Madras High Court
K.Harikrishnan vs M.S.Chandrasekar @ Kevin ... on 22 March, 2022
C.S.No.345 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.S.No.345 of 2019
K.Harikrishnan ...Plaintiff
Vs.
1.M.S.Chandrasekar @ Kevin Chandrasekar
2. Sulochana Ammal
3. M.S.Baskar
4. Shanthi @ Yazhini
(4th defendant impleaded as per Order dated 01.12.2021
in Appn.No.8906 of 2019)
...Defendants
PRAYER: Civil Suit filed under Order VII Rule 1 of CPC read with
Order IV Rule 1 of Original Side Rules seeking for the following reliefs:
a. To quit and deliver vacant possession of suit property bearing old
Door No.21, New No.33, Appu (Mudali) Street, Mylapore, Chennai-600
004, which is morefully described in the plaint schedule property as Item
No.1;
b. To direct the 3rd defendant to pay Liquidated Damages of a sum of
Rs.50,00,000/- (Rupees Fifty Lakhs Only) and /or such sum as quantified by
this Court to the Plaintiff, within a time as specified and deemed fit by this
Hon'ble Court;
c. To declare that the plaintiff is entitled to a equitable charge over
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C.S.No.345 of 2019
the Old Door No.21, New No.33, Appu (Mudali) Street, Mylapore,
Channai-600 004, which is morefully described in the plaint schedule
property as Item No.2, for the expenses incurred for improvements of the
suit property;
d. For a permanent injunction restraining the 3rd defendant herein or
their men, agents or servants or any other person or persons claiming
through them or authorized by them from demolishing or altering the
physical structure of the suit property bearing Old Door No.21, New No.33,
Appu (Mudali) Street, Mylapore, Chennai – 600 004, morefully described in
the Plaint schedule Item No.1 hereunder, except in accordance with law;
e. For permanent injunction restraining the 3rd defendant herein or
their men, agents or servants or any other person or persons claiming
through them or authorized by them from anyway alienating and /or
encumbering the suit property bearing Old Door No.21, New No.33, Appu
(Mudali) Street, Mylapore, Chennai – 600 004, morefully described in the
plaint schedule Item No.1, morefully described in the Plaint schedule
hereunder, except in accordance with law;
f. To grant such further or other reliefs and
g. Costs of the suit.
For Plaintiff : M/s.T.M.Naidu & Co.,
For Defendants : M/s.I.Kowser Missar for D3
Mr.R.Sankarasubbu for D4
D1 & D2 – No Appearance
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C.S.No.345 of 2019
JUDGMENT
The suit has been filed for the reliefs of delivery of vacant possession
of the suit property, liquidated damages from the third defendant,
declaration and for permanent injunction.
2. According to the plaintiff, originally the land and tiled building in
Ground, including 3 ½ feet vide passage bearing Old Door No.21, New
No.33, Appu Mudali Street, Mylaore, Chennai, bearing R.S.No.2599,
O.S.No.1674, measuring to an extent of 622.75 Sq.ft., with passage was
purchased by Mrs.Sulochana Ammal/2nd defendant from one
A.Balasundaram and 5 others by way of registered Sale Deed dated
04.02.1983 vide Doc.No.145/1983, Book 1 in SRO, Mylapore. The said
Sulochana Ammal had demolished the superstructure and put up
construction in the Ground Floor and First Floor measuring 500 Sq.ft., each
with R.C.C. Roofing and a shop measuring 3.6 x 13.3 Sq.ft., in the common
passage out of her own funds. The said Sulochana Ammal had settled the
premises in the Ground Floor having built up area of 500 Sq.ft., and 250
Sq.ft., being the rear portion in the Second Floor, with one shop in the
Ground Floor (West shop) measuring an extent of 3 ½ feet x 13.3 feet = 46
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C.S.No.345 of 2019
Sq.ft., along with half undivided right of share viz., 311.37 Sq.ft. out of
622.75 Sq.ft of land with common usage of passage and staircase in the
Ground Floor, First Floor and Second Floor in the above mentioned
property and also with common water and Sewage connection, common
usage of staircase and common overhead water tank in favour of her son/
first defendant by way of Settlement deed dated 05.09.2007 registered as
Doc.No.2186 of 2007, Book 1, SRO, Mylapore.
