Madras High Court
Mr.C.Madanraj vs Mohammed Riyaz Shareef on 24 September, 2021
C.S.No.726 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
Civil Suit No.726 of 2019
Mr.C.Madanraj,
Son of Mr.J.Champalal Jain,
Having permanent residence at
No.3/2, Maligai Kandappa Chetty Stret,
Ambur-82, Vellore District,
Having office at NO.28/81, 1st Floor,
Millers Road, Kilpauk,
Chennai - 600 010 ...Plaintiff
Vs.
Mohammed Riyaz Shareef,
Son of Janab Mohammed Sulthan Shareef,
No.28/81, Millers Road, Kilpauk,
Chennai - 600 010. ...Defendant
Plaint filed under Order IV Rule 1 and Order XXXVII Rule 1
and 2 of Rules of the High Court, Madras, Original Side R/w. Order
VII Rule 1 and Order XXXIV Rule 1 & 2 of the Code of Civil
Procedure, 1908, praying for judgement and decree against the
defendant:
(a) to pass a Preliminary Decree directing the defendant to
pay to the plaintiff a sum of Rs.6,94,90,000/- (Rupees Six Crore
Ninety Four Lakh and Ninety Thousand only) together with interest
at the rate of 24% per annum on the principal amount of
Rs.3,15,00,000.00/- (Rupees Three Crore Fifteen Lakh only) from
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C.S.No.726 of 2019
be fixed by this Hon'ble Court, failing which, this Court be pleased
to pass a decree for selling the suit schedule property in public
auction for realizing the due amount as determined by the Court.
(b) To grant permanent injunction restraining the defendant,
his men, agents, servants, subordinates or anybody claiming
through him from in manner creating any encumbrance with respect
to the suit 'B' schedule property.
(c) To grant permanent injunction restraining the defendant,
his men, agents, servants, subordinates or anybody claiming
through him from in manner disturbing plaintiffs peaceful
possession and enjoyment over the suit 'C' Schedule property.
(d) To award cost of the suit
SCHEDULE OF PROPERTY
Schedule-A
All that piece and parcel of house property, ground and
premises bearing old door No.7/31, New Door No.81, Millers Road,
Kilpauk, Chennai - 600 010, comprised in Survey No.10, Re-Survey
No.3111/2, New Re-Survey No.3111/7(part) of Puraswakkam
Village, measuring 1989 sq.ft. and bounded on the
North by : Purasai Arunagiri Nadar Thirupokazh Kazhagam
South by : Passage belong to Tharunisa
East by : Millers Road and property settled to Mohammed
Riyaz Shareef
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C.S.No.726 of 2019
West by : Property belonging to Tharunnisa
Situated within the limits of Chennai Corporation, Registration
District of Central Chennai and Sub-Registration District of
Puasawakkam.
SCHEDULE-B
(Forming part of 'A' schedule property)
All that built up area measuring 1800 sq.ft. situated in the
first floor of the building bearing old door No.7/31, New Door No.81,
Millers Road, Kilpauk, Chennai - 600 010, together with 1/3rd
Undivided share in the land measuring 1989 sq.ft. comprised in
Survey No.10, Re-Survey No.3111/2, New Re-Survey No.3111/7
(part) of Purasawakkam Village, described in the schedule A,
situated within the limits of Chennai Corporation, Registration
district of Central Chennai and Sub-Registration District of
Purasawakkam.
SCHEDULE -C
(Forming part of 'B' schedule property)
All that piece and parcel of Shop portion measuring 490 sq.ft.
in front portion of the first floor of the building bearing old door
No.7/31, New door No.81, Millers Road, Kilpauk, Chennai - 600 010,
under the use and occupation of the plaintiff forming part of 'B'
schedule property.
