Dr. Narayana Pisharadi and others v. STANCASH CHITS (P) LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 29[TH] DAY OF APRIL 2022 / 9TH VAISAKHA, 1944** ## **OP(C) NO. 1111 OF 2021** **(OS 4/2021 OF PRINCIPAL SUB COURT THRISSUR)** ## **PETITIONER/S:** 1 DR. NARAYANA PISHARADI AGED 65 YEARS S/O.LATE DR.SAROJINI PISHARASSIAR, KATTUR PISHARATH VEETTIL, SHORNUR ROAD, THRISSUR VILLAGE, DESOM, THRISSUR TALUK. 2 JAYA NARAYANAN AGED 59 YEARS W/O.DR.NARAYANAN PISHARADI, KATTUR PISHARATH VEETTIL, SHORNUR ROAD, THRISSUR VILLAGE, DESOM, THRISSUR TALUK. 3 ROHITH PISHARADI AGED 35 YEARS S/O.DR.NARAYANAN PISHARADI, KATTUR PISHARATH VEETIL, SHORNUR ROAD, THRISSUR VILLAGE, DESOM, THRISSUR TALUK. 4 ABHIJITH PISHARADI AGED 31 YEARS S/O.DR.NARAYANAN PISHARDI, KATTUR PISHARATHVEETIL, SHORNUR ROAD, THRISSUR VILLAGE, DESOM, THRISSUR TALUK NOW EMPLOYED AT U.A.E. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ROHITH PISHARADI, THE THIRD PETITIONER (P.A.DEED PRODUCED EXT.P1). BY ADVS. N.M.MADHU C.S.RAJANI ## **RESPONDENT/S:** STANCASH CHITS (P) LTD. REGD. OFFICE CHEMBUKAVU VILLAGE,COLLEGE ROAD, THRISSUR TALUK, REP. BY LITIGATION CLERK, BABU M., AGED 57 YEARS, S/O.ANTONY, MANJALI HOUSE, MAHATMA STREET, OLLUKKARA, THRISSUR, PIN- 680 655. BY ADVS. LIJI.J.VADAKEDOM RAJEEV JYOTHISH GEORGE TOM E. JACOB REXY ELIZABETH THOMAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09.11.2021, THE COURT ON 29.04.2022 DELIVERED THE FOLLOWING: O.P.(C) No.1111 of 2021 -2- ## **JUDGMENT** Dated this the 29[th] day of April, 2022 The petitioners are defendants 3 to 6 in O.S.No.4 of 2021 pending on the files of the Principal Sub Court, Thrissur. The first respondent herein has filed the suit seeking a decree for recovery of an amount of Rs.57,50,000/- with 18% interest from the defendants, charged on the plaint schedule property. As per the averments in the plaint, defendants 1 and 2 had joined a kuri conducted by the plaintiff and had availed the prized kury amount after executing necessary documents. Later, when the plaintiff demanded more security for the amount, the title deed of the first petitioner was deposited and an equitable mortgage created by deposit of title deeds. Defendants 1 and 2 are not made parties to this original petition. The first petitioner is the O.P.(C) No.1111 of 2021 -3- third defendant in the suit. Petitioners 2 to 4 are arrayed as defendants 4 to 6, alleging that, subsequent to the deposit of title deeds, first petitioner had created a settlement deed in their favour. The petitioners' case before the trial court is that the third respondent is suffering from bipolar disease and had entered into a sale agreement with one Hammeed. Although the agreement was terminated subsequently, the title handed over to Hammeed during the subsistence of the agreement was not returned. The plaintiff in collusion with Hammeed had filed the suit on the strength of that document. According to the petitioners, the first petitioner had not deposited any title deed or created equitable mortgage with respect to the plaint schedule property. 2. In the suit, the petitioners filed I.A.No.4 of 2021, seeking permission to deposit the entire plaint claim and to return the O.P.(C) No.1111 of 2021 -4- original of the title deed deposited by the first petitioner. The first respondent opposed the prayer, contending that the documents can be released only after the decree passed in the suit is satisfied. By Ext.P8 order, the trial court dismissed the application, upholding the objection of the first respondent. Hence, this original petition. 3. Learned Counsel for the petitioner contended that, the petitioners having volunteered to deposit the entire plaint claim, the trial court ought to have released the title deeds. Instead the trial court took a hyper technical view by relying on Section 60 and 83 of the Transfer of Property Act, 1882 completely overlooking the court's inherent power to grant any relief under Section 151 of CPC. 4. Learned Counsel for the first respondent contended that the impugned order being well reasoned, warranted no interference in exercise O.P.(C) No.1111 of 2021 -5- of the jurisdiction under Article 227. The decisions in _**Padam Sen v. State of U.P. [AIR 1961 SC 218], State of Rajasthan and another v. M/s.Ferro Concrete Construction Pvt.Ltd [(2009) 12 SCC 1]** and_ _**Manjeri Municipality, Manjeri v. A.M.Mohammed Ali [ILR 2015 (2) Kerala 69]**_ are relied on to contend that the inherent power saved by Section 151 of the Code is not intended to be exercised over the substantive rights which a litigant possesses. Reference is made to Sections 60 and 83 of the Transfer of Property Act to point out that the learned Sub Judge had rightly held that an application for return of title deeds by the mortgagor has to be filed before institution of the suit for enforcement of the mortgage and even there, the mortgagor should volunteer to deposit the entire amount. It is submitted that in the instant case, the petitioners had approached the court after ## O.P.