3. It is the case of the plaintiff that originally he was under tenancy of
Mrs.Sulochana Ammal during the period 1997-2002 in the Ground Floor
West shop and became acquainted with the 1st defendant since then. In the
year 2002, the plaintiff vacated the said tenanted premises with a view to
expand his business. The 1st defendant expressed his financial constraint
and requested the plaintiff herein to lend some money to meet out his family
and financial needs. As such, the 1st defendant was ready and willing to
mortgage the property which stands in his name, as stated supra which he
derived from his mother Sulochana Ammal vide a registered Settlement
Deed. The plaintiff in order to help the 1st defendant had offered a sum of
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C.S.No.345 of 2019
Rs.3,00,000/- and the 1st defendant along with his wife Mrs.Indrakumari @
N.Mercy Indira Kumari had executed a registered Simple Mortgage Deed
vide Doc.No.248 of 2015 in SRO, Mylapore in favour of the plaintiff herein
on 30.01.2015. After executing the Mortgage Deed, the 1st defendant
committed default and subsequently, along with his wife had approached
the plaintiff and expressed their inability to repay the loan and requested the
plaintiff to purchase the mortgaged property which was in their exclusive
possession. The plaintiff in order to recover the said money from the 1st
defendant, had sold all his family jewels and also raised loans from financial
institutions and individuals, obtained hand loans and with great difficulties,
arranged the total sale consideration and purchased the house property
mentioned in item No.1 to the schedule to the plaint from the 1 st and 2nd
defendants vide Sale deed dated 25.11.2016 before the SRO Mylapore,
which was registered as Doc.No./3729 of 2016.
4. It is also the case of the plaintiff that Sulochana Ammal herein has
also executed a Settlement Deed dated 23.12.2004, registered as Document
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C.S.No.345 of 2019
No.249/2004, SRO Mylapore, in favour of her second son namely
M.S.Baskar, the 3rd defendant with respect to land and building comprising
of First Floor having a built up area of 500 Sq.ft and 250 Sq.ft, being the
rear portion in the 2nd floor together with 311.37 Sq.ft undivided share in the
land bearing Old Door No.21, New No.33, Appu Street, Mylapore and since
then, the 3rd defendant was in absolute possession and enjoyment of the
portion conveyed to him. The property held by the 3rd defendant is
morefully described in Item No.2 of the schedule to the plaint.
5. That being so, the plaintiff invested huge amounts towards
habitable reconditioning and accordingly, renovation work was taking place
for immediate occupation of the plaintiff with his family. At that juncture,
the 3rd defendant initially threatened the plaintiff with dire consequences.
The 3rd defendant originally from the date of sale, had prevented the
statutory assessment and its officials to assess the suit premises. The main
gate would often be locked by the 3rd defendant. On a daily basis, the 3rd
defendant had resorted in abusive language. On 11.12.2016, the plaintiff
was constrained to tender a complaint with the Mylapore Police Station.
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C.S.No.345 of 2019
However, only after several months, the defendants were summoned and the
3rd defendant had advised the plaintiff not to live in the suit premises as his
associates who had many criminal cases against them, may commit any
offences. After hearing the statement of the 3rd defendant inside the police
station, the plaintiff was not convinced to stay in the suit premises. Utilising
the absence of the plaintiff, the 3rd defendant had broke open the lock and
key of the plaintiffs' suit premises and appears to have taken possession
since January, 2017 and have let the said suit premises for monthly rentals.
6. The further case of the plaintiff is that in the above factual
circumstances, the 3rd defendant's high handedness was communicated to
the 1st and 2nd defendants. However, the defendants had not permitted the
plaintiff in peaceful occupation of the suit premises. The 3rd defendant
having reported to the jurisdiction police and upon his representation, a
summon was caused to the plaintiff on 04.02.2019 and the plaintiff was
advised to obtain an order of recovery of possession from Court. The
plaintiff states that the 1st and 2nd defendants have handed over the vacant
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C.S.No.345 of 2019
possession, but, the 3rd defendant illegally trespassed and enjoying the suit
premises is the height of vandalism. The plaintiff has incurred a sum of
Rs.37 lakhs towards sale consideration and registration and further sum of
Rs.13 lakhs towards construction and renovation apart from a sum of Rs.15
lakhs paid towards interest for the loans received by the plaintiff. The act of
the 3rd defendant in preventing the plaintiff from enjoying the suit premises
is causing serious hardship and irreparable monetary loss. The plaintiff is
still with a tenanted premises and further rentals incurred therewith is
causing additional hardship as the suit premises was purchased for a
valuable consideration by him from the 1st defendant. The plaintiff has been
inflicted with damages which is irretrievable and cannot be compensated in
terms of money. The said damages caused, cannot be substituted as the
plaintiff has lost his livelihood, money, family and has been forced to
receive hand loans without his fault. Because of the above said illegal acts,
the health of the plaintiff got deteriorated which culminated into mental
stress due to which, the family of the plaintiff is suffering. Further, the 3rd
defendant having forced the plaintiff out of the suit premises has caused loss
of face and insult in the eyes of his family and the society. Hence, the
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plaintiff who is a contractor could not pursue his business and has faced
loss in his business. Thus in the above circumstances, the plaintiff
quantified a sum of Rs.50,00,000/- towards damages inflicted by the 3rd
defendant as stated herein above. The 3rd defendant is liable to pay a sum of
Rs.50,00,000/- as quantified damages to the plaintiff and the plaintiff is
entitled to the same.