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C.S.No.726 of 2019
For Plaintiff :Mr.M.Himavanth
For Defendant :Defendant set ex-parte on 19.02.2021
JUDGMENT
The Civil Suit is filed by the plaintiff praying for judgement
and decree against the defendant:
(a) to pass a Preliminary Decree directing the
defendant to pay to the plaintiff a sum of
Rs.6,94,90,000/- (Rupees Six Crore Ninety Four Lakh and
Ninety Thousand only) together with interest at the rate of
24% per annum on the principal amount of
Rs.3,15,00,000.00/- (Rupees Three Crore Fifteen Lakh
only) from the date of plaint till the date of realization
within the time frame to be fixed by this Hon'ble Court,
failing which this court be pleased to pass a decree for
selling the suit schedule property in public auction for
realizing the due amount as determined by the Court.
b. To grant permanent injunction restraining the
defendant, his men, agents servants, subordinates or
anybody claiming through him from in manner creating
any encumbrance with respect to the suit 'B' schedule
property
c. To grant permanent injunction restraining the
defendant, his men, agents, servants, subordinates or
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C.S.No.726 of 2019
anybody claiming through him from in manner disturbing
plaintiffs peaceful possession and enjoyment over the suit
'C' Schedule property.
d. To award cost of the suit.
2. It is the case of the plaintiff that he was a businessman at
Ambur and in Chennai. The defendant was doing leather business at
Ambur and he was introduced to the plaintiff through his friends
Mr.Servattulla and Mr.Rizwan. During the year 2013, the defendant
approached the plaintiff and sought for loan to a tune of Rs.Four
Crore to meet his business requirements. The defendant had offered
the suit schedule mentioned property as collateral for the loan.
However, the plaintiff informed the defendant that he will disburse
the loan in instalments as lending such huge sum in one stretch
may not be practically possible and the defendant had also agreed
for the same.
(b) The plaintiff further states that on 19.07.2013, the
defendant received a sum of Rs.50,00,000/- by executing a
registered mortgage deed dated 19.07.2013 bearing document
No.2986 of 2013 on the file of SRO Purasaiwakkam, by mortgaging
portion of his property at Millers Road, Kilpauk, Chennai, the
description of which is morefully given in Schedule 'B' property
which form part of Schedule 'A' and the defendant had agreed to
repay the said sum together with interest at the rate of 24% per
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C.S.No.726 of 2019
annum. Pursuant to the mortgage, the defendant had handed over
the original title deeds to the plaintiff and gave possession of a
portion of the property in First Floor to the plaintiff to have his
office, which is morefully referred to as Schedule 'C' forming part of
Schedule 'A'. In consonance to the security already given by way of
mortgage, the plaintiff had paid a sum of Rs.20,00,000/- (Rupees
Twenty lakhs) through RTGS on 22.07.2013 and also paid another
sum of Rs.30,00,000/- (Rupees Thirty lakhs only) on 25.07.2013.
The defendant executed demand promissory note in favour of the
plaintiff. On 16.07.2014, the plaintiff gave another sum of
Rs.20,00,000/- through RTGS. On 19.07.2014, the defendant
received a sum of Rs.40,00,000/- by cash and another sum of
Rs.40,00,000/- by cash on 22.07.2014 by executing demand
promissory notes as additional security acknowledging the past and
present liability in addition to the mortgage already created.
