Madras High Court
Regd. Office At G-3 vs Nalini Sundararaman on 26 October, 2021
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.10.2021
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.S. No.654 of 2014
M/s.Shree Vari Villas Private Limited,
(Amended as per order dated 12.08.2020 in A.No.1620 of 2020)
Regd. Office at G-3, 9/6,
Pasumarthi Street, Kodambakkam,
Chennai 600 024,
Rep. by its Managing Director,
Mr.P.Sukumaran. ... Plaintiff
-Versus-
1.Nalini Sundararaman
Flat No.3, Shoba Regency,
Old No.58, M.G.Ramachandran Road,
Kalashetra Colony, Besant Nagar,
Chennai 600 090.
2.S.Sundararaman,
Flat No.3, Shoba Regency,
Old No.58, M.G.Ramachandran Road,
Kalashetra Colony, Besant Nagar,
Chennai 600 090.
3.Madan Chander,
Flat No.3, Shoba Regency,
Old No.58, M.G.Ramachandran Road,
Kalashetra Colony, Besant Nagar,
Chennai 600 090. ... Defendants
Prayer: Civil suit filed under Order 37 Rule 2 of Civil Procedure Code,
1908 with Order IV Rule 1 of O.S.Rules, praying for the following
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judgment and decree
a) directing the defendants to pay to the plaintiff a sum of
Rs.8,06,32,065/- (Rupees Eight Crores Six Lakhs Thirty Two Thousand
and Sixty Five only) together with contractual rate of interest thereon at
the rate of 30% p.a. as agreed upon by the defendants from the date of
plaint till the date of realization.
b) for costs of the suit.
For Plaintiff : Mr.G.B.Sabari Das
For Defendants : Exparte
JUDGMENT
The suit for recovery of money based on the promissory note
executed by the defendants. The suit is filed as summary suit under
Order 37 Rule 2 of C.P.C.
2.The defendant though entered appearance through counsel
sought leave to defend and the same was granted. Thereafter, they did
not show any interest in filing written statement and contest the matter
and therefore, on 16.10.2020, after nearly three years for the defendant to
file his statement and 6 years after institution of the suit, the defendants
were set exparte and exparte evidence recorded. Before the learned
Master, Mr.V.Karthick, the Chief Accountant of the plaintiff Company
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has been examined as P.W.1, 30 documents were marked as Exs.P1 to
P30.
3.The gist of the plaintiff case as stated in the plaint is that the
plaintiff is in the business of promoting real estate. Mr.S.Ravichandran,
who was the Managing Director of the plaintiff Company in his
individual capacity entered into agreement with the first defendant for
purchase of a landed property at Kumbakonam for developing the same
as apartment. Since the Encumbrance Certificate from the Sub Registrar
Office, Kumbakonam did not reflect any encumbrance, he entered into an
agreement bonafidely with the first defendant on 15.05.2010 for
purchase of the said land for a sale consideration of Rs.4.27 crores and
paid Rs.2.40 crores as advance to the first defendant. Later, when he
intended to get the property registered in his name, he came to know that
the first defendant had already created mortgage in favour of M/s.Raja
Holdings, Financiers and Merchants of Kumbakonam and others in
respect of a property at Kumbakonam and Sriperumpudhur and got
mortgage deed registered at Sriperumpudur, Sub Registrar Office. This
fact was not disclosed by the first defendant to Mr.Ravichandran when
he entered into agreement on 15.05.2010. Thereafter, to get the property
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cleared from mortgage and to get along with the project at Kumbakonam,
the plaintiff has come forward to clear the mortgage debt created in
favour of M/s.Raja Holdings and another. Accordingly, a sum of Rs.9.75
crores was paid to the mortgagee and the encumbrance was cleared. Not
stopping with that, it was later brought to the notice of the plaintiff that
the first defendant has also created another encumbrance over the
property by entering into an MOU for joint venture with one
Radhakrishnan and had received Rs.2 crores. In such circumstances,
mediation took place between the parties and all other stake holders. The
value of the property at Karaikal Road, Kumbakonam was fixed as
Rs.4.50 crores and Radhakrishnan, who had already advanced Rs.2
crores agreed to get back his money and release the encumbrance in that
property. The defendants in turn agreed to execute the sale deed in
favour of the plaintiff and requested to sell the property to any third for
settling the dues to Mr.Radhakrishnan and others. In the said course of
the transaction and as the result of the mediation, consensus was arrived
at between the parties. Minutes of the meeting dated 19.08.2011 was
reduced in writing to the effect that there would be regular interest
waiver of Rs.25 lakhs of the outstanding Rs.9.75 crores payable to
M/s.Raja Holdings, Financiers and Merchants of Kumbakonam and G.
