TMI Blog2013 (12) TMI 1719X X X X Extracts X X X X X X X X Extracts X X X X ..... ff the appeal, and are not repeated here in their entirety. However, for the purposes of the present review, the following factual matrix is important, as elaborated upon in the judgment sought to be reviewed: The brief facts are that MGF filed a suit for recovery of ₹ 3,56,82,220/- under Order XXXIV of the Code of Civil Procedure, 1908. MGF, in its plaint claimed that it had given three Inter Corporate Deposits (hereinafter referred as ICDs ) to Durga Builders for a sum of ₹ 1 Crore, ₹ 1 Crore, and ₹ 50 Lakhs respectively on various dates i.e., (29.06.1996 (at 30% per annum), 07.02.1997 (at 27% per annum) and 13.05.1997 (at 22% per annum)). The plaintiff further alleged that Durga Builders and one M/s. Sonal Developers Pvt. Ltd. created on the dates of grant of ICDs i.e., 29.06.1996, 07.02.1996 and 13.05.1997 equitable mortgages in its favor (MGF) for repayment of the amounts underlying the ICDs. These pertained to a total 32 kanal land in various parts of village Islampur District, Faridabad, Haryana, and Plot No. 12 Ring Road, Lajpat Nagar, New Delhi. MGF claimed that all the ICDs were issued in New Delhi and were repayable within the jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the year ending 31.03.2004, Durga Builders admitted liability of ₹ 1,93,00,000/- to MGF. This balance sheet, MGF argued, was signed on behalf of Durga Builders and submitted to the Income Tax authorities as well, and thus, forms a proper basis for a decree on admission since the outstanding liability has been recognized by Durga Builders itself. Schedule C of the balance Sheet, relating to 'Unsecured Loans', did indeed, as the impugned judgment notes in this case, record a loan amount of ₹ 1,93,00,000/- from M/s. Motor General Finance Ltd. , i.e. MGF. In its reply to the application, however, Durga Builder did not deny the fact of the existence of the balance sheet, but stated that there was never any mortgage liability, i.e. MGF had never advanced any amount as against a mortgage. Rather, it was claimed that the balance sheet was a result of the collusion of Mr. Arun Mehra with MGF, as is clear from the reply to I.A. 12439/2006, which states: 6.... The present case is nothing but a misrepresentation of facts on behalf of the plaintiffs. The balance sheet annexed is the reflection of fraud by one Shri Arun Mehra who has totally acted against the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission is in respect of the quantum of liability and the aspect of mortgage is only qua the aspect of security for such liability. 19. I am, thus, of the considered view that the plaintiff is entitled to a decree to the extent of ₹ 1.93 Crores against defendant No. 1 on the basis of the admissions contained in the balance-sheet as also corroborated by the statement of the Managing Director of Defendant no. 1, Mr. Nanda. 6. On appeal, this judgment and order were reversed, and the parties were directed to return to the learned Single Judge for the trial to proceed on its merits. The judgment considered the effect of the admission not through a selective reading of the documents before the Court, or the pleadings, but rather, through an overall reading of the material to determine whether the admission was clear and unequivocal , as opposed to leaving certain issued undecided or in doubt. On this basis, the judgment held as follows: 20. In this case, Durga Builders' consistent stand in the written statement as well as in the reply to the application under Order 12 Rule 6 CPC was denial of the entire mortgage transaction ; it also claimed that it was the victim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance sheets. Before the merits, however, learned counsel for MGF argues that the judgment was obtained on the strength of fraud played upon the Court by Durga Builders, in that the affidavit accompanying the Regular First Appeal, and even the vakalatnama in favour of Mr. Sharad. K. Agrawal, Advocate, is not signed by anyone. It was argued that the appeal was filed on the basis of a printout taken after the scanning the signatures of Mr. R.K. Nanda, which is visible from the naked eye, and thus, clearly an act of forgery. Accordingly, it was argued that in the absence of signatures on the appeal, affidavit and vakalatnama, technically, there is no appeal and hence the same was liable to be dismissed on this ground. For this, reliance was placed upon the decision of the Supreme Court in Dalip Singh v. State of Uttar Pradesh and Others, 2010 2 SCC 114, as also the decisions in S.P. Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath (dead) by LRs. and Others, JT 1993 (6) SC 331 and Prestige Lights Ltd. v. State Bank of India, 2007 (8) SCC 449. 8. On merits, it was argued that the judgment is erroneous on the face of the record, as the reasoning in paragraph 20 that if .... Durga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel contradicts the argument that some fraud was played by Mr. Arun Mehra as factually incorrect, and urges that, on the contrary, there are three cases of cheating and fraud pending against Mr. R.S. Nanda and his lawyer (being FIR No. 24/2009, 246/2009 and 140/2009) registered at the Tilak Marg Police Station, New Delhi on the instructions of this Court and that the same are pending trial before the Court of ACMM, Patiala House, New Delhi. Given that these cases of forgery and cheating are pending against Mr. Nanda, learned counsel argues that the allegations that fraud was played upon Durga Builders by MGF and Mr. Arun Mehra are unbelievable. Rather, learned counsel urges, these are only attempts to delay repayment of an established debt. 10. The Court has considered the submissions advanced to review its judgment and order of 10.04.2012. On the question of forgery of the vakalatnama and the affidavit accompanying the appeal, which in the Petitioner's argument renders the appeal itself non est, the Court notices the following facts which are clear from the record. First, a duly stamped vakalatnama is on the record, from Durga Builders Pvt. Ltd. through its Managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit. In fact, it is important to note that the learned Single Judge, by an order dated 29.09.2005, framed various issues in the course of the trial, and several of those issues, extracted below, may lead to a dismissal of the suit even at this stage, i.e. the fact of an unsecured loan on Durga Builder's balance sheet does not decide or obviate the need to decide these issues: 4. Whether an equitable mortgage by deposit of title deeds was created with respect to property No. Plot No. 12, Ring Road, Lajpat Nagar-IV, New Delhi? If so, to what effect. XXX 7. Whether the plaintiff has fraudulently procured the title deeds with respect to property No. 12, Ring Road, Lajpat Nagar-IV, New Delhi in collusion with Shri Arun Mehra, the then Director of defendant No. 1 company at the relevant time? 8. Whether the defendant No. 1 has redeemed the mortgage in relation to immovable properties bearing Nos.: (i) 16 Kanal land comprising in Khewat No. 1 Khatauni No. 9, M. No. 16 and Killa No. 16/3 (6-19), 24/3 (0-5), 25 (8-0), M. No. 17 Killa No. 11 (8-0), 20/2 (5-7), 21/1 (5-7), M. No. 19 Killa No. 1 (7-13), M. No. 20 Killa No. 5 (8-0) situated in village Islampur, District Far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. 12. The documents having been tendered in evidence without any demur by the defendants, the same coming from proper custody and forming part of official record of the appellant-Corporation and being part of the chain of correspondence can be said to have been proved by P.W. 1 more so when his deposition to the effect that the two letters were received from the Federation was not disputed by the defendant-Federation either by directing any cross-examination on that part of the statement or by making any suggestion to the contrary indicating the defendant's case as regards the said two letters. In our opinion, the documents were proved and their contents can be read in evidence. Needless to say, there is no rebuttal of the letters on the part of the defendants by way of evidence adduced in the case. 13. Once it is held that the two letters are proved then the next question which arises is as to their effect on limitation. 14. According to Section 18 of the Limitation Act, an acknowledgement of liability made in writing in respect of any right claimed by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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