Madras High Court
Reliance Home Finance Limited vs N.H. Rahima on 6 June, 2022
C.M.P.No10558 of 2021
in O.S.A.SR.No.157044 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2022
CORAM:
THE HON'BLE MR. JUSTICE M.DURAISWAMY
AND
THE HON'BLE JUSTICE MR. SUNDER MOHAN, J
C.M.P.No.10558 of 2021
in O.S.A.SR.No.94861 of 2020
Reliance Home Finance Limited,
Reliance House, Ground Floor,
No.5, Haddows Road,
Nungambakkam,
Chennai – 600 006.
... Petitioner/3rd Party
v.
S.K.A. Abdul Kader (Since deceased)
1. N.H. Rahima
2. A.Shek Mohamed Aliar
3. A. hameed Sulthan
4. Mallika Fathima
(Plaintiffs 1 to 4 impleaded as per order
dated 17.09.2015 in A.No.4851/2014)
5.Mrs. Vijayalakshmi
6. G. Suresh
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7. Ms. Nivedha Ramesh
8. Minor Krishnan
Represented by Guardian
Mrs. Vijayalakshmi
9. M.Rajendra Kumar
10. M.Omprakash
11. Santhosam
12. The Sub Registrar,
Adyar, Chennai – 600 020. ... Respondents
CMP No.10558 of 2021: Civil Miscellaneous Petition filed under section
17 and Article 123 of the Limitation Act to condone the delay of 4329
days in filing the Original Side Appeal against the order dated 18.03.2008
made in O.A.No.308 of 2008 in C.S. No.280 of 2008.
O.S.A.SR.No.94861 of 2020 : Original Side Appeal filed under Clause 15
of Letters Patent and Order 36 Rule 9 of Original Side Rules to set aside
the order passed in O.A.No.308 of 2008, dated 18.03.2008.
For Petitioner : Mr. N. Vasantha Kumar
For Respondents : Ms. Srividhya – R2
Mr. Vadivel Deenadayalan,
Addl. Govt. Pleader –R12
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C.M.P.No10558 of 2021
in O.S.A.SR.No.157044 of 2019
ORDER
(Order of the Court made by M.DURAISWAMY,J.)
There is a delay of 4329 days in filing the Original Side Appeal
challenging the order passed in O.A.No.308 of 2008, dated 18.03.2008.
2.1 The plaintiffs filed the suit in C.S.No..280 of 2008 for
specific performance and for other reliefs. In the said suit, the plaintiffs
took out an application in O.A.No.308 of 2008 seeking for an order of
interim injunction restraining the defendants from alienating or
encumbering or altering or in any way dealing with the suit property.
3. The learned Single Judge, by order dated 18.03.2008, directed
the defendants not to create any fresh alienation. In spite of the said order
of interim injunction granted by the learned Single Judge, the appellant,
viz., Reliance Home Finance Limited, advanced loan to the purchaser of
the suit property from the defendants.
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4. According to the parties, the defendants sold the suit property
to the purchaser on 12.04.2017. However, the appellant-Finance Company
advanced loan to the purchaser even prior to the execution of the sale i.e. on
12.04.2017 itself.
5. On a perusal of the sale deed executed by the defendants viz.,
G.Vijayalakshmi and others in favour of one A.Santhosh, it is clear that the
appellant-Finance Company had drawn the cheques even prior to the
execution of the sale deed i.e.
(i) Nine cheques dated 31.03.2017 for a sum of Rs.4,28,23,855/-
and
(ii) Nine cheques dated 10.04.2017 for a sum of Rs.4,28,23,855/-
favouring 1st and 2nd vendors respectively. When the borrower had
purchased the property only on 12.04.2017, the appellant-Finance
Company choose to issue the cheques in favour of the vendors much prior
to the execution of the sale deed. In other words, when the borrower got
title to the property only on 12.04.2017, the reason for issuing the cheques
even prior to 12.04.2017 has not been explained by the appellant-Finance
Company. That apart, when this court had granted an order of interim
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C.M.P.No10558 of 2021
in O.S.A.SR.No.157044 of 2019
injunction in favour of the plaintiffs restraining the defendants from
alienating or encumbering the suit property, the appellant-Finance
Company advanced huge amount to the purchasers.