7. It is seen that the plaintiff has filed the suit for delivery of vacant
possession of the property mentioned in item No.1 to the schedule to the
plaint and for other reliefs as stated above.
8. It is seen that the defendants 1 & 2 did not file their written
statements and written statements filed by the defendants 3 & 4 were
returned and not re-presented. However, mistakenly issues were framed and
the case was sent to the Master for recording evidence. Since as per the
endorsement of the Registry, the defendants have not filed/re-presented
written statements, they are set exparte.
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9. The plaintiff was examined himself as PW.1. He has also filed
Proof Affidavit as his chief examination in which, he has reiterated the
averment contained in the plaint and in order to substantiate his claim, he
has filed 14 documents which have been marked as Ex.P.1 to Ex.P14.
10. The specific case of the plaintiff is that originally he was the
tenant under the second defendant and the second defendant settled the
subject property in favour her son, the first defendant. The said settlement
deed has been marked as Ex.P1. Thereafter the first defendant availed loan
for a sum of Rs.3,00,000/- from the plaintiff mortgaging the subject
property. To prove the mortgage, the plaintiff has marked Ex.P2, which is
the mortgage deed executed by the first defendant in favour of the plaintiff.
Thereafter, since the first defendant could not repay the loan, had
approached the plaintiff and requested him to purchase the mortgaged
property, for which, the plaintiff mobilized the fund with great difficulty
and purchased the mortgaged property through sale deed dated 25.11.2016.
The plaintiff has marked the sale deed executed by the first and second
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defendants in favour of the plaintiff as Ex.P3.
11. Further, it is stated that the second defendant had settled the
properties in Item No.2 of the schedule in favour of her second son, the
third defendant. Since, the property is a two storied building, there is a
common main gate and it is stated that from the date of sale of property of
the first defendant to the plaintiff, the third defendant, on whose favour the
another portion of the pro perty was settled, creating hindrance to the
plaintiff from accessing his portion and the third defendant given life threat
to the plaintiff. Therefore the plaintiff has lodged a complaint on
11.12.2016 and he also marked the original complaint and copy of the CSR
as Ex.P4. To prove the fact that the property stands in the name of the
plaintiff, he also marked copy of the Property Tax receipts.
12. Further it is stated that due to the threat made by the third
defendant in the Police Station itself, the plaintiff was not staying in the suit
premises and utilising the absence of the plaintiff, the third defendant taken
possession and let the same for monthly rent. Because of the illegal acts of
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the third defendant, the plaintiff has incurred much loss financially as well
as physically. Therefore, he is constrained to file this suit seeking a sum of
Rs.50,00,000/- towards the damages.
13. The plaintiff has proved his claim by filing proof affidavit and
marking the documents in Exs.P1 to P14. Further, it is to be noted that to
disprove the claim of the plaintiff, the defendants did not appear and contest
the suit, even after giving sufficient opportunities. Therefore, the plaintiff is
entitled to get the decree as prayed for in the plaint.
14. Accordingly, the suit is decreed as prayed for with cost.
Consequently, connected applications, if any, are closed.
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Index : No
Internet : Yes
Speaking order/ Non-speaking order
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C.S.No.345 of 2019
List of the witnesses examined on the side of the plaintiff:
P.W.1 – K.Harikrishnan
List of Exhibits marked on the side of the plaintiff:
Exhibits Nature of the documents
P1 The certified copy of the settlement deed dated
05.09.2007 by 2nd defendant to the 1st defendant
P2 The certified copy of the mortgage deed dated
30.01.2015 executed by the 1st defendant to plaintiff
P3 The certified copy of the Sale Deed dated 25.11.2016
in favour of plaintiff
P4 The Original Complaint and CSR No.1505 of 2016
dated 11.12.2016
P5 The photocopy of the Assessment Order of Property
Tax in favour of plaintiff dated 15.06.2017
P6 The Original Property Tax Receipt dated 10/07/2018
P7 The Original Summon to plaintiff dated 04/02/2019
P8 The Original Notice dated 13.03.2019 by plaintiff
with acknowledgement
P9 The certified copy of the encumbrance certificate
dated 31.01.2019
P10 The Original Property Tax Receipt dated 19.03.2019
P11 The Original Water Tax Receipt (Series 6 Nos) dated
14.03.2019
P12 The photocopy of the plan of suit property
P13 The Original EB Card
P14 Photos with CD
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C.S.No.345 of 2019
P.VELMURUGAN,J.
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