ALOK SHARMA, J. - (1.) This appeal has been filed against the order dated 01.02.1991, passed by the Additional District and Sessions Judge, Neem Ka Thana, District Sikar in Civil Suit No.26/1987 whereby the court below subsequent to the framing of issues and taking evidence thereon has exercised its power under Order 7 Rule 10 CPC holding issue No.10 pertaining to the question its territorial jurisdiction against the appellant-plaintiff-Bank (hereinafter 'the plaintiff-Bank') on the ground that the court at Sikar had no jurisdiction to hear the suit. Consequent to its findings, the plaintiff-Bank's money suit for recovery of Rs. 59,486.25/- has been returned to it for filing it in the court with territorial jurisdiction over the matter.
(2.) Mr. K. Verma, appearing for the plaintiff-Bank, submitted that the money suit was laid both against the principal borrower and the surety. It was submitted that the surety had created an equitable mortgage in respect of his property situated at Sikar towards guaranteeing the loan amount to the principal borrower by way of deposit of a title deed (Ex-17) and memorandum drawn with regard thereto (Ex-18) pertaining to immovable property situate at Sikar. It was submitted that in terms of section 16(c) of CPC a suit could be filed inter alia in cases of mortgage (and inevitably equitable mortgage) at the place where the mortgaged property was situate. He submitted that the property mortgaged by the surety-defendant-respondent No.3, Abdul Zardar Khan, was situate at Sikar and hence the suit filed before the Sikar Court was maintainable. Counsel further submitted that the learned trial court also misdirected itself in entering into the merits of the matter while invoking its power under Order 7 Rule 10 CPC and holding thereupon that the equitable mortgage created by the respondent No.3 did not confer jurisdiction at the court at Sikar where the mortgaged property was situated inter alia for reason of it being not registered. This, counsel submitted, was contrary to the principle of law that an equitable mortgage is created by mere depositing of title deed and drawing a memorandum in respect thereof. The judgment of the Hon'ble Supreme Court in the case of State of Haryana and Ors. v. Narvir Singh and Anr., (2014) 1 SCC 105 also reaffirming the legal position that a mortgage by deposit of title deeds may be effected in a specified town by the debtor delivering to his creditor documents of title to immovable property with the intent to create a security thereon and no instrument is required to be drawn for the purpose. Yet a party may also choose to have a memorandum prepared only for the purpose of evidencing the factum of deposit of the title deeds. It has been specifically held by the Hon'ble Apex Court that "in such a case registration is not required." Counsel submitted that aside of the aforesaid, the question with regard to the admissibility or otherwise of the documents on record of the trial court i.e. Ex-17 and Ex-18, was a matter of merits of the case and not an issue which could be adjudicated by resort to the power under Order 7 Rule 10 CPC. It was also submitted that a perusal of discussion by the trial court in respect of issue No.10 pertaining to the jurisdiction of the court below indicates that it perversely held that the deposit of title deed related to a property situated at Bhilwara when in fact Ex-17 and Ex-18 ex facie evidence that the deposited title deeds as also the memorandum thereof executed by the surety, defendant-respondent No.3 clearly pertained to the mortgaged property situate at Sikar within the jurisdiction of the Trial Court.
(3.) Mr. A.K. Bhandari, Sr. Advocate with Mr. Jiten Mishra, appearing for the respondents has supported the judgment of the court below. It was submitted that defendant-respondent No.3, Abdul Zardar Khan, in his testimony before the trial court has categorically stated that he had not created any equitable mortgage in respect of his property (Ex-17), nor had signed the memorandum of the deposit of title deeds (Ex-18) thereby guaranteeing the repayment of loan advanced by the plaintiff-Bank to the principal borrower.;