IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 4400 OF 2018 (GM-CPC) BETWEEN:
MR A N SUBBARAJU, AGED ABOUT 63 YEARS, S/O LATE A S NAGARAJ GUPTA, RESIDING AT NO.6, GOKULAM, M A H ROAD, TASKER TOWN, SHIVAJINAGAR, BANGALORE-560040.
(BY SRI. RAGHAVENDRA C, ADVOCATE) AND:
1. MR DINESH M BHATIA AGED ABOUT 43 YEARS, S/O MADANLAL BHATIA HAVING OFFICE AT NO.104, 1ST FLOOR, JALA CHAMBERS NO.17, KUMARA KRUPA ROAD, BANGALORE-560001 2. MESSRS ABU DHABI COMMERCIAL BANK … PETITIONER A BODY INCORPORATED IN THE UNITED ARAB EMIRATES, HAVING ITS REGISTERED OFFICE AT NO.75B, REHMAT MANZIL, VEER NARIMAN ROAD, MUMBAI-400200.
AND BRANCH OFFICE INTER ALIA AT G-3, EMBASSY SQUARE #148, INFANTRY ROAD, BANGALORE-560051. AND NO.28, 28/1, 28/2 CITI CENTRE, GROUND FLOOR, CHURCH STREET, BANGALORE-560 001.
REP BY ITS CHIEF EXECUTIVE INDIA MR IBRAHIM ABDUL WAHD AND ASISTANT VICE PRESIDENT AND BRANCH MANAGER MR V JAGANNATHAN & CURRENT BRANCH HEAD MR JAYAGOPAL GAJENDRA.
… RESPONDENTS (BY SRI. ARJUN REGO, ADVOCATE FOR L P E REGO FOR R1;
V.C.O DATED 31.05.2018 PETITION AGAINST R2 IS REJECTED ) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.11.2017 PASSED IN O.S.NO.3361/2012 PENDING ON THE FILE OF XLIV ADDL. CITY CIVIL & SESSIONS JUDGE (CCH;28) BANGALORE AT ANNEXURE-A;
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant in a suit for Foreclosure of Mortgage suit in O.S.No.3361/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 22.11.2017, a copy whereof is at Annexure-A, whereby the XLIV Addl. City Civil Judge, Bengaluru having rejected his application has refused to impound the subject document, as provided u/s. 33 & 34 of the Karnataka Stamp Act, 1957.
2. After service of notice, the plaintiff having entered appearance through his counsel, resists the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch as the text & context of the Memorandum of Agreement dated 23.07.2010, a copy whereof is at Annexure-D does not comprise an accomplished mortgage transaction, it being only an agreement to mortgage as contradistinguished from mortgage as defined u/s.58 of the Transfer of Property Act, 1882.
4. The contention that there are some paragraphs which give an impression that it is an accomplished transaction of mortgage is bit difficult to countenance when the text of the instrument is heavily loaded against such construction; it is a settled position of law that while deciding the dutiability of an instrument, if there is any doubt the same should enure to the benefit of the citizen who is a party to the instrument which comprises the transaction.
In the above circumstances, the writ petition being devoid of merits, is dismissed.
Sd/- JUDGE Snb/