MEHTA - (1.)The appellant-plaintiff filed a suit for specific performance of the agreement to mortgage and in the alternative for damages. The suit having been dismissed, the plaintiff-State Bank of India has preferred this appeal. The appellant-State Bank of India had advanced a loan to one Vallabhdas L. Thakkar who was the proprietor of Nitin Pharmaceuticals factory at G.I.D.C. Vapi. The respondent-defendant is the wife of the. said Vallabhdas L. Thakkar. The loan facilities aggregated Rs. 5,50,000.00 This was in August, 1972.
(2.)On 6/06/1972, the respondent-defendant wife of the debtor Vallabhdas L. Thakkar executed the suit writing Ex. 20 which is titled "agreement to mortgage" and it recites that in consideration of the advances already made to M/s Nitin Pharmaceuticals by the State Bank of India and/ or to be made from time to time, the respondent-defendant wife of Vallabhdas L. Thakkar undertook that so long as M/s. Nitin Pharmaceuticals is indebted to the Bank, to execute by way of a collateral security a legal mortgage with or without possession at the option of the bank in favour of the bank of the immoveable property, namely, flat No. A/17, 9th floor, Ballard View, Tardev, Bombay, which belonged to her absolutely with no encumbrances or charges. She agreed to do so within 14 days of the issuance of written requisition by the bank calling upon her to execute such mortgage to secure all monies due or that may become due from M/s. Nitin Pharmaceuticals to the bank. By notice dated 17-11-1977, the appellant-plaintiff called upon the respondent-defendant to execute the mortgage as per the agreement Ex. 20. This notice is at Ex. 21 issued to her which is proved by Ex. 22. Ex. 25 is her reply refusing to execute such mortgage. The reply is dated 23-11-1977. Thereafter, Special Civil Suit No. 174 of 1978 is filed on 29-4-1978. The plaintiff examined an officer of the bank Ulhas D. Pundlik at Ex. 19 and was cross-examined by the defendant. The defendant has not led any evidence and has not examined herself.
(3.)The learned trial Judge dismissed the suit holding that the writing Ex. 20 is admittedly not disputed but it is without consideration and the interest of the defendant in the flat in a co-operative housing society is incapable of being transferred or mortgaged. The learned trial Judge has also held that the plaintiff has divided causes of action and the respondent's husband-debtor is not made a party to the suit and the suit is not in proper form and is bad for non-joinder of the principal debtor. The learned trial Judge also observed that the plaintiff has failed to prove that the husband had diverted the funds borrowed from the plaintiff towards the purchase of the flat benami in the name of his wife, the present defendant.