1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.269 OF 2006 IN NOTICE OF MOTION NO.3630 OF 2003 IN SUIT NO.918 OF 2002 ... M/s.N.S.Trading Company ...Appellant v/s. ICICI Bank Limited and ors. ...Respondents ... Mr.A.A.Joshi i/b Mrs.Anjali Helekar for the Appellant. Mr.Khanapurkar with Mr.S.Chandrana i/b M.K.Ambalala & Co. for Respondents. ... CORAM: D.K.DESHMUKH & V.R.KINGAONKAR,JJ DATED: 1st April, 2010 P.C.: 1) By this Appeal the Appellant challenges the order dated 18th March, 2006 passed by the learned single Judge of this Court in Notice of Motion No.3630 of 2003. 2 2) The relevant facts are, the ICICI filed a suit against Ishar Alloys Steel Ltd. in its capacity as a Debenture Trustee praying for a money decree in sums of Rs. 2,50,00,000/-, Rs.11,61,80,000/-, Rs.60,995/- and Rs.90,214/-. A decree on the mortgage property was also claimed. In that Suit, Notice of Motion was taken out being Notice of Motion No.1027 of 2002 claiming various reliefs including an order for appointment of Court Receiver on the property which was claimed to be mortgaged. One of the properties mortgaged, according to the Plaintiff, was Plot No.982, in the Steel Warehousing Complex, Village : Kalamboli, Taluka: Panvel, District: Raigad. The learned single Judge by order dated 18th April, 2002 granted interim order appointing the Receiver on the properties which were claimed by the Plaintiff to be mortgaged to it including the 3 aforesaid property i.e. Plot No.982. Notice of Motion No.3630 of 2003 was taken out by M/s.N.S.Trading Co. claiming that the order appointing a Receiver on the aforesaid godown on Plot No.982 should be set aside. One of the grounds on which that order was sought was that the property is not mortgaged in favour of the Plaintiff. In the affidavit filed in support of that Notice of Motion, it was specifically claimed that the claim of the Plaintiff that there is English Mortgage of the property in their favour is not correct, and that there is no mortgage of that property created in favour of the Plaintiff. Reply was filed on behalf of the Plaintiff to that Notice of Motion. The learned single Judge decided the Notice of Motion by order dated 18th March, 2006. The learned single Judge dismissed the Notice of Motion. 4 3) The learned Counsel appearing for the Appellant submitted that a specific case was pleaded before the learned single Judge on behalf of the Appellant that there is no mortgage of the property in favour of the Plaintiff. This allegation could have been effectively replied by the Plaintiff by producing the registered deed by which the mortgage was created in favour of the Plaintiff. But such document has not been produced. He submitted that even the Appellant sought inspection of the deed, it was not given. In these circumstances, according to the learned Counsel, as there is no valid mortgage in favour of the Plaintiff-Bank, the learned single Judge was not justified in rejecting the Notice of Motion filed by the Appellant. 5 4) On the other hand, on behalf of the Bank it is submitted that the mortgage is created by a Trust-Deed and it is also claimed that that the Trust-Deed is a registered document. But neither a copy of the registered deed is produced nor any statement is pointed out in the pleading or affidavit claiming that the trust-deed is a registered-document. 5) Now, if in the light of these rival submissions the record of the case is perused, it becomes clear that the Plaintiff claimed that the godown is mortgaged to it by the Trust-Deed. In paragraph 16 of the affidavit filed in support of the Notice of Motion, the Appellant had categorically stated that though in plaint in paragraph 19 it is claimed by the Plaintiff that there is a English Mortgage in favour of the Plaintiff 6 of the property, no English Mortgage is produced. It was claimed that the title-deeds are also not in possession of the Plaintiff. Reply has been filed to the affidavit in support of the Notice of Motion by the Plaintiff-Bank and in that reply except saying that there is a mortgage in its favour, no document is produced to claim that by a valid registered document a mortgage has been created. Perusal of provisions of Section 58 of the Transfer of Property Act shows that when a English mortgage is created, it results in transfer of mortgaged property absolutely to the mortgagee. Obviously, therefore, in view of the provisions of the Registration Act, a English Mortgage can be brought about only by a registered document. The requirement of there being a registered instrument creating mortgage is also incorporated in Section 59 7 of the Transfer of Property Act. Therefore, in our opinion, the moment on behalf of the Appellant a question as to the existence of a valid mortgage was raised, it was for the Plaintiff-Bank to produce the registered document by which the mortgage is created in its favour. To this date no such document has been produced. In our opinion, this was the relevant and material aspect which ought to have been considered by the learned single Judge. However, though that aspect has been raised specifically, it has not been considered by the learned single Judge. However, fact remains that huge amount is due to the Plaintiff-Bank from the original Defendants. It is also clear that on the date on which the trust deed was entered into the property belonged to the Defendant No.1, and therefore, in our opinion, following order would meet the ends of justice. 8 O R D E R i.The order passed by the learned single Judge dated 18th March, 2006 passed in Notice of Motion No.3630 of 2003 is set aside; ii.Notice of Motion No.3630 of 2003 is granted in terms of prayer clause (a), however, the Plaintiff-Bank shall be at liberty to take out a motion claiming the same reliefs in relation to Plot No.982 after producing necessary documents. However, while taking up such proceedings, the Plaintiff shall serve a copy thereof with necessary notice on the Appellant. iii.During the pendency of the suit, the first Defendant and the Appellant who 9 claims through him are restrained from transferring, alienating, creating third party rights in Plot No.982 mentioned in Exh.A to the plaint. iv.Appeal disposed of. (D.K.DESHMUKH, J.) (V.R.KINGAONKAR,J.)