Hari Kishan vs Jawa Mal and Others

K. Kannan, J.—The second appeal is against the decree of dismissal by the trial Court and the appellate Court in a suit for redemption of a mortgage which had been executed by the plaintiffs predecessor in favour of the defendant through a registered instrument dated 14th March, 1953. The mortgage was a mortgage by conditional sale that stipulated, inter alia, the following terms:- ......it has been decided that if up to 3 years the mortgagor will not release the said shop from Jhawa Mal, then the sale of the said shop will be considered against the said mortgage amount and the amount of expenses etc. If, due to any defects either legal or otherwise the possession of the said shop partly or in full goes out from the hands of the said mortgagee then the mortgagor will be held responsible to return back the said mortgage amount, its interest etc. to the said mortgagee and the said mortgagee will also be empowered to receive all losses, damages, cost, charges, and expenses etc. from the mortgagor and from the properties of the mortgagor either movable and immovable.

The suit is filed on a plea that the defendant is in possession of the property and is liable to be redeemed on payment of the amount which he was offering to the mortgagee. The defence was that there was no subsisting mortgage to be redeemed and that the right of redemption had been foreclosed through an order passed by the District Judge pursuant to an application filed under Sections 7 and 8 of the Bengal Land (Redemption and Foreclosure) Regulation Act, 1806 (for short, the Bengal Regulation) that set out a procedure for redeeming a mortgage. The suit went to trial on the respective contentions of parties and the essential issue which was raised was whether there had been a valid order passed by the authority foreclosing mortgage. At the trial, the attempt of the plaintiff was to deny the signature in the summons said to have been issued by the District Judge before the order was issued. An expert had also been examined to disown the signature found in the document of summons issued to the plaintiffs predecessor. The trial Court found and the appellate Court affirmed that there had been a valid order passed foreclosing the mortgage and there was no subsisting mortgage to be redeemed through a decree of redemption.

In the second appeal, the ground urged among other contentions was that there had been no notice issued by the authority before passing an order and that further the term in the mortgage deed providing for transfer of right to the mortgagee after a period of 3 years amounted to a clog on redemption and, therefore, the clause itself was not valid and the Court ought to have granted a decree as prayed for.

Although a plea is made to the effect that the document providing for a transfer of interest after a period of 3 years as constituting a clog on redemption, it is not persisted by any argument by the defendant and I assured to myself that there was no such defence by the defendant that the mortgage cannot be redeemed by virtue of recital in the instrument that the title was to be transferred after a period of 3 years. I have, therefore, not framed that as a substantial question, for, it is not a point of denial by the respondent. However, the dispute has been with reference to the validity of the order passed by the authority and before me the argument urged by the learned senior counsel appearing on behalf of the appellant was that the mandate under the Bengal Regulation providing for a notice prior to an attempt by a mortgagee to foreclose had not been issued and, therefore, the proceedings of the District Judge issuing an order of foreclosure is not legally valid. The learned senior counsel would refer to me to a judgment of this Court rendered in Pirthi and Others Vs. Daya Kishan and Another, that follows an earlier ruling of a Division Bench of the Lahore High Court in AIR 1924 176 (Lahore) that the Court will not presume that all the formalities required under the Regulation have been observed and the mortgagee, who claims that the right of the mortgagor has been foreclosed, shall prove that there was a valid notice issued before the order of foreclosure was issued. The attempt was, therefore, to point out that the order of foreclosure itself will not conclude the proceedings, but in a suit for redemption, the defendant, if he must nonsuit the plaintiff, must establish the issue of notice before the order of foreclosure was passed.

In this case, an application under Sections 7 and 8 of the Bengal Regulation appears to have been filed on 29.10.1959. The defendant has filed a copy of the notice which was issued and at the last line of the notice issued in Hindi, rewritten in English, reads as follows:--

Sd. Ram Lal Advocate.

Palwal.

13.11.59

The order was passed by the District Judge, Rohtak on 13.01.1960 and the notice of the Court before issuing an order had been issued on 16.12.1959. The learned senior counsel would argue that the notice had been issued on 13.11.1959 after filing of the petition on 29.10.1959 and this cannot be a valid notice in the manner contemplated under Regulation 8. Regulation 8 reads thus:--

Procedure for mortgagee or conditional vendee desirous to foreclose mortgage or render conditional sale absolute.- Whenever the receiver or holder of a deed of mortgage and conditional sale, such as is described in the preamble and preceding sections of this Regulation, may be desirous of foreclosing the mortgage and rendering the sale conclusive on the expiration of the stipulated period, or at any time subsequent before the sum lent is repaid, he shall (after demanding payment from the borrower or his representative) apply for that purpose by a written petition, to be presented by himself, or by one of the authorised vakils of the Court to the Judge of the zila or city in which the mortgaged land or other property may be situated.

The Judge, on receiving such written application shall cause the mortgagor or his legal representative to be furnished, as soon as possible, with a copy of it; and shall at the same time notify to him by a parwana under his seal and official signature that, if he shall not redeem the property mortgaged in the manner provided for by the foregoing section within one year from the date of the notification, the mortgage will be finally foreclosed and the conditional sale will become conclusive.

