Madras High Court
P.S.Periyasamy vs S.Saravanan on 22 September, 2023
S.A.(MD).No.108 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.108 of 2017
P.S.Periyasamy ... Appellant/Appellant/Plaintiff
-vs-
S.Saravanan ... Respondent/Respondent/
Defendant
PRAYER: Second Appeal is filed under Section 100 of C.P.C, against the
judgment and decree dated 24.10.2016 made in A.S.No.24 of 2014 on the file
of the Additional Sub Court, Karur confirming the judgment and decree dated
08.09.2011 made in O.S.No.698 of 2008 on the file of the Additional District
Munsif Court, Karur.
For Appellant : Mr.P.Rajagopalan
For Respondent : Mr.K.Suresh
JUDGMENT
The present Second Appeal has been filed by the appellant under
Section 100 of C.P.C, against the judgment and decree dated 24.10.2016
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S.A.(MD).No.108 of 2017
made in A.S.No.24 of 2014 on the file of the Additional Sub Court, Karur
confirming the judgment and decree dated 08.09.2011 made in O.S.No.698 of
2008 on the file of the Additional District Munsif Court, Karur.
2. The appellant herein is the plaintiff and the respondent herein is the
defendant before the Court below.
3. For the sake of convenience, the parties will be referred to as per the
litigative status before the trial Court.
4. The brief averments made in the plaint, are as follows:
The plaintiff submits that he has purchased the suit property under a
registered sale deed, dated 22.11.1995. After that, he mortgage the said
property with the defendant by virtue of simple mortgage deed, dated
12.03.2007 in document No.447/2007. Based upon the mortgage, he
borrowed a sum of Rs.4,50,000/- (Rupees Four Lakhs and Fifty Thousand
only) from the defendant. It is the submission of the plaintiff that he has duly
repaid the principal and interest. After receipt of the principal and interest, the
defendant has executed a stamp receipt on 09.09.2008 and has also returned
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the original registered simple mortgage deed, dated 12.03.2007 to the
plaintiff. Though the original mortgage deed and the stamp receipt have been
marked before the Court below, after signing of the stamp receipt, when the
plaintiff has requested the defendant to register the same, he refused to do so.
It is also the submission of the plaintiff that on 24.09.2008 when he lastly
demanded the defendant to come to the Sub Register Office to register the
said receipt, the defendant refused to come to the Registrar Office. Therefore,
he came forward with the suit for mandatory injunction, directing the
defendant to register the discharge receipt, dated 09.09.2008.
5. The brief averments of the written statement are as follows:
The defendant stoutly disputed the very receipt of the principal and
interest of the mortgage amount. According to the defendant, he believed the
words of the plaintiff and went to the plaintiff premises where the plaintiff
has insisted the defendant to hand over the original deed and signed in the
receipt for the payment of the principal and interest. Hence, believing the
words of the plaintiff, he bonafidely handed over the document and signed in
the receipt. It is the further submission of the defendant that after receipt of
the original mortgage deed and also the original receipt, the plaintiff did not
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S.A.(MD).No.108 of 2017
pay the principal amount and interest and has intimidated him to come to the
Registrar Office. Suspecting the plaintiff's conduct, the defendant refused to
do so, and also requested the plaintiff to return the original mortgage deed
and signed receipts. But, the plaintiff refused to do so, and started threatening
the defendant. Hence, he preferred a complaint before the Karur Police
Station. He would further submit that the very framing of the suit is defective
and that the plaintiff has not paid the proper Court fee. Hence, he prayed to
dismiss the suit.
6. In his additional written statement, the defendant has also pleaded
that the very suit is liable to be dismissed, in view of Sections 36 and 37 of
the Registration Act.
7. Before the Court below, the plaintiff has examined three witnesses as
P.W.1 to PW.3, and marked four documents as Ex.P.1 to P.4.The defendant
himself has examined as D.W.1 and marked six documents as Ex.D.1 to
Ex.D.6.
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8. After hearing both sides and based upon the oral and documentary
evidence, the trial Court dismissed the suit with the finding that the very suit
is not maintainable, in view of existence of equally efficacious relief under
Section 36 of the Registration Act. However, the trial Court has found that the
plaintiff has paid principal and interest of the mortgage dated 12.03.2007.
9. Aggrieved with the same, the plaintiff has preferred the first appeal
in A.S.No.24 of 2014. However, the first appellate Court has also confirmed
the finding of the trial Court. Aggrieved with the same, the plaintiff is before
this Court by way of Second Appeal.
