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1986 DIGILAW 13 (MAD)

Subbaraya Mudaliar v. Narayanaswami Mudaliar

1986-01-08

G.MAHESWARAN

body1986
ORDER G. Maheswaran, J. 1. The revision petitioner is the first defendant in O.S. No. 915 of 1970 on the file of the District Munsif of Gingee. A suit was filed by the first respondent-plaintiff against the first defendant-petitioner who is the Court auction-purchaser of the property and also against the morgagors, defendants 2 to 4, for recovery of a sum of Rs. 570 due on a mortgage. The revision petitioner's contentions are: (1) that he has paid a sum of Rs. 409; (2) that he has also given to the plaintiff 23 bags of cement valued at Rs. 345 and the value of the cement has to be given credit to; and (3) that the first defendant is entitled to the benefits of Act 13 of 1980. The trial Court rejected all these contentions and decreed the suit in full and in appeal the decree was confirmed. 2. Mr. Kadiravan, learned Counsel appearing for the revision petitioner invited my attention to the fact that the plaintiff has deposed in Court that a sum of Rs. 500 has been paid and that only a sum of Rs. 200 has been endorsed under Ex.A-2. But the learned Counsel appearing for the first respondent says that this statement must be a mistake or the statement must have been mistakenly recorded. This contention of the first respondent appears to be well-founded, because a suggestion is thrown to the plaintiff in the box that the payment of Rs. 200 and Rs. 409 should be given credit to from out of the principal amount thereby indicating that only a sum of Rs. 200 and Rs. 409 have been paid. The payment of Rs. 409 and Rs. 200 have been given credit to by the court below. 3. As regard the contention that he has delivered 23 bags of cement valued at Rs. 345, there is absolutely no evidence. Roth the courts concurrently found that this payment is not true. 4. The next contention which is of some importance is that the first defendant is entitled to the benefits of Act 13 of 1980. The first defendant is only a Court auction purchaser who has purchased the mortgaged property subject to the encumbrance. 345, there is absolutely no evidence. Roth the courts concurrently found that this payment is not true. 4. The next contention which is of some importance is that the first defendant is entitled to the benefits of Act 13 of 1980. The first defendant is only a Court auction purchaser who has purchased the mortgaged property subject to the encumbrance. The question whether the is entitled to the benefits of Act 13 of 1980 need not detain us any longer in view of the ruling of a Division Bench of this Court (of which I was a member), in Abraham v. State of Tamil Nadu . Section 12(i) of Act 13 of 1980 states that nothing in Act 13 of 1980 shall apply to the categories of debts enumerated under that section. One of the debts enumerated under Section 12(i) is the debt which represents the price of a property, whether moveable or immovable purchased by a debtor or any amount due under hire-purchase agreement. This is a provision which exempts the debt representing the portion of the purchase price of a property purchased by a debtor. The above decision held that the provision exempting the debt representing the portion of the purchase price of the property purchased by a debtor, is intended to see that the debtor does not make an unjust gain by withholding the price of the property purchased by him taking advantage of the provisions of the Act. In other words, the first defendant cannot take advantage of the provisions of Act 13 of 1980 ignoring the provisions of Section 12(1). On this view, this revision is dismissed. No costs.