*1* nms.2773.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2773 OF 2009 IN SUIT NO.1240 OF 2009 Housing Development Finance Corporation Limited. ..Plaintiff -Versus- Citi Associates and others. ..Defendants .......... Simil Purohit i/b Wadia Gandhy & Company, for the Plaintiff. Tushar Bhavsar i/b Manoj Bhatt for the Defendants. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 01st December, 2010. P.C. 1 Heard learned counsel for the parties. Perused with their assistance the plaint and annexures, so also, the affidavits placed on record. 2 The suit is filed for a decree against the Defendant Nos.1 to 4 in the sum of Rs.2,78,62,188/- and interest as claimed in the particulars of claim at Annexure-E to the claim. 3 Mr.Purohit appearing in support of the Notice of Motion submits that this is not pure a money claim but the dues of Plaintiff are secured by a valid and subsisting mortgage of the immovable property more particularly described in the schedule annexed at Annexure-A to the plaint. The loan is admitted and all that is stated in the reply is that the loan amount is repaid in full, however, no documents are produced. In fact part payments have been made in the proceedings under Section 138 *2* nms.2773.09 of the Negotiable Instruments Act and giving credit for that sum, what is now payable is the aforesaid amount which is secured as above. 4 On the other hand, it is stated in the Written Statement of the Defendant Nos.1 and 2, so also, reiterated in the affidavit in reply that the suit claim is barred by limitation. In any event the alleged transaction is of the year 1997-1998 and the claim to secure the decreetal amount by injunction is belated. Further it is stated that there is no mortgage and all that has transpired is that financial assistance was given by the Plaintiff and that financial assistance is by way of loan disbursement. However, the sanction was of Rs.1 crore and the Plaintiff disbursed only Rs.58 lacs. In fact the loan was sought for much more amount because it was requirement of the Defendants. The Defendants state that the entire amount of Rs.58 lacs has been received from various purchasers who availed individual loan by mortgaging their individual flats. This is a specific stand taken in the Written Statement and particularly in paragraph No.14 it is stated that no original documents in relation to the property were ever deposited but only photocopies were given for verification and no equitable mortgage is created by the Defendants. 5 Mr.Purohit does not dispute that the original documents of title are not available. The Bank is relying upon some copies, however, in his submission the copies of title deeds being handed over, is enough to create equitable mortgage. 6 To my mind the submission of Mr.Purohit is not well founded. The Written Statement must be read as whole. The Written Statement takes a specific stand that the claim of Plaintiff is not secured by a mortgage of any immovable property. Further the amount has been repaid by the flat purchasers who availed of individual loans from the Plaintiff against security of their flats. That transaction would demonstrate, *3* nms.2773.09 according to the Defendants, that the claim of Plaintiff has been satisfied and repaid in full. Further it is denied that there was any equitable mortgage. The payments of Rs.22 lacs, in the circumstances in which the same has been made, is also set out in the Written Statement. In such circumstances, the plea that the money claim of Plaintiff being allegedly secured by a equitable mortgage as asserted, is not free from doubt. The original documents of title are admittedly not available. Therefore, at this stage, it is difficult to accept that the Plaintiff has any right in the immovable property described in schedule at Annexure-A to the plaint. Pure and simple money claim unless secured by the property or the Plaintiff prima facie demonstrating otherwise, any substantive right in the property, cannot be protected by interim injunction. 7 For all these reasons, it is clear that the Plaintiff has failed to make out a prima facie case. The Notice of Motion is devoid of any merit and it is dismissed. No costs. (S.C. Dharmadhikari, J)