TMI Blog1965 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... The letter of Sonaram is exhibit 7 (b). On August 11, 1945. Babulal Ram, defendant No. 4, wrote a letter (exhibit 12) addressed to the manager of the plaintiff-bank containing the schedule of documents said to have been deposited with the plaintiff-bank at Calcutta, namely, the title deeds of 17th September, 1927, and 13th December, 1937. The suit was contested by the defendants on the ground that the title deeds were not deposited at Calcutta with a view to create an equitable mortgage, and that, in any case, the document--exhibit 7 (a) constituted a bargain between the parties and required registration under Section 17 of the Registration Act. It was contended on behalf of the defendants that in the absence of the registration the plaintiff was not entitled to a mortgage decree. 2. The trial court considered that exhibits 7(a) and 7(b) were not merely a record of past transactions but created an equitable mortgage and, therefore, required registration under Section 17 of the Registration Act. The trial court, therefore, granted a money decree in favour of the plaintiff for the amount claimed in the plaint along with interest at 6 per cent per annum from the date of the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce more. N. B.--Though ₹ 40,000 will not serve our purpose, we request Mr. Basak to increase it further. At this for the time being he asked us to manage with it and later on he will raise it further. Yours faithfully, (Sd.) Lekharam Sonaram Co. (Sd.) Sonaram, Partner. 5. On August 11, 1945, another letter--exhibit 12--was written by Babulal Ram--defendant No. 4--to the manager of the plaintiff-bank to the following effect: This is to place on record that I have this day deposited with you at your head office at Clive Street, Calcutta, the undernoted documents of title relating to my properties, viz., Giridih Malho properties as described in the title deeds with intent to create an equitable mortgage upon all my rights, title and interest in the said properties to secure due repayment on demand of all moneys now owing or which shall at any time hereafter be owing from me or from M/s. Lekharam Sonaram Co. either singly or jointly or otherwise to Bengal Central Bank Limited, whether on balance of account or by discount or otherwise in respect in any manner whatsoever and including interest with monthly rests, commissions and other bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try, L.R 11 Ben.405 Couch C.J. stated as follows : The rule with regard to writings is that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. If this memorandum was of such a nature that it could be treated as the contract for the mortgage and what the parties considered to be the only repository and appropriate evidence of their agreement, it would be the instrument by which the equitable mortgage was created, and would come within Section 17 of the Registration Act. 8. In a later case, in Pranjivandas Mehta v. Chan Ma Phee, L.R(1916) IndAp 122 the Judicial Committee observed as follows: The law upon this subject is beyond any doubt: (i) Where titles are handed over with nothing said except that they are to be security, the law supposes that the scope of the security is the scope of the title. (2) Where, however, titles are handed over accompanied by a bargain, that bargain must rule. (3) Lastly, when the bargain is a written bargain, it, and it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were taken relating to the appellant's dealings with the respondents on a certain date and the appellant gave certain title deeds to the respondents for being held as security for the amounts then found due and which may become due, and on the same day the appellant gave a memorandum to the respondents in the form of a letter addressed to the respondents which stated as follows : We write to put on record that to secure the repayment of the money already due to you from us on account of the business transactions between yourselves and ourselves and the money that may hereafter become due on account of such transactions we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7, Sambhu Mullick Lane, relating to our properties at Samastipur with intent to create an equitable mortgage on the said properties to secure all moneys including interest that may be found due and payable by us to you on account of the said transactions ... 10. It was held by this court that the parties did not intend to create a charge by the execution of the document, but merely to record a transaction which had already been concluded and und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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