The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.85 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment dated 20th January, 2023 passed by the learned Additional District Judge, Bhawanipatna in R.F.A. No.53/35/3 of 2002-2022 confirming the judgment & decree dated 3rd August, 2002 and 14th August, 2002 respectively passed by the learned Civil Judge (Senior Division), Bhawanipatna in Title Mortgage Suit No.15 of 1999. ---- Kumud Chandra Sahani -versus- Life Insurance Corporation of India, represented through its Senior Divisional Manager, Berhampur, Ganjam …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.S.P. Mohanty, A.K. Nanda & G. Sahu (Advocates)
Legal Reasoning
For Respondent - Mr.Prakash Ranjan Barik (Advocate) CORAM: MR. JUSTICE D.DASH Date of Hearing :02.11.2023 : Date of Judgment:13.11.2023 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has Page 1 of 6 RSA No.85 of 2023 {{ 2 }} assailed the judgment & preliminary decree dated 20th January, 2023 passed by the learned Additional District Judge, Bhawanipatna in R.F.A. No.53/35/3 of 2002-2022. The Respondent (Life Insurance Corporation of India), as the Plaintiff, had filed Title Mortgage Suit No.15 of 1999 in the Court of the learned Civil Judge (Senior Division), Bhawanipatna for realization of a sum of Rs.1,57,838.00 (Rupees One Lakh Fifty- Seven Thousand Eight Hundred Thirty-Eight Only) with interest at the rate of 16% per annum from the Appellant (Defendant) within a stipulated period and on failure, to recover the said sum by putting the immovable property kept under mortgage for sale. The Suit, having been preliminarily decreed, the Appellant, the Defendant, being aggrieved, had carried the Appeal under section 96 of the Code, which has been dismissed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiff’s Case:- The Defendant, being a policy holder, availed a house building loan of Rs.1,50,000.00 (Rupees One Lakh Fifty Thousand Only) on 13.12.1990 for construction of a house over his plot of land by offering the said land as collateral security putting it under mortgage with the Plaintiff-Corporation. The Plaintiff- RSA No.85 of 2023 Page 2 of 6 {{ 3 }} Corporation, having sanctioned the loan to the tune of Rs.1,00,000.00 (Rupees One Lakh Only) at the agreed rate of interest of 14% per annum, the Defendant availed the said loan facility with all other terms and conditions put forward by the Plaintiff-Corporation as agreed upon for the purpose. The Defendant deposited the title deed with respect to his land in creating the mortgage of the same in favour of the Plaintiff- Corporation. It is stated that the Defendant defaulted in making the payment of the installments with stipulated interest in repaying the said loan dues. The Plaintiff-Corporation, therefore, filed the suit for recover of a sum of Rs.1,57,838.00 with interest at the agreed rate. After adjustment of the sum amount, having been due to the Defendant on account of surrender value of the insurance policy as per the condition. 4. The Defendant, in his written statement, admitted to have availed the loan by keeping his immovable property as collateral security and by mortgaging the same, depositing the title deed. It is stated that due to some financial crisis, the Defendant could not make timely payment of the installments. It is further stated that the suit having, however, been filed before the stipulated time allowed by the Plaintiff-Corporation for clearance of the loan dues, the same is premature. RSA No.85 of 2023 Page 3 of 6 {{ 4 }} 5. The Courts below have concurrently found the Defendant to be liable to pay the outstanding loan dues and, therefore, having held that the immovable property of the Defendant to be standing as the collateral security by way of mortgage with the Plaintiff-Corporation, the preliminary decree in the suit has accordingly been passed. 6. The present Appeal has been admitted to answer the following substantial question of law:- “Whether the Courts below are right in repelling the defence of the Defendant that the suit being premature was not maintainable?” 7. Heard Mr.G.Sahu, learned counsel for the Appellant and Mr.P.R.Barik, learned counsel for the Respondent-Corporation. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in the parties. 9. It is seen from Clause-5 of the loan offer letter (Ext.2) that it is permissible for Plaintiff-Corporation to insist for repayment of the entire loan dues on 16.07.2015. Clause-5(c) of the said agreement reads that the Plaintiff can take action for realization of the loan when there is default in payment of the installments. It has been specifically noted that in the event of any breach of RSA No.85 of 2023 Page 4 of 6 {{ 5 }} any of the conditions contained therein, the Plaintiff-Corporation, without prejudice to their right to immediate payment of the principal money or the part thereof, shall be entitled to surrender such policy without giving any notice to the Defendant and to receive the amount of such surrender value and to apply the same in a manner the Plaintiff-Corporation thinks fit either towards the principal or the interest or any other amount due and payable before institution of the suit. It is further stipulated in Clause-6(c) that in case of default of payment of any two monthly installments of interest or in payment of an equated monthly installment, the Plaintiff-Corporation may demand payment of entire loan or the balance thereof remaining due and the same shall be deemed to have become immediately payable as if the due dates had been elapsed. The following has also been stated under Clause-9 of the loan offer letter, which forms part of the agreement:- “Notwithstanding anything herein contained, the entire loan then due or the outstanding balance thereof shall become due and payable at once the breach of non- performance of any of the conditions contained in this Loan Offer Letter.” With the aforesaid clauses in the agreement, since it has been stated by the D.W.1 that having received the final installment on 19.08.1991, he did not repay any amount to the Plaintiff-Corporation till 1997, the substantial question of law RSA No.85 of 2023 Page 5 of 6 {{ 6 }} stands answered in favour of the Plaintiff-Corporation that the suit was not premature and maintainable for the reliefs claimed. 10.
Decision
In the result, the Appeal stands dismissed. There shall be no order as to cost. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 15-Nov-2023 11:20:14 RSA No.85 of 2023 Page 6 of 6