Madras High Court
A.Govindaraj vs M.Krishnamoorthy on 27 June, 2023
S.A.(MD)No.54 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.54 of 2017
and
C.M.P.(MD)No.1157 of 2017
1.A.Govindaraj
2.P.Gopu
3.P.Mohan ... Appellants
/Vs./
1.M.Krishnamoorthy
2.G.M.G.Engineering Industries,
Rep. by its Managing Partner.
3.M/s.Lakshmi Industrial Works,
Rep. by its Managing Partner.
4.M/s.Lakshmi Engineer Works,
Rep. by its Managing Partner.
1/12
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S.A.(MD)No.54 of 2017
5.U.Krishnamoorthy
6.M.Periyakaruppan
7.Punjab National Bank,
Rep. by its Manager.
8.The Authorized Officer,
Punjab National Bank,
Regional Office,
Thiruverumbur,
Trichy – 620 014. ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 15.02.2016 made in
A.S.No.25 of 2014 on the file of the II Additional District and Sessions
Judge, Thanjavur, confirming the judgment and decree dated 06.12.2013
made in O.S.No.47 of 2011 on the file of the Principal Subordinate
Judge, Thanjavur.
2/12
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S.A.(MD)No.54 of 2017
For Appellants : Mr.N.Satheesh Kumar
For Respondents : Mr.A.Senthil Kumar (R1)
Mr.J.Jeyakumaran (R3 & R4)
No appearance (R6 to R8)
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The defendants 4 to 6 in the suit in
O.S.No.47 of 2011 on the file of the Principal Subordinate Judge,
Thanjavur are the appellants herein. The first respondent is the plaintiff
in the suit and the remaining respondents are the other defendants in the
said suit. In the forthcoming paragraphs, the parties are described as per
their litigative status in the suit.
2. The suit was filed for permanent injunction as well as for
damages by the plaintiff against the defendants on the ground that the
defendants, deliberately knowing fully well that the suit schedule
property belongs to the plaintiff, had mortgaged the same to the ninth
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S.A.(MD)No.54 of 2017
defendant bank claiming that the suit schedule property belongs to the
defendants and not to the plaintiff.
3. As seen from the written statement filed by the defendants, they
claimed that adjoining lands to the suit schedule property are owned by
them and since they were owners of the said lands, they had mortgaged
the suit schedule property along with other properties with the ninth
defendant bank and availed financial facilities.
4. A categorical stand was taken by the plaintiff as seen from his
plaint that he is the absolute owner of the suit schedule property, having
purchased the same under a sale deed dated 13.07.2005 (Ex.A1) and
exchange deed dated 13.07.2005 (Ex.A2).
5. Based on the pleadings of the respective parties, the trial Court
framed the following issues:
(a) Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for?;
(b) Whether the plaintiff is entitled to the relief of mandatory
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S.A.(MD)No.54 of 2017
injunction as prayed for?;
(c) Whether the plaintiff is entitled to get compensation of
Rs.1,00,000/- as prayed for?;
(d) Whether the jurisdiction of this Court has been ousted by the
provisions of the SARFAESI Act?; and
(e) To what other reliefs, the plaintiff is entitled?.
6. The trial Court, namely, the Principal Sub Court, Thanjavur, by
its judgment and decree dated 06.12.2013 passed in O.S.No.47 of 2011
partly decreed the suit by granting the relief of permanent injunction in
favour of the plaintiff as prayed for in the plaint and also awarded
compensation of Rs.50,000/- payable by the defendants 4 to 6 and
another sum of Rs.50,000/- payable by the 9th defendant bank.
7. The trial Court, while partly decreeing the suit in favour of the
plaintiff, has given the following findings:
(a) Ex.A1 is the certified copy of the registered sale deed dated
13.07.2005 standing in the name of the plaintiff executed by the
defendants 4 to 6 in his favour with regard to S.No.155/2B measuring to
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S.A.(MD)No.54 of 2017
an extent of 6 cents, 155/8 measuring to an extent of 7 cents, 155/7
measuring to an extent of 6 cents, all put together total extent of 19 cents;
(b) Ex.A2 is the registered exchange deed executed by the plaintiff
entered into between the plaintiff and the defendants 4 to 6, wherein the
plaintiff was allotted with the property situated in S.No.155/1 measuring
to an extent of 19 cents, 169/1 measuring to an extent of 1.16 acres,
117/1A measuring to an extent of 1.69 acres, 117/B measuing to an
extent of 35 cents, all put together total extent of 3.39 acres.
(c) No documentary evidence has been produced by the defendants
to prove that they are entitled to the suit schedule property. Even in the
written statement, they have only pleaded that since they were entitled
for the neighbouring lands, they had mortgaged the property belonging to
the plaintiff also.
