Interim Order 4

Order Details: COPY OF ORDER
Pdf Text: CS No.214523
VIJAY SHARMA AND ANR Vs. LATE SANJAY THROUGH ITS LRS
23.03.2024
Present: Sh. Naman Issrani, Ld. Counsel for plaintiff (through VC).
Ms. Vashu Gupta, ld. counsel for both the defendants (through
VC).
Perusal of the record shows that the defendants were
effectively served on 14.12.2023 but no written statement has been filed till
date.
On the last date, although the stipulated period for filing the
written statement has expired but in the interest of justice, no adverse orders
were passed against the defendants. However, today again, an adjournment is
sought on behalf of the defendants to file the written statement as the same is
prepared but owing to ill health of ld. counsel for defendant she could not file
the same.
Opposed to on the ground that the period of 90 days has also
elapsed and no written statement has been filed till date. Further, Ld. Counsel
for plaintiff also presses for orders on his application under Order 39 Rule 1
and 2 of CPC. Heard.
At this stage, the Court is of the view that since adjournment is
being sought to file the written statement on the ground of personal difficulty of
the counsel, some time may be granted to the defendants to file the written
statement. Accordingly, the same be filed within 10 days from today along with
appropriate application seeking condonation of delay.
The Court further deems to fit to hear arguments on application
under Order 39 Rule 1 and 2 of CPC today itself.
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Be taken up again at 11:30 AM.
Payal Singal
CJ08 (Central)
23.03.2024/Delhi
At 11:30 AM
Present: Sh. Naman Issrani, Ld. Counsel for plaintiff (through VC).
Ms. Vashu Gupta, ld. counsel for both the defendants (through
VC).
It is submitted on behalf of the plaintiff that the original
defendant had taken a loan of Rs.10 Lakh from the plaintiffs for which he had
mortgaged his property i.e. 3rd Floor (area admeasuring 12x12 sq. feet with
terrace/roof rights) and part of Ground Floor (i.e. 1/3rd share of area ad
measuring 7x9 sq. feet) of property No.678, Military Road, Punjabi Basti,
Anand Parvat, New Delhi – 110 005. It is submitted that the mortgage deed
dated 16.03.2021 is already on record which disallows the defendants, being
LRs of the deceased defendant, from selling, mortgaging or creating third party
interests in the mortgaged property till the clearance of the loan amount. It is
then argued that till date the loan amount has not been cleared and
accordingly, the defendants be restrained from creating any third party interest
in the mortgaged property.
Per contra, it is argued on behalf of the defendants that the
said loan amount has already been paid in full by the defendants to the
plaintiffs in cash and thus, the defendants cannot be restrained from dealing
with their property.
Arguments heard on the application under Order 39 Rule 1 and
2 of CPC. Record perused.
It is pertinent to mention that while deciding an application
under Order 39 Rule 1 and 2 of CPC, the Court has to look into three facts i.e.
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prima facie case in favour of the plaintiff, balance of convenience and
irreparable loss. Now since the defendants have not filed any written statement
on record, the only record available with the Court to decide the present
application is the submissions advanced on behalf of the defendants.
What transpires from the submissions made is that the
defendants are not denying the factum of loan or existence of the mortgage
agreement; the defendants are merely stating that the entire loan amount has
been repaid in cash to the plaintiffs. In the given circumstances, the Court is
satisfied that prima facie case exists in favour of plaintiffs regarding the
existence of the loan and the mortgage agreement. Further, the fact whether
the payments have been made in cash or not is a matter of trial and if the said
payments have not been made, irreparable loss shall be caused to the
plaintiffs who granted a secured loan to the defendants. Thus, balance of
convenience lies in favour of the plaintiffs and till the disposal of the present
suit, the Court deems it fit to restrain the defendants from creating third party
interests in the mortgaged property.
Accordingly, the application in hand is allowed. The
defendants are restrained from selling or creating any third party
interests in the property i.e. entire 3rd Floor (area admeasuring 12x12 sq.
feet with terrace/roof rights) and part of Ground Floor (i.e. 1/3rd share of
area admeasuring 7x9 sq. feet) of property No.678, Military Road,
Punjabi Basti, Anand Parvat, New Delhi – 110 005 as shown in red in the
site plan, till the disposal of the present suit.
Application disposed off accordingly.
Put up for further proceedings, on 30.05.2024.
Payal Singal
CJ08 (Central)
23.03.2024/Delhi
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