Panuganti Parthasarathi and Others (1), the circumstance that the transaction as phrased in the document is ostensibly a sale with a right of repurchase in the vendor, the appearance being laboriously maintained by the words of conveyance needlessly reiterating the description of an absolute interest or the right of repurchase bearing the appearance of a right in relation to the exercise of which time was of the essence is not decisive. The form advocates in Supreme Court of India which the deed is clothed is not decisive.
Later on, at the time of division of the said lands, firms and assets, all the documents shall be collected together and the parties shall take the documents relating to their respective shares. A and B have been prepared and both parties have signed the lists. Prior to the amendment there was a conflict of decisions on the question whether the condition contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principal deed.
The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances.
As pointed out by the Judicial Committee of the Privy Council in Narasingerji Gyanagerji v. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transaction. It starts with an apparent error of record when it says that in the judgment of the Excise Commissioner it finds ‘a clear admission that Shri Garela Kalita, father of Shri Dharmeswar Kalita, is a suspected smuggler.
The Government took such a decision in the light of the decision of this Court in 2G case. 1264 powers as such and purported to decide the appeal either on errors of record, speculations or on irrelevant considerations, irrespective of all that happened in the earlier stages of the matter. Though the High advocates Supreme Court of India has mentioned ‘other connected evidence’, what is relied upon is the recovery of scooter and the disclosure/confessional statement made by Jaibir in some other case.
The definition of a mortgage by conditional sale 123 postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. We harbour serious doubts about basing criminal punishment on such an unapproach, not permissible in law. 718 dated November 30, 2001. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended.
The Union of India as a matter of policy took a decision not to extend the licenses of these LICENSEES, as the extension of a license would necessarily imply the extension of the privilege to use the spectrum which had been bundled with the original grant. The learned Solicitor General submitted that even in terms of the license conditions, the extension can only be on mutually agreed terms and conditions or on terms mutually agreed. ‘ In fact, there was no such admission.
The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property. So long as the decision to put the spectrum on auction is uniformly applicable to all LICENSEES across the Board, such a policy decision of the Government of India prevails over the right, if any of the LICENSEES to have their claim for extension of the license be considered either on the same terms on which the licenses were granted or on terms which the LICENSEES are suggesting.
The prospect of the exchequer getting a huge amount by putting the spectrum for auction is a relevant consideration justifying the decision to put the spectrum for auction. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed lawyers in Supreme Court of India the light of surrounding circumstances.
What follows from the above reasoning given by the High Court is that the confessional statements were supported with other evidence. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. No other evidence is pointed out by the High Supreme Court of India lawyers. This conclusion gets strengthened as we proceed to discuss the nuances of legal principles and its application to the factual canvas herein.
Learned Solicitor General also submitted that even the limited right of consideration created under the contract is always subject to change of policy by the LICENSOR (Union of India) and its statutory and constitutional obligations. Besides, in that case, by severing the illegal conditions which had been imposed the order of the Collector still remained one enforceable and not a truncated order which would be incomplete by the excision of those two conditions.
This approach of the High Court relying upon the confessional statements, otherwise inadmissible, with the aid of ‘other connected evidence’ is contrary to law. It is not open for the petitioners to argue that the LICENSOR is bound to grant extension on terms which the licensee dictates. On our specific query to the learned counsel for the State during the arguments, he also conceded that the only ‘connected evidence available on record’ was the recovery of scooter and the confessional statement (Mark A) made by Jaibir in FIR No.