Madras High Court
K. Rajendran vs The Special Officer on 1 December, 2021
S.A.No.428 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.428 of 2019
and
C.M.P.Nos.6398 of 2019 &6383 of 2020
K. Rajendran ... Appellant
Vs.
The Special Officer
Rep. by Chennai Metropolitan
Co.Op. Housing society Limited,
No.38, Ritherdon road,
Vepery,
Chennai-07 ... Respondent
PRAYER: Second Appeal is filed under Section 100 of CPC to set aside the
judgment and decree in A.S.No.382 of 2014 dated 19.09.2018 on the file of V
Additional City Civil Judge, Chennai confirming the judgment and decree in
O.S.No.304 of 2011 dated 15.07.2014 on the file of III Assistant City Civil
Judge, Chennai.
For Appellant : M/s.G.Appavu
For Respondent : Mr.M.R.Murugan
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S.A.No.428 of 2019
JUDGMENT
This Second Appeal is filed challenging the judgment and decree in
A.S.No.382 of 2014 on the file of the learned V Additional City Civil Court,
Chennai, confirming the judgment of the learned II Assisstant City Civil Court
in O.S.No.304 of 2011.
2. The appellant as the plaintiff, filed the suit in O.S.No.304 of 2011
seeking the relief of redemption of mortgage dated 24.09.1997 in Document
No.5890 of 1997 on the S.R.O. Sembiam, in respect of the plot No.C-344, in
S.No.383/1, in T.S.No.145, to an extent of 2400 Sq.ft, after determining the
amount payable towards discharge of mortgage dues, consequently directing
the defendant to cancel mortgage deed and return the original title deed
relating to the property, on deposit of the amount in the Court and for costs.
3. The case of the appellant/plaintiff is that this property was allotted by
the Periyar Nagar Government Servants Co-operative House Site Distribution
Society Limited. Sale deed in favour of the plaintiff was executed on
02.07.2004. To satisfy the terms and conditions of lease cum Sale agreement
in constructing house on the plot, plaintiff approached the defendant for
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S.A.No.428 of 2019
housing loan. On verification of documents, defendant had sanctioned loan of
Rs.3,00,000/- on September 1997. Plaintiff executed a registered mortgage
deed in favour of the defendant on 24.09.1997 in Document No.5890 of 1997.
Plaintiff became a member of defendant society by paying share capital of
Rs.21,000/- and loan was granted repayable in 18 years at the rate of
Rs.4575/-p.m. Plaintiff has been repaying the loan periodically to the tune of
Rs.5,89,405/-. When the Plaintiff is admittedly paying loan amount, there was
no necessity for the defendant to refer the matter to Arbitrator. The plaintiff
appeared before the arbitrator and explained the repayments made by him.
However, defendant sent an auction notice fixing the sale of the property
dated 26.08.2010. On verification, plaintiff found that an award was passed in
Arbitration Proceedings by Co-operative Sub-Registrar Arbitration &
Execution, dated 07.03.2003 for a sum of Rs.6,13,237/- with interest at 19 %
per annum. Despite the request made by the plaintiff to furnish copy of the
award, it was not granted. Plaintiff had filed W.P.No.19591 of 2010 and was
granted interim injunction in M.P.No.1 of 2010 and was saved auction
proceedings. The Government of Tamil Nadu had scaled down the interest
and penal interest by various Government orders. The award is illegal, null and
void and unenforceable. Plaintiff is liable to pay only a sum of Rs.1,23,832/-.
Therefore the suit is filed for the aforesaid reliefs.
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S.A.No.428 of 2019
4. The respondent filed written statement claiming that the suit filed for
redemption of mortgage is unsustainable and unreasonable. Plaintiff had not
challenged the order dated 07.03.2003 made in Claim No.138 of 2002-2003.
Civil Court has no jurisdiction to entertain the suit in view of specific bar
under Section 156 of Tamil Nadu Cooperative Societies Act, 1983. After
availing mortgage loan of Rs.3,00,000/- and executing mortgage deed dated
24.09.1997, plaintiff has not really paid the equated monthly instalments. The
delay in paying EMI would attract penal interest of 1.5 % per annum. Plaintiff
is a chronic defaulter. Therefore, this case was referred under Section 90 of
the Act for passing award by competent authority under a resolution dated
13.12.2002. The Arbitrator followed the prescribed procedure and passed an
award dated 07.03.2003 in Claim No.138 of 2002-2003 directing the plaintiff
and his co-applicant to pay Rs.6,13,237/- with interest at the rate of 19 % per
annum. Plaintiff is well aware of the proceedings. Plaintiff sent letter to the
defendant undertaking repayment of due amount through letter dated
19.12.2003. On 26.06.2004 he paid Rs.10,000/- as part payment and prayed
time to make the balance amount and therefore the execution proceedings was
postponed. Thus suit has no merits and barred by law. Instead of challenging
the award passed in ARC.No.138 of 2002-2003, this suit was filed only to
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S.A.No.428 of 2019
delay the proceedings.
