No Mortgage deed of June month as alleged produced - a separate agreement of sale of July month is produced - all 3 courts gave finding that the document is a sale deed but not mortgage deed- no mortgage deed nor agreement of sale were produced in trial court - at the Apex stage produced only an agreement of sale only Apex court held that In any event,the execution of a separate mortgage deed from what is contended to be an agreement for conditional sale militates against the rights of the mortgager to contend that it was a conditional sale and not a sale deed in view of the proviso to Section 58(c) of the Transfer of Property Act, 1882.
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8747 OF 2017
VEENA DEVI Appellant(s)
VERSUS
YOGESH KUMAR Respondent(s)
WITH
CIVIL APPEAL NOS. 8748-8749 OF 2017
O R D E R
The present appeals arise from concurrent finding of
facts by three courts that the document in question was a
sale deed and not a deed of mortgage pertaining to a loan
taken by the appellants from the respondents.
Learned counsel appearing on behalf of the appellants
submits that the appellants had mortgaged the suit property
to the respondents for a loan amount of Rs. 50,000/- each
respectively. A mortgage deed dated 24 June 2004 had been
executed prior to the agreement for sale dated 1 July 2004.
Unfortunately the mortgage deed and the agreement for sale
could not be brought on record before the courts below. The
appellants are ready and willing to repay the loan amount
with reasonable interest.
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Learned counsel for the respondents submitted that the
agreement was one for sale only. No mortgage deed was ever
executed. The appellants cannot be allowed to bring any
documents on record at this stage in the appeal, if it was
not produced before the courts below and no explanation for
the same is forthcoming.
To our mind, the scope of interference with concurrent
findings of fact by three courts is extremely limited under
Section 136 of the Constitution of India unless there is any
perversity causing miscarriage of justice.
We have gone through the agreement for sale dated 1
July 2004 filed in the form of additional documents to
satisfy ourselves with regard to its nature.
The recitals leave no doubt in our mind that it is a
sale deed and does not reflect in any manner that it was a
conditional sale for a loan that may have been taken by the
appellants from the respondents.
The mortgage deed dated 24 June 2004 claimed by the
appellants has never been brought on record.
In any event, the execution of a separate mortgage deed
from what is contended to be an agreement for conditional
sale militates against the rights of the mortgager to contend
that it was a conditional sale and not a sale deed in view of
the proviso to Section 58(c) of the Transfer of Property Act,
1882.
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The appeals are dismissed.
Pending application(s), if any, stand disposed of.
�....................J.
(NAVIN SINHA)
.�����...............J.
(B.R. GAVAI)
NEW DELHI
SEPTEMBER 26, 2019
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ITEM NO.105 COURT NO.12 SECTION XIV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8747/2017
VEENA DEVI Appellant(s)
VERSUS
YOGESH KUMAR Respondent(s)
WITH
C.A. No. 8748-8749/2017 (XIV-A)
Date : 26-09-2019 These appeals were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE NAVIN SINHA
HON'BLE MR. JUSTICE B.R. GAVAI
For Appellant(s)
Mr. Sarvesh Singh, AOR
Ms. Herinder Kaur Brar, AOR
For Respondent(s)
Mr. Varinder Kumar Sharma, AOR
Yadao P.S., Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeals are dismissed in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(MANISH SETHI) (SAROJ KUMARI GAUR)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)