8. The only document filed by the defendants before the trial
Court is the legal opinion with regard to title dated 06.10.2005 and
07.10.2005, which were marked as Exs.B1 to B5 and On the side of the
defendants, two witnesses were examined, namely, the sixth defendant as
D.W.1 and Sridhar as D.W.2. However, on the side of the plaintiff, 11
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S.A.(MD)No.54 of 2017
documents were marked, which were marked as Exs.A1 to A11, which
include the title deeds standing in the name of the plaintiff as well as the
revenue records standing in his name. On the side of the plaintiff, two
witnesses were examined, namely, the plaintiff himself as P.W.1 and
K.Elangovan as P.W.2.
9. The plaintiff has proved that he is the absolute owner of the suit
schedule property and the defendants are not entitled to create mortgage
over the same without plaintiff's concurrence. Based on the aforesaid
findings, the trial Court had partly decreed the suit by granting the relief
of permanent injunction as prayed for by the plaintiff in the suit and has
awarded the compensation amount totalling to Rs.1,00,000/- in favour of
the plaintiff, since the defendants had deliberately mortgaged the suit
schedule property, which was absolutely belonging to the plaintiff.
10. This Court does not find any infirmity in the findings of the
Courts below. As seen from the contentions of the appellants before the
lower appellate Court, their only grievance was with regard to quantum
of compensation awarded to the plaintiff at Rs.1,00,000/-. It is also
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S.A.(MD)No.54 of 2017
brought to the notice of this Court by both the counsels that the loan
availed by the defendants by mortgaging the plaintiff's property without
his concurrence was also discharged subsequently with the bank, during
the pendency of the first appeals, after passing of the judgment and
decree by the trial Court.
11. The learned counsel appearing for the appellants would
contend that there are other suits pending between the parties, in which a
claim has been made by the appellants / defendants against the plaintiff
for recovery of certain sums of money for other transactions. This Court
after perusing the pleadings as well as oral and documentary evidence
available on record, notices that such a plea was never taken by the
appellants before the Courts below. At the second appeal stage, the plea
taken by the appellants as stated supra cannot be accepted by this Court
and it has to be rejected. No counter claim was also filed by the
appellants before the trial Court with regard to their claim that the
plaintiff owes money with regard to other transactions between them.
The quantum of compensation of Rs.1,00,000/- awarded by the Courts
below in favour of the plaintiff cannot be considered to be excessive,
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S.A.(MD)No.54 of 2017
considering the fact that it has been conclusively proved by the plaintiff
that his property was deliberately and illegally mortgaged without his
knowledge by the defendants, who had availed financial facilities from a
bank.
12. Obviously, a person whose property has been mortgaged
without his knowledge by another third party would have suffered mental
agony on account of the illegal mortgage. The Courts below, only after
giving due consideration to the same, has awarded a compensation of
Rs.50,000/- payable by the defendants 4 to 6 in the suit and another sum
of Rs.50,000/- payable by the 9th defendant bank in the suit in favour of
the plaintiff.
13. This Court does not find any infirmity with the findings of the
trial Court with regard to the quantum of compensation awarded to the
plaintiff. The other findings of the trial Court are based only on the oral
and documentary evidence available on record. The relief of permanent
injunction has also been rightly granted by the trial Court, as the plaintiff
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S.A.(MD)No.54 of 2017
is the absolute owner of the suit schedule property. As seen from the
documents, which were marked as exhibits on his side, namely, Exs.A1
to A11, which includes the revenue records in the form of pattas standing
in his name, the lower appellate Court, namely, II Additional District and
Sessions Judge, Thanjavur, in the appeals filed by the defendants 1 to 8
and 9 in A.S.Nos.24 and 25 of 2014 respectively has rightly confirmed
the findings of the trial Court by dismissing the first appeals.
14. The issues raised by the appellants / defendants in the grounds
of this second appeal have been rightly considered by the Courts below
by holding that the plaintiff is entitled for damages for the mental agony
suffered by him to the extent of Rs.1,00,000/- on account of the illegal
mortgage created over his property by the defendants without his
consent. The relief of permanent injunction has also been rightly granted
by the Courts below in favour of the plaintiff only based on the oral and
documentary evidence available on record. There are no infirmities in
the findings of the Courts below. There are no debatable issues of fact or
law involved for further consideration by this Court under Section 100 of
CPC.
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S.A.(MD)No.54 of 2017
15. In the result, there is no merit in this second appeal.
Accordingly, this Second Appeal is dismissed. There shall be no order as
to costs. Consequently, connected Miscellaneous Petition is closed.
27.06.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.54 of 2017
ABDUL QUDDHOSE, J.
Sm
TO:
1.The II Additional District and Sessions Judge, Thanjavur.
2.The Principal Subordinate Judge, Thanjavur.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.54 of 2017
Dated:
27.06.2023
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