The requirement is, there shall be a demand for the payment from the borrower or his representative prior to an application for foreclosure. The attempt was, therefore, to show that prior notice had not been issued and, therefore, in terms of the judgment, referred to above, the plaintiff cannot be nonsuited and the order of foreclosure issued by the District Judge, Rohtak, must be taken as wholly invalid. The learned senior counsel would argue that a want of notice which is mandated makes the proceeding void ab initio and it was not even necessary for the plaintiff to set it aside. He is entitled to ignore the same and apply for redemption through the suit.

The argument of the learned senior counsel is countered by the counsel for the respondents by pointing out that there is no averment anywhere in the plaint challenging the proceedings brought before the District Judge that there had been no notice by the mortgagee prior to his application for redemption and mere is a complete absence of any reference to the proceeding before the District Judge. There was not even an issue before the Court that there was no notice prior to the filing of the petition. The counsel would argue that at least when the written statement was filed setting out the foreclosure order by the District Judge, the plaintiff was obliged to join issues on the contentions raised to file a replication to deny the alleged absence of statutory notice before filing the petition for foreclosure and how the plaintiff was contending for a position that the order passed foreclosing the rights was void ab initio. The whole focus at the time of trial was only to deny the Court notice issued by the District Judge before the passing of final order and the expert had been examined only to examine whether the signature contained in the court''s summons was the signature of the plaintiffs predecessor or not. The Courts have held that he had been served and the order was validly passed and, therefore, there is no scope for reopening the issue to hold that the statutory notice prior to the petition for foreclosure had not been issued.

The counsel for the respondents would point out that it is wrong to contend that no notice had been issued prior to the filing of the petition under Sections 7 and 8 demanding payment of the amount and the plaintiff was attempting to make capital of mistake in referring to the date when the copy of the notice was attested by the counsel which was during the proceedings and did not actually represent the date when the notice had been issued. The counsel would make pointed reference to the averment in the application filed under Sections 7 and 8 of the Regulation which states in para 4 as follows:--

That the petitioner has already issued a notice for the payment of mortgaged amount and the said expenses, but till date he is not paid and due to said reason the said petitioner has right to move application for the sale deed on the ground of the sale of Bil Wafa. The notice will be attached.

(underlining mine)

There had been, therefore, a reference to issuance of notice in the petition filed on 28.10.1959 and that the notice could not be any notice issued subsequently, for, if it were to be so, there could be no possibility of a notice as having been "already issued". The counsel would point out to me that the notice filed in Court was a copy of registered notice and the preamble of the notice reads as under;-

Copy of registered notice.

From the office of Lal Ram Lal, Vakeel (Advocate)

Palwal, dated 19-12-58.

This is by way of explanation that the notice which was produced before the Court was what was attested by the counsel as on 13.11.1959, that is, subsequent to the date when the petition was filed in Court on 29.10.1959.

I have gone through the pleadings as well as the grounds of appeal before the courts below. There is no reference whatever that a statutory notice required to be issued under the Regulation had not been issued at all. The learned senior counsel, however, will bolster up this lacuna by contending that it ought not to be material at all, for, the plaintiff was at all times contending that he had not been served with any notice before the order was passed and, therefore, he could not be expected to state also that there was no notice prior to the petition. Further, the statement itself only makes reference to a notice as having been notice of 13.11.1959 and, therefore, there was no scope for the plaintiff to further state that there had been no notice issued prior to the filing of the petition for foreclosure. All these attempts of whether there existed a notice or not would assume significance if there had been a plea therefor and an adjudication canvassed on such a plea at any stage before the courts below. A want of notice that goes to the root of the matter cannot be merely a matter for an argument without even such a plea to that extent. Indeed, there must be even an issue framed therefor of whether the proceedings before the District Judge were invalid for want of notice prior to the filing of the petition. The plaintiff had not sought for such an adjudication at all at any point of time. Even in the written grounds of appeal brought before me, it has been only urged that the recitals in the mortgage were a clog on redemption and not valid and that the order passed by the District Judge did not constitute a binding declaration to foreclose his rights. I cannot allow for an essential pleading to be merely a matter of argument. In the decision in Pirthi (supra), the issue was the validity of the order under Regulation and the want of notice prior to the petition and there this Court was making a reference to the earlier Division Bench ruling in Munshi Ram (supra) that the mortgagee was required to prove affirmatively the due performance of every necessary condition. When the Court was observing that a fact of the mortgagee not raising objection to the validity of notice did not warrant a presumption, it was at least not making a reference that the invalidity of notice need not have been expressly stated. Here is not invalidity of the notice from the Court. The contention was that there was no notice prior to the petition of the defendant. I cannot take this to be a situation which the Division Bench was considering in the decision in Munshi Ram (supra) and followed by this later in Pirthi (supra). If there had been an order foreclosing the rights by the order of the District Judge in the year 1961, filing a suit in the year 1981 without any reference to the invalidating of the order of the District Judge either by specific pleas in the plaint or in the replication, the plaintiff had surely something to hide. The courts below have seen through the plaintiffs game and had decided to dismiss the suit. I find, therefore, no reason to differ with the views and will hold that the right of redemption had been lost by the order of the foreclosure validly passed by the authority. The validity of order of the District Judge u/s 8 could surely be examined by the Civil Court in a subsequent suit in redemption but in this case such examination does not reveal any ground that could invalidate that order. The substantial questions raised are answered as above and the second appeal is dismissed with costs. Counsel''s fee Rs. 5,000/-.