Madras High Court
Mr.Masilamani Anbalagan vs Mrs.Agnees Nirmala on 7 August, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
O.S.A.No.215 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.08.2024
CORAM :
THE HON'BLE MR.JUSTICE S.S.SUNDAR
AND
THE HON'BLE MR.JUSTICE K.RAJASEKAR
O.S.A.No.215 of 2023
Mr.Masilamani Anbalagan .. Appellant
v.
1. Mrs.Agnees Nirmala
W/o late Mr.Sethuraman Vairavan
2. M/s Birmingham Industries Private Limited
rep by Vice President Mr.Saravanan
Flat No.A-3, 3rd Floor, Ramana Enclave
Door No.40/1, Madhavan Salai
Mahalingapuram, Nungambakkam
Chennai 600 034 .. Respondents
Memorandum of Grounds of Original Side Appeal under Order
XXXVI, Rule 9 of the Original Side Rules read with Clause 15 of the
Letters Patent, against the fair and decretal order of the learned single Judge
dated 07.08.2023 passed in C.S.SR.No.62688 of 2023 on the file of this
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O.S.A.No.215 of 2023
Court.
For Appellant :: Mr.G.Ramesh
For Respondents :: Mrs.Hema Sampath
Senior Counsel for
M/s K.Sridevi for R1
No appearance for R2
JUDGMENT
(Judgment of the Court was made by S.S.SUNDAR,J.)
This original side appeal is directed against the fair and decretal order
passed by the learned single Judge of this Court dated 07.08.2023, at the
stage of numbering the suit in C.S.SR.No.62688 of 2023.
2. Heard the learned counsel for the appellant and the learned Senior
Counsel for the first respondent.
3. The appellant before this Court filed a suit for recovery of money
claiming that a mortgage was created by deposit of title deeds. From the
reading of plaint, the plaint discloses the cause of action with specific
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averments that the suit property has been mortgaged by deposit of title
deeds. In the plaint, it is stated that the first defendant and her husband
have borrowed money on several occasions and the details are furnished. It
is also stated that the first defendant's husband, with the consent and request
of the first defendant, handed over all the title deeds of the suit property.
The plaintiff has also stated in the plaint that the first defendant and her
husband have not repaid the loan amount as promised. The plaintiff has
produced the original documents of title deeds along with the plaint to
prima facie show creation of an equitable mortgage supported by
documents.
4. When the unnumbered suit was listed before the learned single
Judge for maintainability on the objection raised by the Registry, the learned
Judge, after referring to several judgments, suspected the genuineness of the
contentions of plaintiff and held that the plaintiff has not established
whether the first defendant had an intention to create the equitable mortgage
by deposit of title deeds. After stating that there is no fundamental
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document to prove that there is an intention to create the equitable
mortgage, the learned Judge held that in all probabilities and possibilities,
the suit can be considered only as a suit for recovery of money and not a suit
on equitable mortgage and directed the plaintiff to amend the relief
accordingly to sustain the suit.
5. This Court is unable to sustain the order of the learned single
Judge, who decided the character of suit and the merits of the contentions of
plaintiff, even without a trial or an opportunity to the plaintiff to prove what
he has stated in the plaint. Therefore, the order of the learned single Judge
cannot be sustained in law. The plaintiff is entitled to a fair opportunity to
prove his case as pleaded in the plaint. Hence the order of the learned
single Judge is set aside. However, it is open to the defendants to raise all
objections while defending the suit in the written statement and to contest
the same on merits. Accordingly, with the liberty preserved to the
defendants above stated, the original side appeal is allowed. Registry is
directed to number the suit, if the papers are otherwise in order, as
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expeditiously as possible and list the case before the appropriate Court. No
order as to costs.
Index : yes/no (S.S.S.R.,J.) (K.R.S.,J.)
Neutral citation : yes/no 07.08.2024
ss
To
The Sub Assistant Registrar (O.S.)
High Court, Madras
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S.S.SUNDAR, J.
AND
K.RAJASEKAR,J.
ss
07.08.2024
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