- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2937 of 2007 IN SUIT NO. 986 of 2004 Housing Development Finance Corporation Ltd. ...Plaintiff V/s. Vijay R. Hingorani & Ors. ...Defendants Mr. Sanjay Udeshi i/b. Sanjay Udeshi & Co. for plaintiffs Mr. Sreeji a/w Ms. Preeti Menon i/b. M/s. Sreeji & Lal for defendant no.1 CORAM: SMT.ROSHAN DALVI, J CORAM: SMT.ROSHAN DALVI, J CORAM: SMT.ROSHAN DALVI, J 22nd July, 2008 22nd July, 2008 22nd July, 2008 P.C. P.C. P.C. . This notice of motion is taken out by defendants 1 and 2 who have taken loan from the plaintiff under a Loan Agreement dated 11-10-1996. The initial loan was for Rs. 7 lacs. The defendants executed a promisory note for that sum on the same date. Defendants 3 & 4 also executed a letter of guarantee on 30-7-1996 and thereafter on 27-9-1996. 2. Under the Loan Agreement the defendants interalia agreed to create a security of loan of mortgage of property. Clause 3.1 runs thus:- "Security for the loan by Mortgage of Property:- The borrower agrees and undertakes that the - 2 - principal sum of the loan, commitment and other charges and any other dues under this Agreement shall be secured by mortgage of the property described in the Schedule (hereinafter referred to as "the property") and HDFC shall have the right to decide, in its sole discretion, the type of mortgage or any other security and or additional security it may require and the borrower shall be bound to execute the mortgage accordingly and furnish any such other or additional security as required by HDFC." It is, therefore, seen that the loan granted in 1996 was to be secured by mortgage of the property of the defendants mentioned in the Schedule thereto as decided in future by the plaintiffs. The defendants would also be required to furnish additional security as required by the plaintiffs. This Loan Agreement was not an agreement by deposit of Title Deeds. It was a simplicitor Loan Agreement which was to be secured by mortgage of a property thereafter. 3. Defendants 1 and 2 contend that the Loan Agreement should have been stamped as required under Article 6 of Schedule I of the Bombay Stamps Act. Article 6 runs thus:- "6. AGREEMENT RELATING TO DEPOSIT OF TITLE DEEDS, PAWN, PLEDGE, OR HYPOTHECATION, that is to say, any instrument evidencing an agreement relating to- (1) The deposit of title deeds or (Five rupees for every five instrument constituting or being hundred or part thereof for evidence of the title to any the amount secured by such property whatever (other than a deed subject to the minimum marketable security), where such of one hundred rupees and - 3 - deposit has been made by way of the maximum of five lakh security for the repayment of money rupees.)" advanced or to be advanced by way of loan or any existing of future debt; 4. This Article, therefore, relates to an agreement which creates a deposit of Title Deeds. It does not relate to any agreement in which a mortgage has to be created at a future date. Consequently, the Loan Agreement does not require to be stamped under Article-6. Notice of Motion is dismissed. No order as to costs. (SMT.ROSHAN DALVI,J) (SMT.ROSHAN DALVI,J) (SMT.ROSHAN DALVI,J)