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Kalpana of Chennai. The other landed properties of the defendants
which was also encumbered by way of mortgage were supposed to be
made over in favour of the plaintiff besides release of Dr.Besant Road
properties and Karaikal Road properties at Kumbakonam.
4. It is the case of the plaintiff that after carrying out the terms
of the compromise and MOU entered between the defendants and the
plaintiff, a sum of Rs.6,41,42,231/- and Rs.1,64,89,834/- remains payable
as per the memo of calculation shown in paragraph 19 of the plaint. For
clarity, the same is extracted below:
MEMO OF CALCULATION
SCHEDULE-”A”
DATE DESCRIPTION DEBIT CREDIT
01.09.2011 PRINCIPAL AMOUNT 40000000
30.09.2011 INTEREST FOR SEPTEMBER 2011 1000000
INTEREST PAID FOR SEPTEMBER
2011 1000000
30.09.2011 INTEREST FROM 1.10.2011 TO
30.09.2012 12483466
08.10.2012 INTEREST FROM 1.10.2012 TO
08.10.2012 266666
08.10.2012 REMITTED BY KOTAGIRI PROPERTY
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SALES 8000000
TOTAL 53750132 9000000
BALANCE AS ON 08.10.2012 44750132
INTEREST FROM 09.10.2012 TO
08.08.2013 08.08.2013 12533820
INTEREST FROM 09.08.2013 TO
18.08.2013 18.08.2013 372917
18.08.2013 REMITTED BY KOVALAM
PROPERTY SALES 12222000
Total 57656869 12222000
BALANCE AS ON 18.08.2013 45434869
INTEREST FROM 19.08.2013 TO
18.08.2014 18.08.2014 15669968
INTEREST FROM 19.08.2014 TO
27.08.2014 27.08.2014 492221
EXPENSES FOR MORTGAGE DEED ETC 184897
COMMISSION FOR KOVALAM
PROPERTY 1000000
BALANCE AS ON 27.08.2014(Sch-”A”) 62781955
INTEREST FROM 28.08.2014 TO
22.09.2014 1360276
Total claim of schedule “A” 64142231
SCHEDULE-B
01.09.2011 BALANCE TO RAJA HOLDINGS 60000000
01.09.2011 PAID FOR BESANT ROAD PROPERTY 18700000
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PROPERTY 21000000
Total 60000000 39700000
BALANCE AMOUNT 20300000
INTEREST FROM 01.09.2011
14.06.2012 TO 14.06.2012 4660541
14.06.2012 REMITTED BY THODKADU
PROPERTY SALES 17000000
Total 24960541 17000000
BALANCE AS ON 14.06.2012 7960541
INTEREST FROM 15.06.2012 TO
14.08.2014 14.08.2014 7166816
INTEREST FROM 15.08.2014 TO
27.08.2014 27.08.2014 112774
COMMISSION FOR THODUKADU
PROPERTY 800000
EXPENSES FOR MORTGAGE
DEED ETC 100000
BALANCE AS ON 27.08.2014(Sch.”B”) 16140131
INTEREST FROM 28.08.2014 TO
22.09.2014 349703
Total Claim of Schedule “B” 16489834
TOTAL CLAIM FROM THE DATE OF
PLAINT [“A”+”B” TOGETHER WITH
INTEREST @ 30% P.A] 80632065
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5.It is further case of the plaintiff that the cause of action
has arisen within the jurisdiction of this Court in the following manner:
“21.The cause of action arose within the
jurisdiction of this Hon'ble Court at Chennai, where the
defendants resides, on 11.05.2009 the date on which the
defendants executed and registered two simple mortgage
deeds in favour of M/s.Raja Holdings and G.Kalpana
(which was suppressed by the defendants later on and also
not revealed in the encumbrance certificate), on 15.05.2010
the date entered agreement of sale for the Besant Road
property on 19.01.2011 the date on which the said
Mr.S.Ravichandran given undertaking to clear the Besant
Road property from the mortgage besides the advance
payments, which was accepted by the defendants, on
09.03.2011 the date on which the said Mr.S.Ravichandran
nominated the plaintiff for getting sale deed for the Besant
Road, Kumbakonam property, on 11.03.2011, the date on
which the plaintiff company was incorporated, on
03.06.2011 the date on which M/s.Raja Holdings sent legal
notice to the defendants, on 19.08.2011 the date on which
the mediation talk was finalized among the Raja Holdings
and the 2nd defendant before the plaintiff's director, on
