Madras High Court
Kirubakaran vs M/S.Eatern Minerals And ... on 24 February, 2021
A.S.No.887 of 2006
and M.P.No.1 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
A.S.No.887 of 2006
and
M.P.No.1 of 2006
Kirubakaran .. Appellant
Vs.
1.M/s.Eatern Minerals and Chemicals (P) Limited,
Rep.by its Director,
20, Cathedral Garden Road,
Nungambakkam,
Chennai-600 034.
2.Mrs.Suseela Devi
3.M.P.PArthasarathy Mudaliar
4.Anand Sekar .. Respondents
PRAYER: Appeal Suit is filed under Section 96 of C.P.C against the judgment
and decree dated 15.09.2006 passed by the Additional District Judge cum Fast
Track Judge No.I, Chengalpattu in O.S.No.791 of 2004.
For Appellant : Ms.Devie Soccalingame for
M/s.R.Syeed Mustafa
For Respondents : Mr.S.Raghunathan for R1
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1/9
A.S.No.887 of 2006
and M.P.No.1 of 2006
Notice dispensed with for R2
JUDGMENT
This Appeal Suit is filed against the judgment and decree of the
trial Court in the suit filed for recovery of money towards the goods sold and
delivered and secured by three simple mortgages in respect of the suit property
executed by the defendants 1 to 3 on 08.06.1989, 22.03.1989, 18.07.1991
respectively.
2. The short point involved in this appeal is that the 1st respondent
was distributor of Electron Brand Fluorescent tubes, Lamps and Fittings. They
appointed the appellant as their retail seller of the products and supplied goods
on credit. As a security for the goods sold and delivered, the appellant
mortgaged the suit property initially for a sum of Rs.1,00,000/- on 18.06.1989;
subsequently for a sum of Rs.50,000/- on 22.03.1989 and for a sum of
Rs.1,38,000/- on 18.07.1991. As per the plaint, on the date of filing the suit, the
defendants 1 to 3 paid only a sum of Rs.32,803/-. Suppressing the factum of
mortgage, they sold the property to the 4th defendant. Having coming to know
about that, the plaintiff has caused notice to the defendants 1 to 4 on
09.11.1992. However, the notice did not evoke any action on the defendants.
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A.S.No.887 of 2006
and M.P.No.1 of 2006
Hence, the suit was laid.
3. Earlier the suit was filed before the Sub Court, Poonamallee and
the same has been numbered as O.S.No.577 of 1999, later it was transferred to
Fast Track Court, Chengalpattu and renumbered as O.S.No.491 of 2004.
4. The plaintiff prayed for the following relief in the said suit:-
“1.To pass a preliminary decree on directing
the defendants to pay a sum of Rs.8,33,203/- within
the date fixed by this Hon'ble Court.
2.To pass final decree in case of default in
payment of the amount within the time fixed by the
Court direct to sell the plaint schedule property in
public auction for the satisfaction of the decree
amount.
3.Direct the defendants to pay the cost of the
suit and
4.pass such other order orders as this Hon'ble
Court deems fit and proper and render justice.”
5. The defendants 1 to 3/the principal borrower and guarantors for
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A.S.No.887 of 2006
and M.P.No.1 of 2006
the mortgage remained exparte before the trial Court, the subsequent
purchaser, the 4th respondent herein alone contested the suit by filing written
statement. In the written statement, the 4th respondent had doubted the
genuineness of the mortgage deed alleged to have been agreed entered by his
vendors in favour of the plaintiff and also pleaded that he is a bonafide
purchaser for the valuable consideration without knowledge about the
mortgage, therefore, the suit is not maintainable as against him.
6. The trial Court framed the following issues based on the
pleadings:
“1. Whether the suit filed within the period of
limitation?
2. Whether the 4th defendant a bonafide
purchaser for valuable consideration without prior
knowledge of the mortgage?
3. Whether the plaintiff is entitled for a
preliminary decree as prayed?
4. What relief the plaintiff is entitled?”
7. On behalf of the plaintiff one Bhavanishankar was examined as
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A.S.No.887 of 2006
and M.P.No.1 of 2006
PW.1. He is the Director of the plaintiff's company. Six exhibits were marked in
support of the suit claim. On behalf of the defendants, the 4th defendant was
examined as DW.1 and nine exhibits were marked.
