1 S.B. Civil Writ Petition No. 2538/2008 Chogalal vs Addl. District Judge (Fast Track) No.2, Bhilwara & Anr. DATE OF ORDER : - 30.3.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. Dinesh Mehta, for the petitioner. Mr. Usman Gani, for the respondents. <><><> Heard learned counsel for the parties. The plaintiff filed simple suit for recover of money of Rs.2,89,000/- with the prayer that the decree for said sum be passed in favour of the plaintiff against the defendant. In alternate, the defendant may be directed to sale the Gawari in question to the plaintiff by executing the registered sale deed in favour of the plaintiff and possession be also delivered to the plaintiff by the defendant. The plaintiff also prayed for interest over the amount referred above. The plaintiff submitted document Ex.1 having title “agreement” upon which objection was raised against its admissibility by the defendant. 2 The trial court vide impugned order dated 15.12.2008 observed that the document Ex.1 is mortgage deed and since it is not registered, therefore, cannot be admitted in evidence. It is also observed that since the possession has also not been delivered to the plaintiff by the defendant while executing the document, therefore, on the said document, the stamp duty payable was equivalent to the stamp duty provided in the bond which is 5%, whereas the document has been executed on stamp of Rs.100/- only. In view of the above, the document is not in proper stamp. Learned counsel for the petitioner submitted that petitioner's suit is not suit for foreclosure nor it is a suit for redemption of mortgage by the mortgagor and petitioner's suit is only for recovery of money. To prove admission of defendant of taking loan from the plaintiff, the plaintiff wants to produce the document in question and the plaintiff is not enforcing the document in any manner so far as prayer no.1 is concerned. Therefore, the document neither required registration nor required stamp duty as leviable on mortgage deed equivalent to the stamp provided for bond. It is submitted that the plaintiff's this document is a collateral evidence only to prove the fact of admission of 3 taking loan and since the plaintiff is not enforcing or seeking relief on the basis of the document, therefore, the trial court has committed error of law by rejecting the plaintiff's documentary evidence. Learned counsel for the defendant vehemently submitted that the nature of the document is very clear and there is no illegality in the order passed by the court below. The court below rightly held that the document is mortgage deed and once it is proved that it is a mortgage deed then it cannot be admitted unless it is registered. It is also submitted that the mortgage deed requires stamp duty and the trial court held that the document has not been executed on proper stamp, therefore, a document, which is not on proper stamp cannot be admitted in evidence and on this count, the plaintiff's document cannot be admitted even for collateral purposes. However, according to learned counsel for the defendant, admitting the document in evidence will tantamount to acting upon the deed of mortgage which cannot be acted upon or enforce unless it is registered and is executed on proper stamp. I considered the submissions of learned counsel for the parties and perused the facts of the case and the 4 document Ex.1. From the document Ex.1 it is clear that there may have title “agreement” but that title is of no effect because of the reason that this document purport to say advanced the loan to the defendant on mortgaging Gawari of the defendant in favour of the plaintiff with condition that in case there will be default in payment of installments, the defendant will sale the house to the plaintiff. However, the present suit is clearly not a suit for foreclosure and the document in question is not foundational document, which is clear from the first para of the plaint, wherein the plaintiff clearly mentioned that the loan was advanced as per oral contract and the document was got executed for collateral purpose. Here in this case, the relief is not founded on the document and since there are clear plea of the plaintiff that he advanced the loan as per the oral contract and also obtained the document then to prove admission of the defendant of taking loan, the plaintiff can use the document and for that purpose, neither there is necessity nor registration nor the stamp duty. In view of the above reasons, the writ petition of the petitioner is allowed. The order of the trial court dated 5 15.3.2008 is set aside and the document Ex.1 be admitted in evidence only for the limited purpose referred above. (PRAKASH TATIA), J. c.p.goyal/-