10. When the Second Appeal was admitted, on 27.09.2022, this Court
has framed the following substantial questions of law:
“i. Whether the Courts below having
given a finding that the appellant has
discharged the loan amount and the
respondent/ defendant has executed
discharge receipt is correct in dismissing the
suit on the ground that the appellant would
have approached the registration authorities
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under Section 36 of the Registration Act ?
ii. Whether the suit for mandatory
injunction as prayed for by the appellant /
plaintiff is barred under Section 9 of the Civil
Procedure Code?
iii. Whether the suit filed by the
appellant / plaintiff is not maintainable in
view of Section 36 of the Registration Act?.
11. The learned counsel for the plaintiff/appellant would contend that,
when the Court below has come to a conclusion that the plaintiff has
discharged the mortgage loan, the dismissal of the suit under Section 36 of
the Registration Act is contrary to law. It is also the submission of the learned
counsel for the appellant that Section 36 of the Registration Act could be
invoked only when the document is being presented before the Registrar
Office and would also submit that when the plaintiff has come forwarded with
the comprehensive suit with the larger relief, the very remedy under Section
36 of the Registration Act will not be bar to the plaintiff.
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12. The learned counsel for the plaintiff would also submit that, when
the defendant disputes the very receipt of the mortgage amount, there is a
duty cast upon the plaintiff to prove the payment and seek for a direction to
compel the defendant to come forward to the Registrar Office. Therefore, the
learned counsel for the plaintiff would submit that such relief could only be
obtained before the Civil Court. Therefore, contended that the concurrent
finding recorded by the trial Court as well as the first appellate Court is
erroneous and is liable to be set aside. He also relied upon the Hon'ble
Supreme Court judgment reported in AIR 1999 (SC) 2958 (Kalavakurti
Venkata Subbaiah Vs. Bala Gurappagari Guruvi Reddi) and this Court
judgment reported in (1982) 2 MLJ 41 (Ellammal Vs, Rangaswamy
Koundar).
13. Per contra, the learned counsel appearing for the respondent/
defendant would strenuously contend that the remedy under Section 36 of the
Registration Act is a bar to the suit, and also would submit that the very
prayer sought for by the plaintiff is contrary to the Specific Relief Act. The
learned counsel for the defendant further submits that the proper relief would
be a specific performance directing the defendant to register the discharge
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S.A.(MD).No.108 of 2017
receipt and it is also the further submission of the learned counsel for the
defendant that the very payment of Court fee is highly inadequate. Therefore,
the learned counsel would submit that the finding of the trial Court as well as
the first appellate Court is liable to be confirmed.
14. This Court has given it's anxious consideration to the submissions
of the learned counsel on either side.
15. While coming to the substantial questions of law, this Court has to
decide whether under Section 36 of the Registration Act is a bar to the instant
suit. For ready reference, this Court deems it appropriate to extract Section 36
of the Registration Act as hereunder:
“36. Procedure where appearance of executant
or witness is desired: - If any person presenting
any document for registration or claiming under
any document, which is capable of being so
presented, desires the appearance of any person
whose presence or testimony is necessary for the
registration of such document, the registering
officer may, in his discretion, call upon such
officer or Court as the [State Government]
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S.A.(MD).No.108 of 2017
directs in this behalf to issue a summons
requiring him to appear at the registration office,
either in person or by duly authorized agent, as in
the summons may be mentioned, and at a time
named therein.”
16. A plain reading of Section 36 of the Registration Act would only
give rights to the party only when the document is presented before the
Registrar Office. But, in this case, looking at the plaint pleadings, as well as
the written statement of the defendant, the defendant has stoutly denied the
very execution of disputed document qua the receipt of the mortgage amount
with interest as early as on 24.09.2008, which is not specifically denied in
written statement. Therefore, there is a duty cast upon the plaintiff to prove
before the Court of law that the mortgage amount has been fully discharged to
the defendant, and that there was due execution of receipt. Therefore, such
exercise could not be done before the Registrar Office. Apart from that it is
useful to refer Section 35 (3) (a), of Registration Act, the same would give
power to registering authority to refuse the registration.
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17. Therefore, this Court is of the view that the very remedy provided
under Section 36 of the Registration Act is a limited remedy and here, the
plaintiff wanted a larger relief of proving the discharge of mortgage debt and
due execution of the discharge receipt. Therefore, this Court is of the firm
view that Section 36 of the Registration Act cannot be construed as equally
efficacious relief.