8. The trial Court after perusing the sale deed (Ex.A.6) relied by
the 4th defendant to establish himself as a bonafide purchaser and encumbrance
certificates-Ex.A.5 and Ex.B.4 to Ex.B.6 held that the 4th defendant is not a
bonafide purchaser, he has not vigilantly scrutinized the title documents before
he purchased. Further, the trial Court has also took exception on the conduct of
the 4th defendant, for challenging the validity of the mortgage deeds Ex.A1 to
Ex.A3, to which he had no personal knowledge.
9. Being aggrieved by the judgment and decree, the present appeal
is filed on the ground that the 4th defendant purchased the suit property on
03.01.1992 being fully satisfied that there was no encumbrance over the
property. The original title deed of the property was not in possession of his
vendor and she has given a public notice in the local daily on 28.07.1990 about
the loss of the title deed. Being satisfied with the title of his vendor through the
patta Ex.B2 and the parent document Ex.B1, to which the vendor has derived
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A.S.No.887 of 2006
and M.P.No.1 of 2006
title, he purchased the property and he is in possession and enjoyment of the
property. The Tax Register was muted in his name by the Tambaram
Municipality vide Ex.B7 and electricity service has also been transferred in his
name vide Ex.B8. When he obtained encumbrance for a period of 30 years, it
did not reveal any mortgage executed by the defendants 1 to 3 in favour of the
plaintiff. The suit filed in the year 1999 for the transaction of the year 1992 is
barred by limitation. However, the Court below has not considered the issue
and held against the defendants.
10. The point for determination whether the
appellant/4th defendant in the suit was the bonafide
purchaser of the suit property.
11. The learned counsel for the appellant rely upon the recital
found in the sale deed and entries found in the encumbrance, to establish the
appellant was the bonafide purchaser. The encumbrance Ex.B4 to Ex.B6 are not
for the period of 30 years as contended by the defendants in the written
statement. Ex.B.5 is between 05.12.1986 to 16.09.1989, Ex.B.6 is between
15.02.1989 to 15.03.1990. Ex.B.4 is between 01.07.1977 to 28.01.1992. Ex.B5
is dated 16.02.1989 and Ex.B.6 is dated 15.031990. The defendants admit that
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A.S.No.887 of 2006
and M.P.No.1 of 2006
these two encumbrances were not obtained by him but was shown by the
vendor. The applicant name shown as Suseela Devi who is the 1st defendant in
the suit. So, it is clear that the appellant has not applied for encumbrance on his
own before purchasing the property or verified the title document. No doubt
Ex.B4-encumbrance has been issued on the application of the defendants. The
Sub Registrar certified that after purchase of the property by Susheela Devi and
Annammal in the year 1997, the next entry shown is the transfer by one
Susheela Devi in favour of the 4th defendant. When the title document was not
available and the paper publication was issued for the public announcement
about the loss of document, the defendant ought to have been more vigilant
before purchasing the property. Even if one presumed that he has bonafidely
entered into sale agreement and the mortgage deed was not brought to his
knowledge at the time of sale atleast on receipt of the suit summon he should
have contacted his vendor to verify and sought to rectify the defects and charge
in the property sold in the sale deed Ex.A6. It is admitted by the 4th defendant in
the cross examination that he had not met his vendor and enquired about the
suit and bailing him out from the litigation as promised in the sale deed. Except
the plead that he is a bonafide purchaser for valid consideration and put in
possession of the property there is no documents to infer or prove this plea. If
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A.S.No.887 of 2006
and M.P.No.1 of 2006
he was really a bonafide purchaser unknowingly purchased the property, he
should have shown adequate care required for an average purchaser of property.
12. Regarding the plea of limitation though no issue was framed in
spite of ground raised in the written statement, since the suit prayer is based on
the mortgage deed, the period of limitation is 12 years for foreclosure and the
relief sought is a preliminary decree to that effect and subsequently for final
decree for recovery and put the mortgage property into sale. Hence this Court
does not find any force in the submissions of the appellant regarding the
limitation.
13. In the said circumstances, this Court finds no merit to interfere
the findings of the trial Court. Hence this Appeal Suit is dismissed.
Consequently, connected miscellaneous petition is also closed. No costs.
24.02.2021
Index : Yes/No
Internet :Yes/No
rpl
DR.G.JAYACHANDRAN,J.
https://www.mhc.tn.gov.in/judis/
A.S.No.887 of 2006
and M.P.No.1 of 2006
rpl
To,
The Additional District Judge cum Fast Track Judge No.I,
Chengalpattu.
A.S.No.887 of 2006
& M.P.No.1 of 2006
24.02.2021
https://www.mhc.tn.gov.in/judis/
