Decided on July 05,2006



K.Gnanaprakasam, - (1.) THE appellant Bank filed the Original Application against 11 defendants and the same was decreed against the defendant Nos. 1 to 7 and 11 and the claim against the defendant Nos. 8. 9 and 10 was dismissed. As against the same, the Bank has preferred this appeal.
(2.) The case of the appellant Bank is that the defendant No. 1 is partnership firm and defendant Nos. 2 to 6 are its partners. At the request of 1st defendant, the appellant Bank sanctioned term loan for a limit of Rs. 45 lacs against the security of hypothecation of factory land and building, and machinery and guarantee of defendant Nos. 2 to 11 and mortgage of immovable properties of defendant Nos. 2, 3, 4, 5, 7, 8, 9 and 10. The defendant Nos. 2 to 5 and 7 to 10 created the mortgage against their immovable properties described in item Nos. 1 to 6 by depositing their title deeds with the applicant-Bank 19th March, 1994. As the defendant No. 1 firm committed default in payment of the amount, the appellant Bank after the issuance of notice, filed the Original Application. The defendant Nos. 4 and 7 remained ex parte. The defendant Nos. 1 and 2 filed a common written statement and the same was adopted, by the defendant Nos. 5, 11 and 6. The defendant No. 3 filed a separate written statement and the defendant Nos. 8, 9 and 10 filed a common written statement. The defendant Nos. 8 to 10 in the written statement have stated that they were not aware of any transaction said to have been taken place between the appellant-Bank and the defendant Nos. 1 to 6 and they were also not aware of the loan facility given by the appellant to the defendant No. 1 Company. These defendants never approached the appellant Bank nor signed any documents agreeing to create equitable mortgage of the property mentioned in item No. 6 of the schedule nor they have deposited the title deeds with the appellant-Bank at any point of time. The so-called memorandum of deposit of title deeds dated 29th March, 1994, said to have been confirmed by the defendant Nos. 2 to 7, were created one. The defendant No. 2 is a resident of B.K. Guda. The defendant resides at East Maredpally. Defendant Nos. 4, 7, 8, 9 and 10 are all the residents of Seethaphalmandi, and defendant Nos. 5 and 6 are the residents of Sadashivpet. The alleged memorandum of deposit of title deeds were all posted at Vengalrao Nagar, Hyderabad on 23rd March, 1994 and the said place is 20 kilometres away from Seethaphalmandi and 75 km. away from Sadashivpet and hence there was no possibility of posting the memorandum of deposit of title deeds at one place. The defendant No. 2, who is the resident of Sanjeev Nagar Colony, which is nearer to Vengalrao Nagar, played fraud upon the defendant Nos. 2, 8, 9 and 10, by confirming the equitable mortgage by posting the alleged letters from Vengalrao Nagar P.O. defendant Nos. 8, 9 and 10 never visited the appellant Bank nor signed any document, much less the memorandum of deposit of title deeds on 2th March, 1994. It is also further stated that the defendant No. 8 has been suffering from deformities formed due to rheumatoidal arthritis from 1986 and she cannot hold any article with her fingers and she cannot hold a pen and she cannot at all sign and, therefore, her alleged signature is not her signature in the documents and her alleged signatures in the sanction letter, memorandum of deposit of title deeds, guarantee agreement are not similar to each other and they were not signed by defendant Nos. 8, 9 and 10. The property set out in item No. 6 is the property of their father G.V. Ramakrishnaiah, and the same was not partitioned among the heirs of late Ramakrishnaiah and, as such, the equitable mortgage said to have been executed by them is not correct. The defendant Nos. 8, 9 and 10 were implicated with the collusion of some of the partners of the defendant No. 1 firm. Hence the defendant Nos. 8, 9 and 10 are not at all liable to pay any amount.
(3.) THE learned Presiding Officer after taking into consideration both oral and documentary evidence had accepted the case of the defendant Nos. 8, 9 and 10 and dismissed the claim against them. Hence, the appeal.;

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