24.08.2011 the date on which the defendants owes to the
Plaintiff a sum of Rs.4 crores/- (Rs.3.5 Crore directly paid
to Raja Holdings and G.Kalpana and Rs.50 lakhs paid to
the defendants to clear the equitable mortgage of two
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properties with third parties), on 24.08.2011 the date on
which the defendants executed letter to the mortgagees to
hand over the title deeds and release of four properties, on
25.08.2011 the date on which the MOU entered between
3rd defendant and the plaintiff, on 29.08.2011 the date on
which the defendants entered MOU with the plaintiff, on
29.08.2011 the defendant 1 and 2 registered simple
mortgage deed to the plaintiff, on the very same date
29.08.2011 the date on which the defendants executed
Power of Attorney in favour of one Mr.Babu Krishnan for
the mortgaged properties, 08.09.2011 the date on which
MOU was entered between the plaintiff and M/s. Raja
Holdings & G.Kalpana, on 12.09.2011 the date on which
the said M/s. Raja Holdings & G.Kalpana released four
properties and executed a registered receipt of discharge
upon payment of Rs.3.5 Crores through the plaintiff, on
24.11.2011 the date on which the said M/s. Raja Holdings
& G.Kalpana had executed a registered receipt of
discharge for Karaikal Road, Kumbakonam property, on
14.06.2012 the date on which the said M/s. Raja Holdings
& G.Kalpana had executed a registered receipt of
discharge from mortgage for the Thodukadu property, on
08.10.2012 the date on which the plaintiff executed a
registered receipt of discharge for the Kotagiri properties
upon payment Rs.80,00,000/-, on 18.08.2013 the date on
which the plaintiff executed a registered receipt of
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discharge for the Kovalam property upon payment of Rs.
1,22,22,000/-, on 27.08.2014 the date on which the plaintiff
demanded for the monies due and given notice to the
defendants and on 28.08.2014 the date on which the
defendants admit their liabilities and executed promissory
notes to that effect and continues to commit default in
repayment and as the cause of action for the suit arises at
Madras, within the limit of this Hon'ble Court Chennai, the
suit before this Hon'ble Court is maintainable and
entertainable.”
6.The suit is filed as summary suit based on two promissory
note which are marked as Ex.P29 and Ex.P30, wherein the defendants 1
and 2 has executed a pronote dated 28.08.2014 in favour of the plaintiff
for a sum of Rs.6,27,81,955/- repayable with 30% interest and the third
defendant has executed pronote dated 28.08.2014 for a sum of
Rs.1,61,40,131/- repayable with 30% interest.
7.The pronote Exs.P.29 and P30 were executed by the
defendants on 28.08.2014. The plaintiff has come to the Court and
presented the plaint on 23rd September 2014. Though opportunity was
granted to the defendants to contest the suit they have chosen not to
contest inspite of leave granted to the defendants. Therefore, the
pronotes which are marked as Exs.P29 and P30, remains unchallenged.
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Since the suit is filed within the period of limitation and consideration for
the pronote been explained by the plaintiff through the evidence let in by
the plaintiff, this court is of the view that the plaintiff is entitled for the
decree as prayed for as far as the principal amount exhibited in the
pronotes Ex.P29 and Ex.P30. However, though the rate of interest of
30% is agreed and shown as such in the pronote, this court is of the view
that the rate of interest cannot be so exorbitant contrary to statute,
therefore restricted to be 12% p.a. from the date of plaint till the date of
decree. Therefore at the rate of 12% for the decretal amount till
realisation.
