P. Karuppuchami Goundar and K. Karunakaran vs R. Jeganathan

Honourable Mr. Justice M. Jaichandren

This civil revision petition has been filed against the order, dated 29.12.2008, made in I.A.No.66 of 2008, in O.S.No.30 of 2004, on the file of

the Additional District Court, Fast Track Court, Dindigul.

The petitioners in the civil revision petition are the plaintiffs in the suit, in O.S.No.30 of 2004. The said suit had been filed praying for a

preliminary decree, directing the defendant therein to pay the sum of Rs.5,54,000/-, with interest thereon, at the rate of 18% per annum, from the

date of the plaint till its realisation, and in default, to pass a final decree for the sale of the mortgaged properties.

The petitioners have stated that the defendant had executed a promissory note in favour of the plaintiffs, based on which the defendant had

borrowed a sum of Rs.5 lakhs, on 20.9.1997, for carrying on his business in automobile spare parts. The defendant, while acknowledging the

debt, had offered the properties mentioned in the plaint, as security, by way of a mortgage, on 24.11.1997.

It had also been stated that the defendant had also executed a memorandum accompanying the deposit of deeds, on 24.11.1997. Since, the

defendant did not repay the loan amount and the interest thereon, the plaintiffs had been constrained to file the suit, in O.S.No.162 of 1998,

subsequently, renumbered as O.S.No.30 of 2004, on the file of the Additional District Judge (Fast Track Court), Dindigul. While so, the

peititoners have filed an interlocutory application, in I.A.No.66 of 2008, in O.S.No.30 of 2004, to permit the petitioners to mark the document,

dated 24.11.1997, as Exhibit A-2. However, the trial Cour had dismissed the said interlocutory appication stating that the said document cannot

be marked as an exhibit, as prayed for by the petitioners, as the said document had not been registered, as per the relevant provisions of law.

Challenging the order, made in I.A.No.66 of 2008, in O.S.No.30 of 2004, on the file of the Additional District Judge, (Fast Track Court),

Dindigul, the petitioners have preferred the present civil revision petition before this Court.

The main contention of the learned counsel appearing on behalf of the petitioners is that the trial Court had failed to see that the transaction in

question is only an equitable mortgage and it does not require registration, as held by the trial Court. He had also submitted that the Court below

had failed to see that the doucment sought to be marked as an exhibit is only an evidence of an antecedent debt and the depositing of title deeds,

constitute an equitable mortgage, u/s 58(f) of the Transfer of Property Act, 1882.

The learned counsel had submitted that the registration is not necessary, in respect of a memorandum for depositing of title deeds. Since, the

document sought to be marked, as Exhibit A-2, is only a memorandum for the deposit of title deeds, the trial Court had erred in rejecting the

request of the petitioners to mark the said document, as an exhibit, in the suit, in O.S.No.30 of 2004.

The learned counsel for the petitioners had relied on the following decisions in support of his contentions:

1) Rachpal Mahraj vs. Bhagwandas Daruka and others (AIR (35) 1948 Pat 251)

Ponnuswamy Vs. V. Santhammal and Others, and

B.R. Shamala and B.R. Shyamala Devi and Another Vs. Kundan S. Bhayani and Others,

Per contra the learned counsel appearing on behalf of the respondent had submitted that the document sought to be marked by the petitioners,

as Ex.A-2 is a mortgage deed, as described in the plaint filed by the petitioners, in O.S.No.30 of 2004. The document, dated 24.11.1997,

allegedly, creates a mortgage in favour of the petitioners. Hence, the trial court was right in rejecting the request of the petitioners to mark the said

document, as an exhibit, as it had not been registered, as per the relevant provisions of law. As such, the said docment cannot have any evidentiary

value to support the case of the petitioners.

In view of the averments made on behalf of the petitioners, as well as the respondent, and on a perusal of the records available, this Court finds

that the document sought to be marked by the petitioners, as Exhibit A-2, by way of filing an interlocutory application, in I.A.No.66 of 2008, had

been described in the plaint filed in O.S.No.30 of 2004, as a document creating a mortgage. It is an admitted fact that the document in question

had not been registered. As such, the trial Court was right in rejecting the request of the petitioners for marking the said document, by the

petitioners, in support of their case, especially, when the suit filed by the petitioners, in O.S.No.30 of 2004, is for recovery of money, based on a

promissory note. As such, the petitioners have not shown any cause or reason for his Court to interfere with the order, dated 29.12.2008, made in

I.A.No.66 of 2008, in O.S.No.30 of 2004, passed by the Additional District Judge, (Fast Track Court), Dindigul. Accordingly, the civil revision

petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.