Building Society, certifying that the appellant is owner of the particular building and two receipts showing that the appellant had paid some electric charges. The alleged mortgage by deposit of title deeds was based upon Ex. P69 in that case, which was also not produced. In that context it was held that the equitable mortgage was also a make-believe and not real one, inasmuch as no document of title was shown

Click Here to Read the rest of this document