8.The suit is decreed as above with costs.
26.10.2021
vri
List of documents marked as exhibits on the side of the plaintiff:
S.No. Exhibits Description of documents
1. Ex.P1 Authorisation Letter for P.W.1 Original dated 04.12.2020
2. Ex.P2 Xerox copy of Incorporation Certification of the plaintiff dated
11.03.2011
3. Ex.P3 Xerox copy of the E.C. For Besant Road Kumbakonam property
dated 4.5.2010
4. Ex.P4 Xerox copy of the agreement of sale between S.Ravichandran
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with the first defendant dated 15.05.2010
S.No. Exhibits Description of documents
5. Ex.P5 Xerox copy of the simple mortgage dated 11.05.2009
6 Ex.P6 Xerox copy of the simple mortgage dated 11.05.2009
7 Ex.P7 Xerox copy of the consent letter executed by S.Ravichandran and
accepted by the first defendant dated 19.01.2011.
8. Ex.P8 Xerox copy of the General Power of Attorney executed by the
first defendant dated 21.01.2011.
9. Ex.P9 Xerox copy of the letter from S.Ravichandran to plaintiff dated
09.03.2011.
10. Ex.P10 Xerox copy of the sale deed executed by the first defendant dated
6.4.2011.
11. Ex.P11 Xerox copy of the MOU between the defendants 1 and 2 and
R.K.Radhakrishnan dated 12.06.2010.
12. Ex.P12 Xerox copy of the EC for Karaikal Road, Kumbakonam property
dated 25.05.2010.
13. Ex.P13 Xerox copy of the letter for seeking redemption of mortgage dated
24.8.2011.
14. Ex.P14 Xerox copy of the simple mortgage deed executed by the first and
second defendants dated 24.08.2011.
15. Ex.P15 Xerox copy of the MOU entered between the plaintiff and the first
and second defendants dated 25.8.2011.
16. Ex.P16 Xerox copy of MOU entered between the plaintiff and the first
and second defendants dated 29.8.2011.
17. Ex.P17 Xerox copy of the General Power of Attorney dated 29.08.2011.
18. Ex.P18 Xerox copy of the sale deed between the plaintiff and the first
defendant dated 7.9.2011.
19. Ex.P19 Xerox copy of the MOU between plaintiff and Raja Holdings and
G.Kalpana dated 8.9.2011.
20. Ex.P20 Xerox copy of the receipt issued by Raja Holdings and G.Kalpana
to the first and second defendants dated 12.09.2011.
21. Ex.P21 Xerox copy of the receipt issued by Raja Holdings and G.Kalpana
to the first and second defendants dated 24.11.2011.
22. Ex.P22 Xerox copy of the receipt issued by the Raja Holdings and
G.Kalpana to 1st and 2nd defendants dated 14.06.2012.
23. Ex.P23 Xerox copy of the receipt issued by the plaintiff to 1st and 2nd
defendants dated 08.10.2012.
24. Ex.P24 Xerox copy of the receipt issued by the plaintiff to 1st and 2nd
defendants dated 18.8.2013
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S.No. Exhibits Description of documents
25. Ex.P25 Xerox copy of the demand notice issued by the plaintiff to 1st and
2nd defendant's residence address dated 27.8.2014.
26 Ex.P26 Xerox copy of the demand notice issued by the plaintiff to 1st and
2nd defendants office address dated 27.8.2014.
27. Ex.P27 Xerox copy of the demand notice issued by the plaintiff to the
third defendant office address dated 27.8.2014.
28. Ex.P28 Xerox copy of the demand notice issued by the plaintiff to the
third defendant's residence address dated 27.8.2014.
29. Ex.P29 Original demand promissory note dated 28.8.2014.
30. Ex.30 Original demand promissory note dated 28.08.2014.
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DR.G.JAYACHANDRAN,J.
VRI
C.S. No.654 of 2014
26.10.2021
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