SUMAN LATA Vs. BANK OF INDIA

JUDGEMENT

(1.) This suit has been filed seeking permanent injunction, recovery of Rs.25 lacs along with pendente lite and future interest and decree of declaration that the equitable mortgage of the property being the entire first and the second floor along with roof and terrace rights with common rights and facilities and with the proportionate right of the underneath the freehold property bearing No.48, Bhera Enclave, Paschim Vihar, New Delhi-110087 admeasuring 248.20 sq yds effected by the defendant No.2 in favour of the defendant No.1 bank vide Hypothecation cum Loan Agreement dated 13.1.2009 is null and void and unenforceable.

(2.) It is the plaintiff's case that they are owners of the suit property by way of a sale deed dated 22.8.2008 (Ex.PW1/1). The right of the defendant No.1 to file written statement was closed on 6.12.2012. Defendant No.2 was proceeded ex parte on 6.11.2013. He has not represented by any counsel. On 3.11.2014, this Court had noted that in view of the fact that the right to file WS has been closed, there is no necessity for framing of issues. The defendant's witnesses could not have led any evidence therefore the plaintiff's case is entirely unrebutted.

(3.) The learned counsel for the plaintiff would submit that insofar as defendant No.2 has no right in the property, he could not convey a better title than what he had. He relies upon the dicta of the Hon'ble Supreme Court in Subudinikar & Ors. vs. Sabiti Rani Deb, 2012 4 GauLT 338, para 19 of which reads as under: