LAWS(APH)-1993-10-38

SHAIK MASTANAMMA Vs. K GOPALAIAH

Decided On October 06, 1993
SHAIK MASTANAMMA Appellant
V/S
KADIYALA GOPALAIAH Respondents

JUDGEMENT

(1.) The plaintiff in O.S. No. 64 of 1992 on the file of the subordinate Judge's Court, Nellore, preferred this revision questioning the order dated 25-3-1992 ordering that a simple money suit only is maintainable and therefore to register the suit filed by the plaintiff accordingly. t

(2.) The averments in the said suit were that the defendant borrowed Rs. 15,000 / - on 16-5-1991, Rs. 15,0007- on 20-5-1991 and another stn of Rs. 50,000/- on 16-12-1991 from the plaintiff for his necessities arid executed three pronotes. The plaintiff while leading the sum of Rs. 50,000/- on 16-12-1991 insisted for security and the defendant delivered the titled deeds relating to the suit schedule property to the plaintiff with the intention of creating security for repayment of the total amount due under the promissory notes. As thedefendant failed to repay the amounts as agreed, the suit is filed for directing the defendant to deposit the amount due and if the defendant fails to deposit, to pass a final decree in favour of the plaintiff to bring the plaint schedule properties to sale to recover the entire amount with interest and costs. The plaint was returned by the Court as not maintainable in the absence of a written contract as to the intention to create security by depositof the title deeds- The plaintiff represented the same stating that Section 58(f) of the Transfer of Property Act contemplates that mere delivery of title deeds creates security for the debt. The Court ultimately passed on order on 25-3-1992 stating that since there is no contract in writing to show that the title deeds were handed over with an intent to create security, a simple money suit alone is maintainable and directed the office to register the suit accordingly. The same is questioned in this revision.

(3.) Learned Counsel for the petitioner contends that the Court below erred in holding even before registration of the plaint, that the suit for decree for the sale of the mortgaged property for recovery of the amount due to him, is not maintainable and the same is maintainable only as a simple suit for recovery of money. He further contends that even in the absence of a written document or memorandum, mere delivery of title deeds amounts to creating security. Counsel for the respondent, on the other hand, contends that written memorandum is essential showing the intent to create security thereon and in the absence of such written.document, the transaction is not called a mortgage by deposit of title deeds.