18. As held in State of U.P. Vs. Tara Singh Jaiswala reported in
A.I.R.-2013-All-35, the word 'efficacious' means, which would put the
plaintiff in the same position in which he would have been, if he had not
asked for relief for injunction. Here, the main contention put forth by the
defendant is the existence of equally efficacious relief by way of the remedy
provided under Section 36 of Registration Act. Section 36 of the Registration
Act comes under part VII of Registration Act under the caption “Of enforcing
the appearance of executants and witnesses”. However, part VI of the
Registration Act deals about the presenting documents for registration. The
application of Section 36 of the Registration Act would fall on presentation of
the documents. The presentation of the documents has been dealt in part VI of
the Registration Act, in which Section 35 (3) (a) of the Registration Act has
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given an unfettered power to registering authority to refuse the registration if
any person denies its execution. For ready reference Section 35 (3) is
extracted herein below:
“(3) (a) If any person by whom the document
purports to be executed denies its execution, or
(B) if any such person appears to the
registering officer to be a minor, an idiot or a lunatic,
or
(C) if any person by whom the document
purports to be executed is dead, and his representative
or assign denies its execution, the registering officer
shall refuse to register the document as to the person so
denying, appearing or dead:
Provided that, where such officer is a Registrar,
he shall follow the procedure prescribed in Part XII:
[Provided further that the [State Government]
may, by notification in the [Official Gazette], declare
that any Sub-Registrar named in the notification shall,
in respect of documents the execution of which is
denied, be deemed to be a Registrar for the purposes of
this sub-section and of Part XII.]”
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19. If we look at the written statement filed by the defendant he has
only admitted his signature but dispute the execution and has contended about
the intimidation made by the plaintiff. Therefore, even when the document
presented before registering authority under Section 36 of Registration Act, in
view of specific denial in execution of document, naturally under Section 35
(3) (a) of the Registration Act, the registering authority would have definitely
refused the registration. Therefore, the presentation of the document could
only become redundant exercise. Therefore, this Court is of the view that the
remedy provided under Section 36 of Registration Act is not an equally
efficacious relief. Therefore, the instant suit is maintainable. Therefore, this
Court holds that the very suit is not hit by Section 9 of the Civil Procedure
Code.
20. The next point raised by the learned counsel for the defendant is
that the very suit ought to have been filed for specific performance and not
for a mandatory injunction. In this regard, this Court deems it appropriate to
extract Section 39 of the Specific Relief Act which is extracted hereunder:
39. Mandatory Injunction,- When, to prevent
the breach of an obligation, it is necessary to compel
the performance of certain acts which the Court is
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capable of enforcing, the Court may in its discretion
grant an injunction to prevent the breach complained
of, and also to compel performance of the requisite
Acts.
(Emphasis supplied by this Court)
21. On a harmonious reading of Section 39 of the Specific Relief Act, it
gives right to the parties that when there exists a breach of an obligation, and
when there is a requirement of compelling the performance of the requisite
Act, then a suit under Section 39 of the Specific Relief Act for mandatory
injunction is maintainable. Here, the plaintiff contends that, since he
discharged the mortgage deed, there is an obligation on the part of the
defendant to register the discharge receipt. Therefore, he is entitled to compel
the performance of requisite Acts of Registration of the receipt. Therefore,
this Court is respectfully disagree with the submission made by the learned
counsel for the defendant that the suit for the relief of mandatory injunction is
not maintainable.
22. At this juncture, this Court would like to refer the full Bench
judgment of the Hon'ble Allahabad High Court reported in AIR 1984 ALL 83
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(Khawaz Bux vs. Mirza Mohammad Ismail) in paragraph Nos.5, 27 and 30
are as follows:
5. When the appeal came up for hearing before
the Full Bench, the plaintiff applied for amendment of the
plaint. After hearing counsel the Bench permitted the plaint
as well as the written statement to be amended. As a result of
the amendment the plaintiff claimed the following reliefs:
"1. It may be declared that the vehicle No.
UPG-4091 covered by the stage carriage permit
No. 1116 belongs to him (the plaintiff);
2. A mandatory injunction may be issued
directing the defendant Mirza Mohammad Ismail
to execute necessary documents required to
effectuate the transfer of permit No. 1116 in favour
of the plaintiff:
...........
27. The agreement between the parties has been held
by the court below to be genuine and valid. This finding has
not been challenged. Clause 4 of the agreement specifically
provides that the defendant shall make and sign any
application for transfer of the above permit to the plaintiff
without any objection and that if he does not do so this
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agreement shall be evidence of his consent for transfer
under Section 59 (1) of the Motor Vehicles Act. The
agreement represented a completed contract between the
parties. The mention of the fact that permission
under Section 59 Motor Vehicles Act was required, did not
make an incomplete or contingent contract. A similar
position arose before the Supreme Court in Mrs. Chandnee
Vidya Vati Madden v. Dr. C.L. Katial, (AIR 1964 SC 978).
