Madras High Court
Anand Kumar vs B.Varadhan on 8 October, 2021
A.S.Nos.836 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.836 of 2014
Anand Kumar ... Appellant
Vs.
1.B.Varadhan
2.The Bank of India, rep. by its
Branch Manager, Erode Branch
Having Office at No.68-70,
Gandhi Road Erode
3.Authorized Officer,
Bank of India, Coimbatore Zone
Star House,
No.324, Oppanakara Street
Coimbatore
1/14
http://www.judis.nic.in
A.S.Nos.836 of 2014
4.T.Devakumar
Son of Thangamuthu
Proprietor TDK Enterprises
S.R.Petrol Bunk Solar Town
Erode
5.T.S.Chelladhurai
6. Ezhilarasi ... Respondents
PRAYER: Appeal Suit filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree dated 06.09.2014 in
O.S.No.48 of 2009 on the file of the learned II Additional District
Judge, Puducherry.
For Appellant : Mr.V.V.Sairam
For Respondent : Mr.S.Nagarajan for R.1
Mr.Benjamin George for R.2 & R.3
Mr.V.G.Suresh Kumar for R.6
R.4 & R.5 not ready in notice.
2/14
http://www.judis.nic.in
A.S.Nos.836 of 2014
JUDGMENT
The unsuccessful appellant before the Court below has
approached this Court by way of this appeal. The plaintiff had filed a
mortgage suit O.S.No.48 of 2009 on the file of the II Additional
District Judge, Puducherry for recovery of a sum of Rs.9,43,500/- from
the 1st defendant and to pass a preliminary decree regarding the same
and in default to pass a final decree for sale of the mortgaged property
and in case the sale proceeds so ordered is insufficient, then to pass a
personal decree against the plaintiff.
2. The brief facts which has culminated in the filing of the above
1st appeal are herein below set out:-
Plaintiff's Case:
3. It is the case of the plaintiff that the 1st defendant who was
known to him had requested him to extend a loan of a sum of
http://www.judis.nic.in
A.S.Nos.836 of 2014
Rs.5,00,000/- for discharging his debts to the Union Bank of India,
Puducherry Branch. The 1st defendant had agreed to pay interest and
had also offered to mortgage his property which has been described in
the suit schedule. On this assurance the plaintiff had paid a sum of
Rs.5,00,000/- to the 1st defendant who executed a simple mortgage
deed dated 03.08.2004 in favour of the plaintiff. The defendant had
agreed to redeem the mortgage within the period of 3 years from the
date of execution and registration of the mortgage deed. He had also
agreed to pay interest at 18% per annum on the sum of Rs.5,00,000/-.
4. The plaintiff would further submit that the defendant had
undertaken to hand over the original title deeds relating to the suit
schedule property as soon as he received it from the bank. However,
contrary to the assurance, the 1st defendant had offered it as security to
the Bank of India, towards the loan availed by the 4th defendant. It
appears that, the bank had initiated proceedings against the 4th
http://www.judis.nic.in
A.S.Nos.836 of 2014
defendant, the 1st defendant and one Daisey Rani demanding
repayment of the loan and had taken possession of the schedule
mentioned property.
5. On coming to know about the same the plaintiff had issued a
legal notice to the 1st defendant and the 3rd defendant on 07.06.2007
to which there was no reply from the 1st defendant. The 3rd defendant
had sent a reply dated 14.06.2007 stating that the mortgage would not
bind the 2nd defendant Bank and that they had obtained an
encumbrance certificate where this encumbrance was not reflected. The
plaintiff therefore issued a re-joinder dated 20.06.2007.
6. Meanwhile, the 5th defendant had filed a suit for recovery of
money against the 1st defendant on the file of the learned Additional
Subordinate Judge, Puducherry. Since the 1st defendant remained ex-
parte in the said proceedings, an ex-parte Decree came to be passed
http://www.judis.nic.in
A.S.Nos.836 of 2014
and the 5th defendant had filed an execution proceedings to execute the
decree. The 1st defendant did not mention about the mortgage created
in favour of the plaintiff and had also not taken any steps to raise the
attachment in respect of the property. Though the value of the property
was over a sum of Rs.35,00,000/- the 5th defendant had mentioned its
value as Rs.5,00,000/- and in an auction sale conducted on 31.01.2008,
pursuant to the execution proceedings the property was sold and a sale
certificate issued to the auction purchaser. The plaintiff would submit
that the sale had to be cancelled as the plaintiff had a first charge over
the suit property. Therefore, the plaintiff has come forward with the
instant suit.
Written Statement of the 1st defendant:
7. The 1st defendant had admitted the borrowal and the rate of
interest and also the execution of the simple mortgage deed dated
03.08.2004. He also admitted the fact that he had agreed to hand over
http://www.judis.nic.in
A.S.Nos.836 of 2014
the original sale deed on receiving it from the bank and had undertaken
to redeem the mortgage within a period of 3 years. However, he would
contend that since the property had been given as a security to the Bank
of India, Coimbatore Zone, for the loan availed by the 4th defendant,
the bank had brought the property to sale in exercise of their rights
under the SARFASI Act. Since the 4th defendant had defaulted in the
payment of the money, the property was brought to sale. The 1st
defendant conceded that he had not taken any steps to raise the
attachment and would also concur with the statement of the plaintiff
that the property has been under-valued. He would further submit that
the Civil Court had no jurisdiction in the light of the SARFASI Act. He
therefore, sought for the dismissal of the suit.
