Madras High Court

C.Ramalingam vs M/S.Central Bank Of India on 7 November, 2022

                                                           1               C.R.P.No.158 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                 DATED: 07 .11.2022
                                                          CORAM:
                                   THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
                                              C.R.P.(PD)No.158 of 2022
                                               in CMP.No.854 of 2022
                     1.C.Ramalingam
                     2.C.Sampath
                                                                                ...Petitioners/plaintiffs
                                                           Versus

                     M/s.Central Bank of India
                     Rep. By its Chief Manager,
                     Mylapore Branch,
                     New No.17, Old No.5, Luz Church Road,
                     Mylapore, Chennai.                                       ...Respondent


                     PRAYER: Civil Revision Petition filed under Section 115 of CPC, praying to
                     set aside the fair order and decreetal order dated 01.11.2021 passed in
                     N.T.A.No.1 of 2021, by the learned Chief Judge, Small Causes Court,
                     Chennai, reversing the order dated 30.09.2021, passed in Distress
                     Application No.1 of 2020 by the learned Registrar, Small Causes Court,
                     Chennai and dismiss NTA.No.1 of 2021 by allowing D.A.No.1 of 2020.


                                         For Petitioner        :Mr.N.Nagu Sah


                                         For Respondent        :Mr.J.M.Hariharan




https://www.mhc.tn.gov.in/judis
                                                         2                C.R.P.No.158 of 2022


                                                     O R D E R

The Civil Revision Petition is filed by plaintiffs in a distress

application, challenging the order passed by Chief Judge of Court of Small

Cause, Chennai in new trial Appeal 1 of 2021 by setting aside the order

passed by Registrar of the Small Causes Court, issuing distress warrant, in

favour of petitioners against the movable of the respondent for the value of

Rs.1,33,056/- towards arrears of rent from 01.09.2019 to 31.12.2019.

2. The petitioners herein filed distress application before the

Registrar of the Small Causes Court, Chennai, claiming that the respondent

was a tenant in respect of a non-residential building in the ground floor of

premises bearing New Door No.17, Old Door No.5, Luz Church Road,

Mylapore, Chennai – 4 and he committed default in payment of agreed

monthly rent of Rs.33,264/- per month from September 2019 to December

2019. Thus, the total arrears of rent was Rs.1,33,056/- towards arrears of rent

for four months and they prayed for issue of distress warrant against the

movables of the respondent described in the schedule to the petition.

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3. The respondent herein filed a counter affidavit wherein it had

averred that site of the building belonged to Sri Kabaleeswarar temple,

Mylapore it was stated that the large extent of 24 grounds and 1288 sq.ft of

land of which the building claimed by the petitioners was a portion, was let

out by said temple to one Soundararaja Iyengar. The said lease period had

expired on 05.01.1997. It was stated that the petitioners claimed right over a

small portion of the said site namely 1600 sq.ft through one Soundararaja

Iyengar. It was stated that the plaintiffs failed to renew the lease directly with

the temple and consequently temple had initiated proceedings for eviction

treating the petitioners and the respondent as trespassers. It was further

submitted that in view of imminent threat of eviction by the paramount title

holder namely the temple, the revision petitioners/plaintiffs have no right to

sustain the distress application against the respondent. The distress

application, having been filed by suppressing the above said material facts

was not maintainable as there is a dispute with regard to the entitlement of the

petitioners to claim rent. The Registrar of the Small Causes Court, Chennai,

issued distress warrant as prayed for as against the movables of the

respondent and aggrieved by the same, the respondent had filed new trial

application in NTA.No.1 of 2021, before the Chief Judge, Small Causes

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Court, Chennai, under Section 38 of The Presidency Small Cause Courts Act,

1882 (hereinafter referred to as 'the Act'). The Chief Judge, Small Causes

Court, Chennai, passed an order allowing the new trial application.

Aggrieved by the same, the petitioners/plaintiffs have come up before this

Court.

4. The learned counsel for the petitioners submitted that against

the order passed issuing distress warrant in an application moved under

Section 53 of the Act, remedy available to the aggrieved person is to invoke

Section 60 of the said Act by filing an application before the Registrar,

seeking discharge or suspension of the warrant or release of distrained

articles. In the case on hand, invoking Section 60 of the Act, the respondent

filed a new trial application under Section 36 r/w 38 of the said Act and the

same is not at all maintainable. Secondly, the learned counsel for the

petitioners submitted that even assuming the new trial application is

maintainable, the said application has to be heard by a Bench of two Judges

of the Small Causes Court and in the instant case, the certified copy issued by

Court of Small Causes indicate that the new trial application was heard by

only the Chief Judge of Small Causes Court and hence the same is liable to be

set aside.