There with reference to the Privy Council decision in Motilal
v. Nanhelal, (AIR 1930 PC 287), the Supreme Court upheld
the view that an agreement which provides that the seller will
apply for permission to the relevant authority was not an
incomplete or contingent contract and that the condition that
he will apply for permission could be enforced. In that case
the seller had made the requisite application but had
subsequently-withdrawn it. The Supreme Court directed the
defendant to make the necessary application within a month.
Such an injunction could property be granted to the plaintiff-
appellant.
........
30. In the result, the appeal is allow ed. The decree of
the trial court is set aside. The suit is decreed for a
declaration that vehicle UPG-4091 covered by stage
carriage permit No. 1116 belongs to the plaintiff-appellant. A
mandatory injunction is issued directing the defendant-
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respondent to forthwith execute the necessary documents
required to effectuate the transfer of permit No. 1116 in
favour of the plaintiff-appellant.
Wherein the full Bench after referring the Supreme Court judgment has held
that the mandatory injunction can be given to execute the necessary
documents require to effectuate the transfer.
23. At this juncture, this Court deems it appropriate to discuss the
judgment referred to by the defendant. Wherein, the learned counsel for the
defendant relied upon the judgment of the Allahabad High Court reported in
AIR 2008 All 66 (Vijay Kumar Sharma vs. Devesh Behari Saxena) and also
unreported judgment of this Court in C.R.P(PD) No.1149 of 2019 dated
07.12.2021 (Loganathan Vs.Srinivasan). Though which the learned counsel
would submit that the very suit for mandatory injunction is not maintainable.
But, on harmonious reading of the above two reported judgments, it is seen
that those two cases are arising out of a sale agreement. Therefore, the same is
not applicable to the facts of the present case.
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24. The learned counsel for the plaintiff has also relied upon the
judgment of this Court reported in 1982 (2) MLJ 41 (Ellammal vs.
Rangaswamy Koundar and others) wherein the learned single Judge of this
Court has held that when a plaintiff seeks for a larger remedy provided under
the Specific Relief Act, bar under Registration Act, will in no way affect the
plaintiff to approach the civil Court. The learned Single Judge of this Court
has relied upon the judgment in (K.Veeran Ambalam Vs.Vellaiammal and
others., P.N.Ramaswami, J.) and held as follows:
“In K.Veeran Ambalam Vs.Vellaiammal and
others., P.N.Ramaswami, J., has, after an elaborate
consideration of all the decisions rendered by this
Court as well as other High Courts, ruled that the
lesser remedy provided for u/s.77, Registration Act,
cannot take away the larger remedy provided for under
the Specific Relief Act, that the Registration Act, does
not touch or affect the equitable jurisdiction possessed
by the civil Courts to pass a decree for specific
performance where circumstances exist entitling the
plaintiff to such a decree, and that if the remedy u/s.77
of the Registration Act, is not available and even if
available, is not effective and it is futile to initiate
proceedings under the Registration act, the vendee
may have his remedy for specific performance.
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25. The learned counsel for the appellant has also relied upon the
another judgment reported in 1999 AIR (SC) 2958 (Kalavakurti Venkata
Subbaiah Vs. Bala Gurappagari Guruvi Reddi). Wherein, it was held that
the remedy under Section 77 of the Registration Act is not a bar to approach
the Civil Court for the relief of specific performance, In which, the Hon'ble
Supreme Court held that the application under Section 77 of the Registration
Act would come only on the presentation of the documents. As rightly
contended by the learned counsel for the appellant herein, the documents
have not at all been presented, as the presentation is of no use in view of
Section 35 (3) (a) of the Registration Act and when the very payment towards
the receipt is under challenge. Therefore, as rightly contended by the learned
counsel for the plaintiff, this Court is of the view that the civil suit is the
ultimate remedy for the plaintiff.
26. It is pertinent to mention here that both the trial Court as well as the
first appellate Court has given a factual finding that the plaintiff has obtained
the discharge receipt only after the payment of mortgage debt. As such the
execution of the receipt is proved before the civil Court. Once the plaintiff
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has discharged mortgage, it is the obligation on the part of the defendant to
register the receipt, otherwise, encumbrance upon the property would
perpetually linger. Therefore, this Court is of the firm view that there is a
substantial question of law arising in this matter and the same is answered in
favour of the appellant.
27. In the result, the findings of the trial Court as well as the first
appellate Court are ordered to be set aside and the suit is decreed as prayed
for. Accordingly, this Second Appeal is allowed. There shall be no order as to
costs.
22.09.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1.The Additional Sub Court,
Karur.
2. The Additional District Munsif Court,
Karur.
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S.A.(MD).No.108 of 2017
C.KUMARAPPAN,J.
ebsi/Ls
S.A.(MD)No. 108 of 2017
22.09.2023
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