IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 OP(C).No. 2580 of 2011(O) ------------------------- OS.335/2010 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: ----------------------- AJITH S.MALLAYA, AGED 50 YEARS, S/O.S.S.MALLAYA, 'SADANAND', ELAMAKKARA.P.O., EDAPPALLY SOUTH VILLAGE, PIN-682 024. BY ADVS. SRI.M.A.ABDUL HAKHIM, SRI.M.G.ANON. RESPONDENT(S): ----------------------------- 1. CANARA BANK, REPRESENTED BY ITS SENIOR MANAGER, PALARIVATTOM BRANCH, ERNAKULAM, PIN-682 025. 2. SAJAN.C.A., AGED 37 YEARS, S/O.C.V.AUGUSTINE, CHELAT HOUSE, NEERICODE, NEAR ST.JOSEPH CHURCH, ERNAKULAM. PIN-682 011. 3. C.V.AUGUSTINE, AGED 73 YEARS, S/O.VAPU CHELAT HOUSE, NEERICODE, NEAR ST.JOSEPH CHURCH, ERNAKULAM. PIN-682 011. R1 BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR, SC BY ADV. SRI. PAULY MATHEW MURICKEN, SC, CANARA BANK THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2580/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LAWYER NOTICE SENT BY THE PETITIONER TO THE 1ST RESPONDENT DTD. 15/02/2010. P2: COPY OF THE PLAINT IN O.SO.335/2010 ON THE FILE OF THE SUB COURT, ERNAKULAM DTD. 25/04/2010. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.335/2010 DTD. 22/07/2010. P4: COPY OF THE I.A.NO.4194/2011 IN O.S.NO.335/2010 DTD. 10/07/2011. P5: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN I.A.NO.4194/2011 DTD. 13/07/2011. P6: COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT IN I.A.NO.4194/2011 DTD. 15/07/2011. P7: COPY OF THE ORDER IN I.A.NO.4194/2011 IN O.S.NO.335/2010 DTD. 28/07/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2580 of 2011 --------------------------------------- Dated this 08th day of August, 2011 JUDGMENT First respondent appears through counsel. Respondents 2 and 3, learned counsel for petitioner submits are ex parte in the trial court. Moreover, having regard to the decision I propose to take in this proceeding, notice to respondents 2 and 3 is not necessary and hence is dispensed with. 2. Petitioner is the third defendant in O.S.No.335 of 2010 of the Court of learned First Additional Sub Judge, Ernakulam. That is a suit filed by the first respondent for recovery of money against respondents 2 and 3 on the strength of a loan agreement. According to the petitioner the loan is secured by equitable mortgage of property of the second respondent which is specifically mentioned in the application for loan itself. Petitioner has a contention that in spite of there being an equitable mortgage the first respondent has not proceeded against the mortgaged property, the right of petitioner as against the principal debtor is thereby lost and at any rate on account of the conduct of first respondent, his liability is discharged under Secs.139 and 141 of the Indian Contract Act. Petitioner filed O.P(C).No.2580 of 2011 -: 2 :- I.A.No.4194 of 2011 to direct the first respondent to produce title deed relating to the property of second respondent (over which, equitable mortgage was allegedly created) and also a copy of certain accounts. First respondent filed Ext.P5, counter affidavit stating that the case is listed for trial on 27.05.2011 and that the said application is preferred on the eve of trial. It is also stated in the counter affidavit of the first respondent that on checking up it was revealed that no such title deed was entrusted with the first respondent. However, first respondent requested time to collect details of the accounts sought for from the computer cell. Later, I am told that the two documents required to be produced, copy of accounts, have been produced by the first respondent in the trial court. What remained is the title deed relating to the property of second respondent which according to the petitioner was subjected to equitable mortgage. First respondent filed Ext.P6, affidavit stating that the deponent contacted Sri.P.Haridas who was the senior Manager of the first respondent (bank) during the relevant time, he confirmed that there was no equitable mortgage but, the title deed is in the custody of the bank. In Ext.P6, affidavit it was also undertaken that after thorough search the document of title is traced and if directed, it O.P(C).No.2580 of 2011 -: 3 :- can be produced in Court. Learned Munsiff passed Ext.P7, order observing that first respondent has denied creation of equitable mortgage in respect of property of second respondent and in the circumstance, production of document relating to that property is not essential to decide the controversy. Ext.P7, order is under challenge. Learned counsel for petitioner contends that having regard to the facts and circumstances of the case learned Sub Judge ought to have allowed I.A.No.4194 of 2011 and directed production of title deed as well. It is also submitted that it was pre-mature for learned Sub Judge to have entered a finding that there was no equitable mortgage relating to the property of second respondent. 3. Learned counsel for first respondent has submitted that there is no difficulty in producing the title deed of second respondent in the court below but, asserted that there was no such equitable mortgage created over the property. 4. It is seen from Ext.P7 that learned Sub Judge observed that production of document No.3 (title) is not necessary to decide the controversy since no mortgage is created in respect of that property. If petitioner has raised a contention in the written statement that there was equitable mortgage in O.P(C).No.2580 of 2011 -: 4 :- favour of the first respondent, created by the second respondent and if that has any bearing on the liability of petitioner, that may be a matter which learned Sub Judge has to look into, if it is relevant for decision of the dispute involved in the suit. Pre- mature finding made in Ext.P7 cannot be sustained. The submission of learned counsel that first respondent will produce the document of title in Court is recorded. Resultantly this original petition is disposed of as follows: Observations made by the learned Sub Judge in Ext.P7, order as if there is no equitable mortgage created over the property of second respondent is set aside and the question whether there is equitable mortgage created by the second respondent in favour of first respondent shall be decided by the learned Sub Judge if it arise from the pleading of the parties and if it is relevant for decision of the dispute involved. The submission of learned counsel that first respondent will produce the document of title in the court below is recorded. First respondent shall produce the document in the trial court within two weeks from this day. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-