5. The Trial Court has framed the following issues on the basis of above
said pleadings:-
1. Whether the plaintiff is entitled for redemption of the mortgage dated
24.09.1997 on directing the defendant to cancel the mortgage deed and return
the original title deeds of the suit property?
2. Whether the remedy to plaintiff is only under the T.N.Co-opertative
Societies Act 1963?
3. Whether the suit is not maintainable without challenging the order
passed in ARC.No.138 of 2003-2004?
4. To what other relief the plaintiff is entitled for?
6. During trial before the Trial Court, plaintiff was examined as PW1
and Exs. A1 to A6 were marked. Defendant was examined as DW1 and Exs.
B1 to B36 were marked. On considering the rival submissions, the learned
Trial Court Judge found that the suit is not maintainable under Tamil Nadu
Co-operative Societies Act 1963 and dismissed the suit. In the appeal also, the
learned First Appellate Judge found that the suit is barred under Tamil Nadu
Co-operative Societies Act 1963 and therefore the dismissal of the suit was
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S.A.No.428 of 2019
confirmed and the appeal was dismissed. Now the appellant is before this
Court by filing Second Appeal.
7. The learned counsel for the appellant submitted that the appellant is
prepared to pay the amount and he has taken steps to address the respondent
to reduce the interest and penal interest, so that he can pay the amount.
Nothing on merits canvassed before the Court. Section 156 of Tamil Nadu Co-
operative Societies Act 1983 reads as follows:
Section 156: "Bar of jurisdiction of Civil Courts:-
Notwithstanding anything contained in any other law for the
time being in force no order or award passed, decision or
action taken or direction issued under this act by an
arbitrator, a liquidator, the registrar or an officer authorized
or empowered by him the tribunal or the Government or any
officer subordinate to them shall be liable to be called in
question in any Court and no injunction shall be granted by
any Court in respect of anything which is done or intended to
be done by or under this act."
8. Admittedly, the defendant in this case is society established under
Tamil Nadu Cooperative Societies Act. There is no dispute with regard to the
availing of loan from the society by executing a mortgage. Only case of
appellant is without default in paying loan amount arbitration proceeding was
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S.A.No.428 of 2019
initiated and award in ARC.No.138 of 2003-2004 had been passed. If at all,
the appellant is aggrieved against the arbitration proceedings, he ought to
have proceeded under the provisions of Tamil Nadu Co-operative Societies
Act. Absolutely, he has no right in seeking the relief of redemption of
mortgage in Civil Court. Under Section 156 Tamil Nadu Cooperative Societies
Act, jurisdiction of the Civil Court is barred so far as the matter is governed by
Tamil Nadu Cooperative Societies Act. Both the Courts rightly found that the
suit is not maintainable before the Civil court and rightly dismissed the suit.
This Court has no reason to interfere with the judgments of the Courts below.
There is no substantial question(s) of law involved in this Second Appeal.
Thus, the judgment of the learned First Appellate Court in A.S.No.382 of 2014
is confirmed and this Second Appeal is dismissed.
9. Now it is submitted that the appellant is willing to repay the amount.
The respondent is directed to accommodate the appellant and facilitate the
payment of award amount with subsequent interest, if permissible, so that he
can pay the amount due to the respondent and save the property. No costs.
Consequently connected miscellaneous petitions are closed.
01.12.2021
jai
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S.A.No.428 of 2019
G.CHANDRASEKHARAN, J.
jai
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
To
1. The Special Officer
Rep. by Chennai Metropolitan
Co,Op. Housing society Limited,
No.38, Ritherdon road,
Vepery,
Chennai-07
2. The V Additional Judge (TADA),
City Civil Court,
Chennai.
3. The III Assistant Judge,
City Civil Court,
Chennai.
S.A.No.428 of 2019
01.12.2021
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