6. The learned counsel appearing for the 2nd respondent submitted
that the appellant-Finance Company had knowledge about the pendency
of the suit as early as on 25.05.2017, the date on which a notice was sent
to the appellant-Finance Company informing them that legal action would
be initiated against them for violating the order of interim injunction
granted by this court in O.A.No.308 of 2008, dated 18.03.2008.
7. The learned counsel appearing for the appellant-Finance
Company submitted that no notice was sent to the appellant-Finance
Company and that it was only sent to its sister-concern.
8. On a perusal of the notice dated 25.05.2017 and also the
acknowledgement annexed in the typed set of papers, it is clear that the
notice dated 25.05.2017 was very much addressed to the appellant and the
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in O.S.A.SR.No.157044 of 2019
acknowledgement was also received by the respondents' counsel
9. The learned counsel for the appellant submitted that in the
acknowledgement, the seal of Reliance Commercial Finance Limited has
been affixed hence, it should not be taken as proper service of notice.
10. When the notice was addressed to the appellant's company the
affixure of seal shall not vitiate the proper service of notice on them.
Therefore, from the production of notice dated 25.05.2017 and the
acknowledgement in respect of the service of the said notice, the
respondents established that the appellant had full knowledge about the
order of interim injunction granted by this court in the month of May 2017
itself.
11. It is also brought to the notice of this court that the appellant
was impleaded as 8th defendant in 2019 at the instance of the plaintiffs. It
is also pertinent to note that in spite of coming to know about the
pendency of the suit and the order of interim injunction granted by this
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in O.S.A.SR.No.157044 of 2019
court, the appellant choose not to file any application to get themselves
impleaded in the pending suit. It was only at the instance of the plaintiffs
they were impleaded as 8th defendant. Even after the impleadment of the
appellant in the suit, they did not choose to file any application seeking for
vacating the order of interim injunction granted on 18.03.2008. After
keeping quiet till 22.12.2020, the appellant filed the above appeal only on
23.12.2020.
12. From the above it is clear that in spite of having knowledge
about the pendency of the suit in C.S.No.280 of 2008 and also the order of
interim injunction granted in O.A.No.308 of 2008, dated 18.03.2008, the
appellant has filed the above appeal challenging the order passed in
O.A.No.308 of 2008 only on 23.12.2020 along with a petition to condone
the delay of 4329 days in filing the Original Side Appeal. The appellant
has not given any acceptable reasons for the inordinate delay of 4329 days
in filing the appeal.
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13. In the judgment reported in 2015 (1) SCC 680 [H.Dohil
Constructions Company Private Ltd. v. Nahar Exports Limited and
another], the Hon'ble Supreme Court has categorically held that unless
the party seeking for condonation of delay give sufficient cause for the
delay, the delay should not be condoned.
14. The ratio laid down by the Hon'ble Supreme in the said
judgment squarely applies to the facts and circumstances of the present
case.
15. In the case on hand, it is clear that the appellant has not
explained the reasons for condoning the inordinate delay of 4329 in a
proper manner. The mortgaged loan granted by the appellant-company is
clear violation of the order granted in O.A.No.308 of 2008, dated
18.03.2008. Further, the appellant was not diligent in prosecuting the
matter in a proper manner.
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16. For the reasons stated above, we are not inclined to condone
the inordinate delay of 4329 days in filing the Original Side Appeal. The
Petition is liable to be dismissed. Accordingly, the Civil Miscellaneous
Petition is dismissed. Consequently, O.S.A.SR.No.94861 of 2020 is
rejected.
[M.D., J.] [S.M., J.]
06.06.2022
Index : Yes/No
Internet : Yes
Rj
To
The Sub Registrar,
Adyar,
Chennai – 600 020.
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C.M.P.No10558 of 2021
in O.S.A.SR.No.157044 of 2019
M. DURAISWAMY, J.
and
SUNDER MOHAN, J
Rj
C.M.P.No. 10558 of 2021
in O.S.A.SR.No.94861 of 2020
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C.M.P.No10558 of 2021
in O.S.A.SR.No.157044 of 2019
06.06.2022
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