Central Bank of India, Indore vs Durga Confectionery Works, Indore and Others

A.K. Gohil, J.—The appellant-Bank has filed this first appeal, u/s 90 of the Code of Civil Procedure, being aggrieved by the judgment and decree passed by the Court of XIth Additional Judge to the Court of District Judge, Indore in Regular Civil Suit No. 87-A/1989 on 30.07.1990 whereby the Trial Court decreed the suit of the plaintiff but has not granted the decree for recovery of decretal amount from the mortgaged property.

The facts of the case, in brief, are that the appellant-Bank filed a suit against the firm and its partners respondent Nos. 1 to 3 and also against respondent Nos. 4 and 5 as its guarantor for the recovery of Rs. 1,47,919-68 Ps. in the plaint appellant-Bank had also claimed, in prayer clause, a decree for recovery of the aforesaid amount from the mortgaged property and it was further submitted in para No. 10 of the plaint that in order to secure the re-payment of the dues of the plaintiff, the defendant No. 5 had created a mortgage of his House Nos. 465 and 467, situated at Patnipura, Indore on 21.12.1983 by deposit of title-deeds. The Trial Court by judgment and decree dated 30.7.1990 decreed title suit for the whole amount of Rs. 3,47,919-68 Ps. + Rs. 2,25,179-68 Ps for interest from the date of suit @ 13.5% p.a. and for Rs. 1,22,740.00 @ 14% p.a. with quarterly rest along with the cost. It was further directed in the decree that the appellant-Bank can recover the decretal amount from the sale of the hypothecated goods but decree was not granted to recover the amount from the mortgaged property. Therefore, the appellant-Hank has filed this first appeal against not granting the decree for recovery of decretal amount from the mortgaged property.

We have heard Mr. D.S. Kale, learned Counsel for appellant-Bank and Mr. B.L. Agrawal, learned Counsel for respondentNos.4and5 and perused the record. None appeared for respondent Nos. 1 to 3.

The submission of learned Counsel for appellant-Bank is that the Trial Court has committed an illegality in not granting decree for recovery of decretal amount from mortgaged property even after the pleadings and the evidence as well as the documentary evidence available on record for the creation of mortgage by depositing title-deeds. It was further argued by learned Counsel that the Trial Court has also not assigned any reasons for disallowing the relief of recovery of decretal amount by the sale of mortgaged property.

Mr. B.L. Agrawal, learned Counsel for respondent Nos. 4 and 5 supported the judgment and decree.

It is true that in Para No. 10 of the plaint the particulars or the mortgage and the property were pleaded and Issue No. 4 was also framed by the Trial Court. PW-1 Radhakishan, who was the Manager of the Bank, was also examined. It was stated by PW-1 that respondent No. 5 had deposited the title-deeds of his House Nos. 465 and 467, situated at Patnipura. Indore title-deed is Ex. P/26 and the memorandum which was prepared for accepting the deposit of title-deeds is Ex. P/27. The confirmation letter regarding creation of mortgage is Ex. P/28 which was given by defendant-respondent No. 5 which was also signed by him at B to B place. This PW-1 was also cross-examined by defendant No. 5. defendant No. 5 was also examined as DW-1 and in the cross-examination he also accepted that Ex. P/26 is the document of sale deed of his house. He further accepted in his cross-examination that he had received the notice from the Bank but he had not sent any reply of the notice. DW-1 has accepted his signatures on Ex. P/16 which is a letter of guarantee agreement and on Ex. P/16 which is a letter regarding deposit of title-deeds in the Bank. The Trial Court had framed issue No. 4 regarding creation of mortgage house by depositing title-deeds and after appreciating the evidence on record, the Trial Court has also recorded a positive finding on this Issue No. 4 that defendant-respondent No. 5 had deposited the title-deeds of his house for the security of the loan but has not passed any decree about the recovery of the decretal amount from the aforesaid mortgaged property.

Sub-clause (2) of Rule 15 of Order XXXIV of the Code specifically provides that where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree. Therefore, when it was pleaded and proved by the appellant-Bank in the suit that a mortgage was created by depositing title-deeds and when a specific relief was sought then appellant is legally entitled for such a decree and while decreeing the suit the Trial Court ought to have also granted a decree in favour of the appellant-Bank for realising the decretal amount from the sale of mortgaged property.

Accordingly, we allow this appeal and direct that in addition to the decree granted by the Trial Court in favour of the appellant-Bank, the appellant-Bank shall also be entitled to recover the decretal amount from the sale of the mortgaged property as has been mentioned in Para No. 10 of the plaint. The appellant-Bank shall also be entitled for cost, Counsel''s fee Rs. 500/-, if certified. Record be returned. A decree be drawn up accordingly.