Order 3

Order Details: COPY OF ORDER
Pdf Text: CS DJ 1029/23
HARINDER KUMAR Vs. SUDHIR AHUJA
21.09.2023
Present: None.
Today, the case is fixed for order on the application under
Order 39 Rules 1 & 2 CPC and application under Order 38 Rule 5 CPC.
In the application under Order 39 Rules 1 & 2 CPC, the
plaintiff has sought the interim relief to restrain the defendant and his
agents from selling, mortgaging, transferring or creating any third party
interest in the shop No. 226, Katra Nawab, Chandni Chowk, Delhi,
hereinafter mentioned as shop in question.
The present suit is a suit for recovery of money of
Rs.43,91,803/- along with pendente lite/future interest and for permanent
injunction. As per the plaint, the plaintiff gave the loan of Rs. 36 lakh in
cash to the defendant for a period of 18 months and a loan agreement dated
27.06.2022 (hereinafter mentioned as the ‘loan agreement’) was executed
between them, wherein it was agreed that if the defendant failed to return
the amount to the plaintiff, then the plaintiff would take possession of the
shop and the defendant would transfer the said shop in the name of the
plaintiff or would give the double amount of the borrowed money. The loan
agreement was notarized on 27.06.2022. The plaintiff has also relied upon a
receipt issued by the defendant, showing receipt of Rs. 36 lakh in cash with
assurance to return the amount within 18 months and that he would transfer
the Shop No. 2 to 6, Katra Nawab, Chandni Chowk or would give double
amount, if he would fail to pay the borrowed money.
Admittedly, the tile documents of the property was not
-- 1 of 3 --
:2:
deposited with the plaintiff. It was a mere written agreement, wherein it
was assured that if the defendant would not make payment, then the
plaintiff could take the possession of the shop in question. This agreement
may be read as a mortgage agreement only if it was registered. Since, it
was not registered in terms of the Section 59 of the Transfer of Property
Act, therefore, it can not be treated as a mortgage agreement. Resultantly,
this agreement shall not create any relationship of mortgagor and
mortgagee between the parties. Similarly, it does not create any charge
over the shop in question under Section 100 of T.P. Act for want of
registration under Section 17 (1) (b) of the Registration Act, 1908. Since,
the loan agreement does not create any mortgage or charge over the shop in
question, therefore, it can be read only as the loan agreement.
It is observed here that for recovery of loan on the basis of an
agreement, the immovable property of the defendant can not be dealt with.
It is not a suit pertaining to the shop in question, but it is a case of recovery
of money. Passing any restrain order in respect of the immovable property
of the defendant in a suit for recovery of money would be unjust.
Therefore, the court can not pass any order under Order 39 Rules 1 & 2
CPC regarding the immovable property of a defendant in a suit of recovery
of money. Thus, the plaintiff has no prima facie case in his favour to allow
the application under Order 39 Rules 1 & 2 CPC. With these observations,
the application stands disposed of.
In the application under Order 38 Rule 5 CPC, the plaintiff has
not mentioned that the defendant is going to dispose of the whole or any
part of his property with intent to obstruct or delay the execution of any
decree that may be passed against him. During oral submissions, it has
been submitted that the defendant is going to sell the shop in order to defeat
the decree that may be passed against the defendant. However, the plaintiff
-- 2 of 3 --
:3:
should show prima facie case that the defendant is about to remove or
dispose of the whole or any of the property because attachment order
before judgment is a very harsh remedy as it substantially interferes with
the defendant’s property rights before final adjudication of the dispute.
Further, it can not be used to convert an unsecured debt into a secured debt.
Since, the plaintiff has not shown any prima facie case that the defendant is
about to sell the property, therefore, no relief under Order 38 Rule 5 CPC
can be given to the plaintiff. With these observations, the application stands
disposed of.
Put up for ex-parte P.E. on 23.01.2024.
Copy of this order be given dasti.
(Rajesh Malik)
ADJ-06, Central, THC Courts,
Delhi/21.09.2023
v
-- 3 of 3 --