SYNDICATE BANK Vs. MRS SAFIA ALIM SAIT

JUDGEMENT

(1.) THE Bank filed Original Application (OA) against the respondents R1 to R3 for recovery of the amount due to the Bank. R1 also created equitable mortgage by deposit of title deeds in favour of the Bank. R1 and R2 are the borrowers and R3 is the guarantor. R1 is no more and R2 and R3 are her legal representatives. THE PO, DRT, Bangalore, passed a decree directing the defendants to pay the decree amount jointly and severally to the applicant Bank but no mortgage decree was passed even though equitable mortgage has been created in favour of the appellant Bank. Aggrieved against that order the appellant Bank has preferred this appeal.

(2.) Even though the respondents were served with notice the respondents never appeared and there is no representation on the part of the respondents. So the arguments of appellant Bank's Counsel alone is heard and the order is being passed.

(3.) THE PO, DRT, has observed that the equitable mortgage created by R1 has not been approved and it is not supported by the title deeds and this mortgage is also not a registered mortgage. THEse Memorandum of Letters dated 15.4.1988 and 11.7.1990 creating equitable mortgage and reconfirming the previous mortgage already created, go to prove that R1 has deposited the title deeds with the Bank only with the intention to create equitable mortgage and R1 has created equitable mortgage. This is a mortgage by deposit of title deeds. THE Memorandum of Letters given by R1 depositing the title deeds are sufficient to constitute the mortgage and that docs not require any registration. THEse documents filed and the Memorandum of Letters given by R1 supported by the title deeds and the Partition Deeds mentioned supra clearly prove that R1 has created equitable mortgage with the Bank and the appellant Bank is entitled for mortgage decree. So it is crystal clear that since there is equitable mortgage in favour of the Bank, the Bank is entitled for the mortgage decree and the order passed by the PO, DRT only for personal decree is not sustainable and the Bank is also entitled for the mortgage decree. Hence mortgage decree is also passed in favour of the Bank and the appellant Bank is entitled to proceed against the mortgaged property. Order of the PO, DRT, Bangalore, is modified.