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5. Per contra, the learned counsel for the respondent submitted

that the question of invoking Section 60 of Presidency Small Cause Courts

Act would arise only in cases where in pursuance of distress warrant issued

by Registrar, the movables were seized. But, in cases where the defendant

wants to challenge the order issuing the distress warrant before seizure of the

goods, the remedy available to the aggrieved parties is filing new trial

application under Section 36 r/w 38 of the Act. As far as second contention

of the learned counsel for the petitioners regarding constitution of the Court is

concerned, the learned counsel for the respondent submitted that the matter

was heard by a Bench consisting two learned Judges of Court of Small

Causes. However, it was signed only by the Chief Judge of Small Causes

Court. The learned counsel further submitted in case, this Court comes to the

conclusion that the order impugned in the revision is not sustainable on that

technical ground, the matter may be remitted back for consideration by Bench

of two learned Judges, Small Causes Court.

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6. Section 60 of Presidency of Small Cause Courts Act, reads as

follows:

“The debtor or any other person alleging himself to be the owner of any property seized under this Chapter, or the duly constituted attorney of such debtor or other person, may, at any time within five days from such seizure, apply to any Judge of the said Court to discharge or suspend the warrant, or to release a distrained article, and such Judge may discharge or suspend such warrant or release such article accordingly, upon such terms as he thinks just and any of the Judges of the said Court may in his discretion give reasonable time to the debtor to pay the rent due from him. Upon any such application, the costs attending it and attending the issue and execution of the warrant shall be in the discretion of the Judge, and shall be paid as he directs.”

7. The reading of the above provision would suggest that cause

of action for invoking Section 60 would arise only on seizure of property in

pursuance of distress warrant issued in an application filed under Section 53.

As far as the case on hand is concerned, admittedly, the movables of the

respondent have not been seized in pursuance of distress warrant issued by

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the Registrar, Court of Small Causes. Therefore, the contention made by the

learned counsel for the petitioners that remedy lies under Section 60 of the

Act, not under Section 36 r/w 38 of said Act cannot be countenanced.

8. Sections 36 and 38 of Presidency of Court of Small Cause Act read

as follows:

“Section 36 Decrees and orders of Registrar to be subject to new trial as if made by a Judge. Every decree and order made by the Registrar in any suit or proceeding shall be subject to the same provisions in regard to new trial as if made by a Judge of the Court.

Section 38 New trial of contested cases. - Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit (not being a decree passed under section 522 of the Code of Civil Procedure) order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.

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Explanation. - Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.”

9. Section 36 of the Presidency Small Cause Courts Act, 1882

makes it clear that every decree and order made by Registrar in any suit or

proceedings shall be subject to the same provisions, in regard to the new trial,

as if made by the Judge of Small Causes Court. In the case on hand, the

distress warrant was issued by Registrar in a proceedings initiated under

Section 53 of the Act. Admittedly, in pursuance of distress warrant, no

seizure has been made so far. Therefore, there is no cause of action to invoke

Section 60 of the Act. Hence, the remedy lies in invoking Section 36 r/w 38

of the Act. Hence, I hold that new trial application filed by the respondent is

maintainable.

10. The learned counsel for the petitioners relied upon the

judgment of this Court reported in 1988 (1) MLJ 122 in Sadhanandhan Vs

Leelavathy, for the proposition that only after seizure of the movable property

found in and upon the houses mentioned in the warrant, the affected persons

can come forward with an application either under Section 60 or 61 of the

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Act. As between the applicant and the debtor, the Act does not contemplate

adjudication of any disputed questions. Even as per the decision cited by the

learned counsel for the petitioners, question of invoking Section 60 of the Act

would arise only after seizure of movables. In the case on hand, admittedly,

the movables were not seized. At that stage, the respondent is not entitled to

invoke Section 60 of the Act. In view of the clear wordings in Section 36 that

every order made by Registrar in any proceedings shall be subject to the same

provisions, with regard to the new trial application, I hold that NTA.No.1 of

2021 filed by respondent is maintainable.

11. As per Order XLI Rule 3 of the Rules framed under the

Presidency Small Cause Courts Act, 1882, an application under Section 38 of

the Presidency Small Cause Courts Act, 1882 shall be heard by a Bench

consisting of atleast two Judges constituted by the Chief Judge or in his

absence by the next available Judge in rank and precedence. The said Rule

reads as follows:-

“3. Constitution of Court to hear such application.- The application shall be heard by a Bench consisting of at least two Judges constituted by the Chief Judge or in his absence by the next available Judge in rank and precedence.”

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In the case on hand, the learned counsel for the respondent submitted that the

matter was heard by Chief Judge, Court of Small Causes, along with another

learned Judge, but, it was signed only by Chief Judge of Court of Small

Causes. I have perused the original records received from the Court below.

12. There is nothing on record to suggest that the matter was

heard by Chief Judge of Court of Small causes along with another learned

Judge of Court of Small Causes. The impugned order was signed only by the

Chief Judge of Court of Small Causes. The preamble portion of the order

also would suggest chief Judge of the Court of Small Causes, alone heard the

matter. In these circumstances, the new trial application was not heard and

disposed of in accordance with the Order XLI Rule 3 of Rules framed under

the Presidency Small Cause Courts Act, 1882. Since the non-compliance of

said Rule going to the root of the Constitution of Court and Coram, I am

inclined to set aside the order passed in new trial application and remand the

matter back to the file of Court of Small Causes to re-hear the matter in the

light of Order XLI Rule 3 as indicated above.