Written Statement of the D.2 and D.3:
8. The 2nd and 3rd defendants who are the bank had stated that
the Civil Court has no jurisdiction to entertain a suit in respect of the
http://www.judis.nic.in
A.S.Nos.836 of 2014
matters in which the Debt Recovery Tribunal was empowered to
decide. The provisions of Section 34 spelt out the bar of jurisdiction of
the Civil Court, therefore they sought to have the suit dismissed.
Written Statement of D.4:
9. The written statement of the 4th defendant was that the 1st
defendant had stood guarantee for the loan borrowed by him and the
schedule mentioned property having been offered as a security by the
1st defendant, the plaintiff could not seek to enforce a right on the
property. He therefore, sought for the dismissal of this suit.
Written Statement of the 5th defendant:
10. The 5th defendant would at the outset, submit that he is an
unnecessary party. He had filed O.S.No.264 of 2005 on the file of the
learned Additional Subordinate Judge, Puducherry, against the 1st
defendant for recovery of money. In the said proceeding he had taken
http://www.judis.nic.in
A.S.Nos.836 of 2014
out an application for attachment of the suit property and the property
was also ordered to be attached. Thereafter the suit was decreed on
20.03.2006. After obtaining the decree, the 5th defendant had initiated
execution proceeding in E.P.No.109 of 2008 for bringing the property
to sale and sale was ordered. The property was sold to the 6th
defendant who has deposited the sale amount. Therefore, the suit is
infructuous and nothing remains to be considered. The 6th defendant
had also more or less adopted the defence of the 5th defendant.
11. Originally the learned Additional District Judge, Puducherry
had framed the following issues:
i) Whether the plaintiff is entitled to the suit amount as
prayed for?
ii) To what other relief the plaintiff is entitled?
http://www.judis.nic.in
A.S.Nos.836 of 2014
Thereafter, the Additional District Judge had deemed it fit to frame an
additional issue which reads as follows: Whether this Court has
jurisdiction to try the suit?
12. During trial, the plaintiff had examined 6 witnesses on his
side and marked Ex.A.1 to Ex.37. On the side of the defendant, 4
witnesses were examined and Ex.B.1 and Ex.B.2 were marked.
13. The Court below on considering the evidence on record held
that the plaintiff was entitled to a decree for recovery of money. Since
the bank had already taken steps and had brought the property to sale,
the suit was decreed granting a personal decree against the 1st
defendant for the recovery of the suit amount with interest at the rate of
6% per annum. The 1st defendant was directed to pay the plaintiff a
sum of Rs.9,43,500/- with subsequent interest at the rate of 6% per
annum on the principal amount of 5,00,000/-.
http://www.judis.nic.in
A.S.Nos.836 of 2014
14. Challenging this Judgment and Decree the plaintiff is before
this Court. The only point for consideration which arises in the above
appeal is:
i) Whether the plaintiff is entitled to a mortgage decree?
15. From the perusal of the records, evidence and documents it is
seen that the plaintiff had executed a simple mortgage deed in favour of
the petitioner on 03.08.2004, registered as Document No.2549 of 2004
in the office of the Sub Registrar, Villianour, Puducherry. However the
1st defendant even on the date of availing the loan from the plaintiff
had mortgaged the property with the defendant bank by depositing the
title deeds of the property with them. That apart, he had mortgaged the
property with the bank as security for the loan borrowed by the 4th
defendant. In addition to that, the 1st defendant also owed money to the
http://www.judis.nic.in
A.S.Nos.836 of 2014
5th defendant who has initiated proceedings for recovering the money
in which he had obtained an order of attachment of the suit property in
the suit O.S.No.264 of 2005, on the file of the Hon'ble Additional
Subordinate Judge, Puducherry. The records which show that the 1st
defendant had remained an ex-parte and the 5th defendant had obtained
an ex-parte decree in the said suit. Thereafter, an execution
proceedings had been initiated in the E.P.No.109 of 2006 for the sale of
the suit property which had been already attached. On 31.01.2008 a
public auction pursuant to the orders of Courts were held and the
property was sold to the highest bidder namely, the 6th defendant
herein.
16. Therefore, the property was not available even on the date of
the filing of the suit. The learned Trial Judge has rightly rejected the
plaintiff's request for granting a mortgage decree, and I do not find any
http://www.judis.nic.in
A.S.Nos.836 of 2014
reason to interfere with the said Judgment and Decree. The point for
consideration is answered against the plaintiff and the appeal stands
dismissed and therefore, the Judgment and Decree of the Trial Court is
confirmed however, there shall be no order as to costs.
08.10.2021
Index : Yes/No
Internet : Yes/No
shr
To
II Additional District Judge,
Puducherry.
http://www.judis.nic.in
A.S.Nos.836 of 2014
P.T. ASHA, J,
shr
A.S.No.836 of 2014
08.10.2021
http://www.judis.nic.in
