Madras High Court
B.V.V.Prasad vs Phoenix Arc Private Limited on 5 November, 2024
C.R.P.(PD)No.4104 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.11.2024
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.(PD)No.4104 of 2023 and
C.M.P.No.25052 of 2023
B.V.V.Prasad .. Petitioner
Vs
1. Phoenix ARC Private Limited,
3rd floor, Wallace Towers,
No.139/140/B/1, Crossing of Sahar Road
and Western Express Highway,
Vile Parle East, Mumbai-400 057.
(The 1st respondent substituted as per the
order of this Court dated 05.11.2024 in
C.M.P.No.21245 of 2024 in C.R.P.(PD)
No.4104 of 2023)
2. M/s. Virgo Properties Private Limited,
Represented by its Managing Director,
“Plaza House”, New No.5,
Old No.3, Thirumurthy Street,
T.Nagar, Chennai-600 017.
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1/8
C.R.P.(PD)No.4104 of 2023
3. M/s.Virgo Realtors Private Limited,
Represented by its Managing Director,
“Plaza House”, New No.5,
Old No.3, Thirumurthy Street,
T.Nagar, Chennai-600 017. .. Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the docket order dated 20.10.2022 in
O.S.No.1615 of 2022 on the file of the XXIII Assistant Judge, City Civil
Court at Chennai.
For Petitioner : Mr.V.T.Balaji
For R1 : Ms.Aishwarya S.Nathan
ORDER
This civil revision petition arises against the docket order dated
20.10.2022 passed by the learned XXIII Assistant Judge, City Civil
Court, Chennai.
2. The plaintiff is the civil revision petitioner. He presented
O.S.No.1615 of 2022 seeking for a declaration that the personal
guarantee executed by him on 23.06.2017 in favour of the 1st defendant is
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null and void and for a consequential injunction from enforcing the said
personal guarantee. The fact that a personal guarantee was executed in
favour of the 1st defendant is not in dispute. However, the same is sought
to be avoided on account of the plea that it is contrary to Section 10 of the
Indian Contract Act.
3. Pending the litigation, the 1st defendant had assigned the loan in
favour of one Phoenix ARC Private Limited, an Asset Recovery Company
under Section 3 of the SARFAESI Act. Since the assignment has been
made in favour of the aforesaid entity, the 1st defendant filed a memo,
before the Trial Court, bringing to its notice the factum of assignment. It
sought for an order to substitute its name with that of the 1 st defendant.
To the said memo, the order of the Trial Court records that the plaintiff
had no objection. It was ordered and a direction was given to the plaintiff
to amend the plaint.
4. Aggrieved by the said order dated 20.10.2022, the present
revision.
5. Heard Mr.V.T.Balaji for the civil revision petitioner and
Ms.Aishwarya S. Nathan for the substituted party.
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6. A perusal of the order shows that the plaintiff had no objection
to the memo that had been filed. After having tendered no objection, I
failed to understand how this revision is maintainable.
7. Mr.V.T.Balaji submits that he did not tender no objection to the
said memo. He states that he filed a counter to the said memo, yet the
Court has recorded as if he has tendered no objection. At the least a
century ago, the Privy Council has settled the position. It held matters of
judicial record are unquestionable. It opined “judgments cannot be
treated as mere counters in the game of litigation”. See, Somasundaram
v. Subramanian, AIR 1926 PC 136. It is the duty of a party in case a
wrong recording has been made by the Court to approach the very Court
and bring it to its notice that the recording is erroneous. See, Madhu
Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30. These
views of the Privy Council has found acceptance at the hands of the
Supreme Court in A.R.Antulay v. R.S.Nayak and another, (1982) 2
SCC 463.
8. Be that as it may, since Mr.V.T.Balaji has stated that he did not
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tender “no objection”, I decided to consider the memo on its merits. As
pointed out above, there is no dispute that a guarantee agreement was
executed by the plaintiff in favour of the 1st defendant on 23.06.2017. As
per the said agreement, he gave his personal guarantee for the loan
transaction entered into inter se the defendants. The original 1 st
defendant, in its wisdom, had executed an assignment deed in favour of
the substituted party on 29.03.2022. Therefore, whatever rights that
vested with the 1st defendant stood transferred in favour of the substituted
party.
9. Mr.V.T.Balaji urges that though the assignment agreement was
entered into on 29.03.2022 and it was presented for registration on
20.10.2022, it was finally registered only on 23.11.2023. The point that
he pressed forward is that, it is only on 23.11.2023 i.e. on completion of
registration that the rights which stood in favour of the 1st defendant got
assigned to the substituted party.
10. I am afraid that is not the position of law. The transfer of
interest of the 1st defendant happens on its execution and the process of
registration relates back to the date of execution. That is to say on
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23.11.2023, on completion of registration, it related back to the date of
execution of the document namely, 29.03.2022. This is clear from
Section 47 of the Registration Act. The assignment or transfer of title is
not dependent upon the ministerial act that is carried on by the
Sub-Registrar. A document is registered only for the purpose of Section
17 and Section 49 of the Registration Act. Therefore, the order of the
Trial Court, even on merits, cannot be found fault with.
11. Mr.V.T.Balaji pleads that the appropriate procedure that
should have been followed is to file an affidavit and petition to implead or
substitute the substituted party and it cannot be done by way of a memo.
12. A perusal of Order XXII Rule 10 of the Code of Civil
Procedure makes it clear that all that it requires, when there is an
assignment of right other than the death of a party, the Court only has to
grant leave to the party to continue the proceedings. Granting of leave
does not require a formal petition as submitted by Mr.V.T.Balaji. A
memo filed by a counsel has the same effect of an affidavit filed by a
party. See, Mangayarkarasi v. Suseela and others, (2000) 3 LW 896. In
this case, the memo merely brings certain facts to the notice of the Court,
which cannot be disputed inter se the parties.
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13. That being the position, the ordering of the memo by the
learned Judge bringing to its notice that there has been an assignment is
not in error. In any event, the procedure is only a handmaid of justice and
it cannot be used to stultify a right which is vested with the substituted
party by virtue of the deed of assignment dated 29.03.2022.
14. In the light of the above discussions, I find no merits in the
revision. Accordingly, the civil revision petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
05.11.2024
Index:Yes/No (2/2)
Speaking order/Non-speaking order
Neutral Citation:Yes/No
kj
To
XXIII Assistant Judge, City Civil Court at Chennai.
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V. LAKSHMINARAYANAN,J.
kj
C.R.P.(PD)No.4104 of 2023 and
05.11.2024
(2/2)
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