1. ' The defendants had opened an account with the Australasia Bank Ltd. and overdraft facility was granted to them.. The account was opened in the name of Sainji Restaurant and Hotel which is a partnership concern of the defendants Nos.1 and 2. In 1974 the Bank was merged with the Allied Bank Ltd., and its assets and liabilities were taken over by the plaintiff Bank.
2. ' To secure the repayment of the loan advanced to the defendants, they executed a letter of undertaking dated 22-11-1973 agreeing to discharge the liabilities of their firm. On 19-2-1974 they also executed General Form of Security for all advances and loan and letter of hypothication of goods. From 22-11-1973 upto 21-9-1978 the defendants regularly operated their account. From the statement of account it is clear that the defendants have been depositing and withdrawing monies from time to time. On 21-9-1978 the defendants executed a Promissory Note in favour of the plaintiff in the sum of Rs.5,03,338.45 with interest at 4% above the bank rate subject to a minimum of 14% with quarterly rests. A letter of waiver was also executed by the defendants the same day.
3. On 21-9-1978 the defendants suggested to pay the dues to the plaintiff in instalments. In pursuance thereof on 30-9-1978 the defendants deposited two cheques of Rs.5,000 each but one cheque was dishonoured which has been produced by the P.W.1 as Ex.3/2. Thereafter when notice was served, the defendants through their letter dated 25th March, 1979 enclosed a cheque for Rs.5,000 and undertook to pay the loan in instalments_ It seems that as no further payment was made the Bank served a notice dated 21-5-1979 under section 4 of the Banking Companies (Recovery of Loan)
4. Ordinance, 1979. After about six months thereafter the defendants by their letter (Exh.3/21) enclosed a cheque for Rs.7,000 and promised to pay the dues in instalments according to the schedule mentioned therein. According to the plaintiff, the defendants created an equitable mortgage to secure the repayment of the amount due or other charges which the plaintiff was entitled to recover from the defendant. In this regard a 'memorandum of deposit of title deed' was executed by the defendant on 23-12-1979 and certain documents said to be title documents of two houses bearing C.S.No.2110/A-2-4 and C.S.No.2110/A-2-5 were deposited earlier.
5. ' According to the plaintiff after the creation of equitable mortgage the defendants by their letter dated 28-6-1981 asked the plaintiff to purchase their air-condition plant of 60 tons which was lying With the Central Excise and Land Customs, Hyderabad. Thereafter on 31-12-1981 the defendants confirmed the correctness of the securities as well as the balance of Rs.8,19,701.45 on that date.
6. After confirming the balance there seems to be complete silence on the part of the defendants, and consequently the plaintiff served nine notices last being dated 3-6-1982, calling upon the defendants to pay the amount due, failing which action was to be taken. The plaintiff then filed this suit seeking the following reliefs:-
(a) That a Decree under Order XXXIV, rule 4, C.P.C. in Form V-A in Appendix 'D' to the first Schedule thereto for the sale of the mortgaged properties described in para. 17 hereinabove of defendants be granted in favour of the plaintiff bank.
(b) That in case the mortgaged properties cannot sold, or if sold, in case of deficiency, the decretal amount as the case may be, be paid by the defendants jointly and severally to the plaintiff bank.
(c) That a further interest at the rate of 14% per annum. from 1-9-1983 till the recovery of full amount from the defendants be granted to the plaintiff bank.
(d) That the full costs of the suit be bone by the defendants and paid to the plaintiff bank.
(e) That any other relief which this Hon,able. Court deems fit and proper may be granted to the plaintiff bank.
7. ' As the defendants did not appear, the matter was placed for final disposal and P.W.1 has been examined who has produced the documents.
8. ' The question for consideration is whether the defendants are liable to pay Rs.10,33,450 and whether decree under Order XXXIV, rule 4 can be passed against the defendants.
9. ' So far the amount of claim is concerned, from the statement of account it is clear that the defendants have been operating their account regularly upto February, 1980 and amounts were deposited and withdrawn from time to time. Thereafter there is no transaction and only interest has been debited to the defendant's account. In any event the defendants have confirmed the debit balance of Rs.8,19,701.45 as on 31-12-1981 and thereafter adding the interest the debit balance has risen to Rs.10,33,450. From the oral as well as the documentary evidence the plaintiff has proved that this amount is due and payable by the defendants to the plaintiff.
