SATPAL Vs. VINOD KUMAR

JUDGEMENT

(1.) DEFENDANT Satpal having lost in both the courts below has come up by way of instant second appeal. Respondents-plaintiffs Vinod Kumar and Ramesh Kumar filed suit against defendant-appellant Satpal alleging that the defendant mortgaged 15 bighas land i.e. 300/1623 share of 81 bighas 3 biswas land, in which defendant in all had half share, with the plaintiffs, for Rs.4,99,000/- vide mortgage deed dated 21.10.1999. The mortgage was without possession. The defendant was to pay interest @ 2% per month on the mortgage money. The defendant had right to redeem the mortgage within two years, failing which it was to be deemed to be sale of the aforesaid land. Partition mutation has been reflected in the revenue record, whereby 39 bighas 9 biswas land has fallen to the share of defendant and accordingly, the mortgage shall be deemed to be regarding 300/789 share thereof. The defendant made application under the Punjab Redemption of Mortgage Act, 1913 (in short ? the Act) before the Collector and deposited principal mortgage amount. The Collector, vide order dated 08.04.2002, directed the mortgagor-defendant to deposit interest @ 18% per annum (reduced rate of interest as conceded by counsel for the mortgagees) up to 09.05.2002, failing which the redemption application shall be deemed to have been dismissed, whereas on deposit of the amount, the mortgage shall be deemed to be redeemed. The defendant-mortgagor, however, failed to deposit the interest amount. The defendant also filed a suit for redemption of mortgage, but the same was withdrawn. The plaintiffs filed application under Section 8 of the Bengal Land (Redemption and Foreclosure Regulation XVIII of 1806) Act (in short ? Bengal Land Act) for foreclosure of the mortgage and making the conditional mortgage as absolute sale. Notice of the said application was given by learned District Judge to the defendant-mortgagor, who appeared through counsel and the said papers were consigned on 04.01.2003. However, even till one year thereafter, the defendant-mortgagor did not deposit the mortgage money. Thus, defendant's right to redeem the mortgage has extinguished and the mortgage has become absolute sale after foreclosure of right to redeem and plaintiffs have thus become owners of the suit land. The defendant admitted the factum of mortgage, but pleaded that right of redemption within two years mentioned in the mortgage deed and conditional sale thereafter is a clog on equity of redemption. The defendant, however, admitted that the mortgage money has not been paid back and the suit land is under mortgage. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sonepat, vide judgment and decree dated 11.10.2006, decreed the plaintiffs' suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Sonepat, vide judgment and decree dated 12.02.2007. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that condition in the mortgage restricting the redemption period to two years and making it conditional sale thereafter amounts to clog on equity of redemption. Reliance in support of this contention has been placed on two judgments of Hon'ble Supreme Court namely Murarilal since deceased and after his death his newly substituted legal representatives Umedi Lal and others vs. Devkaran since deceased and after his death his legal representatives , Jagan Prasad and others reported as AIR 1965 Supreme Court 225 (V 52 C 41) and Pomal Kanji Govindji vs. Vrajlal Karsandas Purohit reported as 1988 (2) R. R. R. 431. The contention, although apparently attractive, is in fact devoid of merit. In both the judgments cited by learned counsel for the appellant, the mortgagors had filed suits for redemption of mortgage, whereas in the instant case, the mortgagees have filed suit for foreclosure of mortgage. The mortgagees never disputed the defendant's right of redemption of mortgage, but the defendant never wanted to redeem the mortgage. Consequently, it cannot be said that there was any clog on equity of redemption. In fact, the defendant-mortgagor availed of four opportunities for redemption, but did not pay the mortgage money i.e. principal mortgage amount and interest accrued thereon. Admittedly, according to the mortgage deed, agreed rate of interest was 2% per month. However, in redemption application filed by defendant-mortgagor under the Act, counsel for mortgagees agreed to interest at reduced rate of 18% per annum, but the defendant-mortgagor did not deposit interest even at the said reduced rate. The defendant thereafter filed suit for redemption of the mortgage, but still the defendant did not redeem the mortgage and rather got the suit dismissed as withdrawn even before mortgagees could put in appearance in the said suit. Third opportunity for the defendant to redeem the mortgage was when the mortgagees filed petition under the Bengal Land Act. Even then the defendant did not avail of opportunity to redeem the mortgage. Thereafter, fourth and last opportunity to redeem the mortgage was to offer the mortgage money in the instant suit filed by the mortgagees. However, at no stage, the defendant-mortgagor agreed to pay the mortgage money in terms of mortgage deed or even at reduced rate of interest i.e. 18% per annum instead of agreed rate of interest i.e. 2% per month or 24% per annum. Consequently, the contention regarding clog on equity of redemption is completely unsustainable and devoid of merit because defendant himself never wanted to redeem the mortgage. Learned counsel for the appellant also contended that impugned mortgage deed is agreement to sell and plaintiffs could seek specific performance thereof as it is mentioned in the mortgage deed that if the mortgagor failed to get the mortgage redeemed within two years, the mortgagees shall be entitled to get the sale deed of the suit land executed in their favour. Again, the contention although apparently attractive, is without any substance. Admittedly, the transaction was a mortgage. Even in the written statement, the defendant admitted that it was a mortgage. Consequently, the plaintiffs had a right to file suit for foreclosure of the mortgage. In the instant case, as already noticed, the defendant failed to redeem the mortgage in spite of four opportunities. Consequently, in terms of the mortgage, the plaintiffs-mortgagees have become owners of the suit land and there is no legal requirement to execute any sale deed in their favour nor they were required to file a suit for specific performance of the agreement. Learned counsel for the appellant also contended that there is no period for redemption of mortgage as held by Full Bench of this Court in the case of Ram Kishan and others vs. Sheo Ram and others reported as (2008-1) P. L. R. 1. The contention is again untenable. The said judgment relates to period of redemption of usufructuary mortgage, whereas in the instant case, it was simple mortgage without possession. Even otherwise, in the case of usufructuary mortgage also, the mortgagor retains the right of redeem, but the question of foreclosure has to be adjudicated upon. In the instant case, the mortgage was without possession and not usufructuary mortgage. The plaintiffs of course pleaded that vide affidavit dated 04.10.2002, the defendant had delivered possession of the suit land to the plaintiffs. However, this was almost after three years of the creation of mortgage and consequently, it cannot be said to be usufructuary mortgage. Moreover, the plaintiffs claimed relief of possession and even the defendant pleaded that possession was never delivered to the plaintiffs. Consequently, by no means, it can be said that it was usufructuary mortgage. For the reasons aforesaid, I find that there is no illegality or perversity in the judgments of the courts below warranting interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of merit and is accordingly dismissed.