Further, on 19.11.2015, the plaintiff paid another sum of
Rs.14,00,000/- through RTGS and Rs.36,00,000/- by cash on
22.11.2015 and the defendant had received the aforesaid sum and
also executed demand promissory notes in favour of the plaintiff in
addition to the mortgage already created. Subsequently, the
defendant had received another sum of Rs.15,00,000/- on
25.05.2016 by executing demand promissory note and on the same
date, the defendant had acknowledged the receipt of aforesaid
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C.S.No.726 of 2019
payments to the tune of Rs.2,65,00,000/- in writing and agreed to
repay the same together with interest at the rate of 24% per
annum by deed of acknowledgement dated 20.05.2016. The
defendant sought for further loan of Rs.1,35,00,000/- from the
plaintiff to clear another mortgage created in respect to other
portion of the suit property so that the defendant can dispose the
property and assured repayment in a period of one year thereon by
disposing his property. But the plaintiff paid to the defendant a sum
of Rs.50,00,000/-. The defendant received the said sum on
25.07.2017 by executing demand promissory note and
acknowledged the receipt of total sum of Rs.3,15,00,000/- on
25.02.2017 and agreed to repay the said sum with interest at 24%
per annum. Subsequently, when the plaintiff demanded for
payment, the defendant failed to repay the amount. The defendant
was engaging henchmen and attempting to deprive the payments to
the plaintiff. The act of the defendant is nothing but cheating and
breach of trust. The defendant is attempting to create third party
interest and encumbrance over the schedule property to deprive
legitimate payment to the plaintiff. If the defendant is allowed to
create third party interest over the property, the plaintiff will be put
to great hardship and irreparable. Since the loan was availed by the
defendant pursuant to the mortgage and the defendant had failed to
make the payment as agreed and acknowledged by him. The
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C.S.No.726 of 2019
defendant is liable to pay to the plaintiff a sum of Rs.6,94,90,000/-
being the principal amount of Rs.3,15,00,000/- together with
interest at the rate of 24% per annum. After repeated demands, the
defendant has neither paid the principal nor interest part of it.
Hence, the present suit.
3. The defendant was called absent and set ex-parte by this
Court on 19.02.2021.
4. During the course of trial, the plaintiff examined himself as
P.W.1 and marked Exs.P-1 to P-15.
5. On a perusal of the plaint averments, the evidence of the
plaintiff as P.W.1 and Exs.P-1 to P-15, it is clear that the plaintiff
has proved that the defendant had executed mortgage deed and
promissory notes in favour of the plaintiff and not repaid the loan
amount. Hence, the plaintiff is entitled to the preliminary decree.
6. Accordingly, the Suit is decreed as prayed for. The
defendant shall pay the claim amount to the plaintiff within a period
of eight weeks from today. No costs.
24.09.2021
(1/2)
Internet: Yes
mrm/vsi
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C.S.No.726 of 2019
Witnesses examined on the side of plaintiff:--
P.W.1 Mr.C.Madanraj
List of documents marked on the side of plaintiff:--
Exhibit Date Description of the exhibit
No.
P-1 19.07.2013 Original Registered Mortgage deed executed by
defendant in favour of plaintiff
P-2 22.07.2013 Original Statement of account Indicating RTGS
transfer to defendant.
P-3 25.07.2013 Original Promissory Note executed by
defendant in favour of plaintiff
P-4 16.07.2014 Original Statement of Accounts indicating by
RTGS transfer to defendant.
P-5 19.07.2014 Original Promissory note executed by
defendant in favour of plaintiff.
P-6 22.07.2014 Original Promissory Note executed by
defendant in favour of plaintiff.
P-7 19.11.2015 Original statement of account indicating RTGS
transfer to defendant
P-8 22.11.2015 Original Promissory note
P-9 20.05.2016 Original Promissory note
P-10 20.05.2016 Written acknowledgement
P-11 25.02.2017 Original Promissory note
P-12 25.02.2017 Written acknowledgement
P-13 05.12.2019 Photocopy of notice issued to defendant with
receipt
P-14 17.12.2019 Postal cover returned
P-15 .. Original Encumbrance Certificate
Witnesses examined on the side of defendant:-- Nil
Documents marked on the side of defendant:- Nil
Court witness and Court documents : Nil
24.09.2021
(2/2)
Internet: Yes
mrm/vsi
Registry to Note: Registry is directed to issue the judgement copy along
with the above typed list of witnesses and documents.
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C.S.No.726 of 2019
V.PARTHIBAN.J.,
mrm/vsi
C.S.No.726 of 2019
24.09.2021
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