10. ' Now the next question is whether there was a valid mortgage and can a mortgage decree be passed against the defendants. The plaintiff has produced the following documents to establish that an equitable mortgage was created by the defendants in its favour:-
(i) Memorandum of deposit of title deed dated 3-12-1979.
(ii) Affidavit of Abdul Ghani Talpur stating that he holds special power of attorney to mortgage the house, C.S.No.2110/A-2/4 and House No.C.S.No.2110/A-2/5.
(iii) Special power of attorney on behalf of Nawab Muhammad Hussain Talpur, Nawab Muhammad Yousuf Talpur, Nawab Zubair Ahmed Talpur and Nawab Muzaffar Hussain Talpur all sons of Nawab Pir Bux Khan Talpur, Mst.Ghano and Mst. Bano both widows of late Nawab Pir Bux Khan Talpur and Mst.Amna, Mst. Musarrat Naz, Mst. Razia Sultana, Mst. Husan Afroz and Mst. Gul Nasreen all daughters of Nawab Pir Bux Khan Talpur authorising him 'to enter into an agreement with the Bank regarding equitable mortgage of these properties'.
(iv) Certified copy of Extract from the Property Register Card in respect of property No.211012-A14.
(v) Certified copy of Extract from the Property Register Card in respect of Survey No.2110/2-A/5.
(vi) A certificate issued by the Sub-Registrar stating that no mortgage or gift is recorded in respect of the aforestated properties.
(vii) A certificate of Al-Hamra Architects certifying the valuation of the properties at Rs.12,00,000.
11. ' On the basis of deposit of these documents, Mr.Syed Masood All the learned counsel for the plaintiff has contended that an equitable mortgage has been created. I asked the learned counsel whether these documents are in any manner documents of title. The learned counsel referred to PLD 1961 Kar. 511 in which it was held that in respect of entries made in the records of rights there is a presumption of correctness. There can be no cavil with this observation but it may be noted that the presumption is only rebuttable. In any event in this judgment it has not been held that the certified copy of the Extract from Property Register is a title document, and equitable mortgage can be created under section 58 of the Transfer of Property Act by depositing such documents. Similar question came up for consideration in M/s. Eagle Star Insurance Co. Ltd. v. Usman & Sons Ltd. and others PLD 1969 Kar. 123, where it was held that extract from Property Register is not a document of title.
12. ' After a very instructive discussion the learned Judge observed as follows:- "The extract from the records-of-rights cannot at all be treated as title-deed, because on conveyance of the land no property in the extract, which can be obtained by any person from the survey office on payment of requisite fee, can be said to pass to the purchaser."
13. ' In this judgment reference was made to Punjab and' Sind Bank Ltd. Lyllpur v. (Firm) Ganesh Das Nathu Ram and others AIR 1935 Lah. 721, AIR 1935 Lah. 957, Jawala Das Golind Ram v. Thakar Das AIR 1936 Lah. 251 and Jiwan Das v. Peoples Bank of Northern India AIR 1937 Lah.
926. 'In all these cases a consistent view has been taken that extracts from Jamabandi cannot be treated as documents of title. In this regard reference can be made to Abdul Hameed v. Abbas Bhoy PLD 1962 SC 1 where it was held that income-tax clearance certificate and the Custodian Certificate cannot be treated as documents of title.
14. 'In the present case I find that extract from the property registe is the only document which has been claimed to be a title document. I is well-settled that extract from Property Register or Jamabandi and documents of similar nature which are Government records for fiscal or revenue purposes are not documents of title. Such documents are in the nature of presumptive evidence which is rebuttable and not conclusive.
15. ' The other documents namely Valuation Certificate and waiver Certificate can hardly be called documents of title. While creating an equitable mortgage no document of title was deposited by the defendants at any time. Theiefore Memorandum of deposit of title deed cannot create any right in favour of the plaintiff. No equitable mortgage was legally created in favour of the plaintiff, therefore no decree under Order XXXIV, rule 4, C.P.C. can be passed against the defendants and the properties which are alleged to have been mortgaged to the Bank.
16. In the result, the suit is decreed against the defendants No.1 and 2 for Rs.10,33,450 with interest 14% P.A. from the date of the suit till realisation and cost.