(C) No.1111 of 2021 -6- institution of the suit and their offer was to deposit the amount conditionally. Hence, the trial court had rightly rejected the request for release of the title deed. 5. Section 58 defines mortgage as the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. As per Section 58(f), mortgage by deposit of title deeds takes place when a person delivers to a creditor or his agent a document of title to immovable property, with intent to create a security thereon. Section 60, dealing with the mortgagor's right of redemption, reads as under; “ _60. Right of mortgagor to redeem.—At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the_ O.P.(C) No.1111 of 2021 -7- _mortgage money, to require the mortgagee(a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c)at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem, and a suit to enforce it is called a suit for redemption.”_ 6. The other relevant provision, _viz_ , Section 83; is also extracted hereunder for easy reference; “ _83. Power to deposit in Court money due on mortgage.—At any time after the principal money 4 [payable in respect of any mortgage_ O.P.(C) No.1111 of 2021 -8- _has become due] and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.”_ 7. Section 60 enables the mortgagor to pay the mortgage-money to the mortgagee and demand delivery of all documents relating to the mortgaged property in the possession or power of the mortgagee. Section 83 envisages deposit of the principal money payable in respect of the mortgage to the account of the mortgagee, by depositing the amount in the court in which the mortgagor could have instituted a suit for redemption of the mortgage property. In both instance, the payment/deposit has to be made prior to the institution of the suit by the mortgagee. This precise question was considered in _**Poulose** (supra)_ . Therein, after careful scrutiny of Sections 60 and 83, it is held that O.P.(C) No.1111 of 2021 -9- the remedy available to the mortgagor under the provisions aforementioned has to be invoked before the mortgagee files a suit for enforcement of the mortgage. The trial court rightly relied on the decision in _**Poulose**_ (supra), for declining the request for release of the title deed. 8. The contention that, _dehors_ Sections 60 and 83 of the Transfer of Property Act, the trial court could have ordered release of the title deeds by exercising its power under Section 151 cannot be countenanced, as Section 151 CPC cannot be resorted to, as if the provision is a panacea for all ailments. As held by the Apex Court in _**Padam Sen,**_ the inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it and is not a power to be exercised over the substantive rights of a litigant. For that, specific powers have to be conferred on the ## O.P.(C) No.1111 of 2021 -10- Courts for passing orders affecting substantive rights of a party. Such powers will not come within the scope of inherent powers of the Court, which essentially is the power to regulate the court's practice and procedure. The legal position is ex-posited well in _**M/s.Ferro Concrete**_ _**Construction Pvt.Ltd**_ by holding that Section 151 cannot be invoked with reference to a matter covered by a specific provision in the Code and cannot be used either to create or recognise rights, or to create liabilities and obligations not contemplated by any law. After detailed analysis of the precedents on Section 151, a Division Bench of this Court held in _**Manjeri Municipality, Manjeri v. A.M.Mohammed Ali [ILR**_ _**2015 (2) Kerala 69]**_ that, if there are express provisions covering a particular topic, then no power shall be exercised in respect of the said topic, otherwise than in the manner prescribed by O.P.(C) No.1111 of 2021 **==> picture [23 x 8] intentionally omitted <==** the provisions. Both grounds urged on behalf of the petitioners having been repelled, the original petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.1111 of 2021 -12- ## **APPENDIX OF OP(C) 1111/2021** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE POWER OF ATTORNEY| |---|---| ||DATED 02/12/2015.| |Exhibit P2|TRUE COPY OF THE PLAINT IN| ||O.S.NO.4/2021 ON THE FILES OF THE SUB| ||COURT, THRISSUR.| |Exhibit P3|TRUE COPY OF THE INJUNCTION PETITION| ||DATED 04/01/2021 (IA NO.2/2021) IN| ||O.S.NO.4/2021.| |Exhibit P4|TRUE COPY OF THE ADVERTISEMENT IN| ||MATHRUBHOOMI DAILY DATED 26/05/2015,| ||THRISSUR EDITION.| |Exhibit P5|TRUE COPY OF THE OBJECTION DATED| ||23/01/2021 FILED BY THE PETITIONERS TO| ||EXT.P3.| |Exhibit P6|TRUE COPY OF THE APPLICATION DATED| ||23/01/2021 FILED AS I.A.NO.4/2021 IN| ||O.S.NO.4/2021.| |Exhibit P7|TRUE COPY OF THE OBJECTION FILED BY| ||THE RESPONDENT TO EXT.P6.| |Exhibit P8|TRUE COPY OF THE ORDER DATED| ||25/03/2021 IN I.A.NO.4/2021 IN| ||O.S.NO.4/2021 PASSED BY THE PRINCIPAL| ||SUB COURT, THRISSUR.|