Judgment :- 1. O.A. Nos.643 and 644 of 2006 are filed by the applicant/plaintiff to pass an order of interim injunction restraining the respondents from disturbing and interfering with the peaceful possession of the applicant in the suit property and from alienating, leasing or dealing in any manner of the suit property. A. No. 2946 of 2006 is filed by the 2nd defendant to vacate the order of interim injunction granted on 17.08.2006 in O.A. No.644 of 2006. 2. The above Original Applications are filed by the mortgagor of a property situate in No. 76 (Old No.11-B), Eldams Road, Teynampet, Chennai-18, which was constructed in ground plus two floors with plinth area of 2550 sq.ft. The remedy sought for is to grant interim injunction against alienation and any encumbrance in the above property. The 1st respondent is a Nidhi and the 2nd respondent is the purchaser in the public auction held on 27.03.2003. The mortgage was dated 01.08.1994 for a sum of Rs.20 lakhs upon the above property, which was obtained by the applicant, by a Partition Deed of the year 1985 with his parents and co­borns. Excepting a sum of Rs.2,22,381/-, the debt remains unpaid and so the mortgagee has brought it in the public suction, wherein 2nd respondent, one of the subscribers of 1st respondent, had purchased it for a sum of Rs.35 lakhs. On payment of the balance of Rs.21.50 lakhs, after making initial payment of Rs.13.50 lakhs by 2nd respondent, the sale was confirmed on 21.07.2004 and sale deed was also executed in his favour. This sale was resisted by applicant/plaintiff as devoid of statutory notice under Section 69 of Transfer of Property Act (hereinafter referred to as "the Act") and so, it was contended that the sale is bad. 3. Mr. P.L. Narayanan, learned Senior Counsel for the respondents submitted that in spite of notice sent to the applicant/mortgagor, as it went `unclaimed', publication was made in a Tamil daily DHINA THANTHI dated 23.03.2003 and there was also a publication in the office of the auctioneer and so, it was submitted that the auction was held only in accordance with law. It was, further submitted that the 1st respondent mortgagor had already spent Rs.6,83,009/- for payment of various taxes due upon the building. 4. It was, further submitted that the 1st respondent mortgagor had already spent Rs.6,83,009/- for payment of various taxes due upon the building. 4. Reliance was also placed upon The Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd, by its Secretary K. Chinnathambi Pillai v. Kuddus Mean Sahib and others, 1926 LW 476 , wherein it was mentioned at page 491 as follows: "I am inclined to think that the argument is correct that in cases falling under Section 69, if interest amounting at least to Rs.500 is in arrears and unpaid for three months the mortgagee if he has got the power of sale under the mortgage, can exercise the power without notice to the mortgagor". 5. Mr. P.L. Narayanan, learned Senior Counsel also drew my attention to Section 69(2)(a) and (2)(b) of the Act. The Terminology in Section 69(2) beginning as "No such power shall be exercised unless and until" is common to both sub-sections (2)(a) and (2)(b). If we read sub-section (2)(b) with such common words, it would mean that, no such power of sale shall be exercised by the mortgagee unless and until some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due. There was no contemplation of notice in writing to be issued to the mortgagor, which will only be applicable to Section 69(2)(a) of the Act, regarding non-payment of principal and interest of mortgage amount, for a period of three months. But it is to be mentioned that both in the above cited case as well as in this case, it is nobody's case that interest on mortgage amount alone was in arrears and that power of sale was exercised only therefor. That is why, it was observed in the above cited case as follows: "Now, in this case, reading Section 69 with the Articles of Association and the mortgage deed, I am clearly of opinion that before the sale is held for the purpose of recovering principal and interest due on the mortgage, notice has to be given and the learned Judge was right in coming to the conclusion that the want of notice was an irregularity because the fund did not act in a manner that would entitle them to have sold the property right". 6. 6. That is why in the above case law it was observed as below at page 483; "It is unnecessary in this case to decide the wider question raised whether in case of interest alone being due notice is necessary". When principal also was due, even in that case law, it was clearly mentioned that notice under Section 69 is necessary. As mentioned supra, here also it is nobody's case that power of sale was exercised only for interest that was due. If that be so, the entire property could not have been sold for a sum of Rs.35 lakhs, as it may not represent the amount of interest alone (principal mortgage amount in this case is Rs.20 lakhs). That apart similar to certain Articles of Association in that case law, here also clause 7(iii) of the Hypothecation Deed necessitates a notice to mortgagor before ever power of sale of mortgagee is exercised. The fact remains that no service of such statutory notice under Section 69(2) of the Act was ever made upon the applicant/plaintiff/mortgagor. 7. Again to say that notice was unclaimed by the mortgagor is not an answer for compliance of Section 69(2) because the statutory obligation on the part of mortgagee is to serve such notice upon the mortgagor. Further, the copy of unclaimed endorsement was found only for the earlier auction sale of the year 2001-2002. Similarly, the copies of publication in DHINA THANTHI dated 23.03.2003 may not also amount to service of notice as required under Section 69(2) of the Act. It has been held in Babamiya v. Jehangir, AIR 1941 Born. 339 that advertisement of sale of mortgaged property in newspaper is not sufficient intimation. In that case, it was held as follows: "The notice required by Section 69(2)(a) is not only necessary but is imperative, and even the period of three months cannot be curtailed by agreement of the parties there must be an appropriate action by the mortgagee such as a notice of demand or some other action indicating to the mortgagor the exercise of that option so as to enable the mortgagor to realise his position and save his equity of redemption if possible .......... The advertisement of sale of mortgaged property in the newspaper is not a sufficient intimation to the mortgagor ". The advertisement of sale of mortgaged property in the newspaper is not a sufficient intimation to the mortgagor ". Even the publication in the auctioneering office contained no required particulars excepting mentioning that other particulars will be made available in the office of the auctioneering company. 8. Mr. Sivam Sivanandaraj, learned counsel appearing for the applicant/plaintiff relied upon Ramu Mudaliar v. Kanthamani Nataraian and another, 1979 MLJ 346 and submitted that as found in Babamiya v. Jehangir, AIR 1941 Born. 339 notice under Section 69 of the Act is imperative and that the service of the same notice is also to be effectively made. While dealing with notice under Section 106 of the Act, the following was observed in that case: "The different mode of service permitted by Section 106 had been enacted only to the end that the landlord could choose the most appropriate and the best practicable means of getting at his tenant provisions were meant to ensure effective service and not to countenance non-service". 9. Similarly, here also, it must be proved that the notice was effectively served upon the mortgagor. Even for refusal as unclaimed, as stated in Jitendra Barai v. Chairman, Regional Transport Authority, Bolongir and another, AIR 1971 Ori. 120 , it should be proved by the person who sent the notice. But no such endeavour was made in proof of the same. The importance of service of notice was very much mentioned in Kamalambal v. M. Purushotam Naidu, AIR 1934 Mad. 644 by stating that the power of sale was not to be exercised unless and until statutory notice was served. 10. It was so also observed in R.S. Nadar v. Indian Bank Ltd, Madras, AIR 1967 SC 1296 wherein it was held as follows: "Sub-section (2) of Section 69 lays down inter alia that no such power shall be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor .... and default has been made in payment of the principal money or of part thereof, for three months after such service. The language of this sub-section is clear and unambiguous. The Section lays down in no uncertain terms that the requisite notice may be given to the mortgagor ………. and default has been made in payment of the principal money or of part thereof, for three months after such service. The language of this sub-section is clear and unambiguous. The Section lays down in no uncertain terms that the requisite notice may be given to the mortgagor ………. It may be hard on a person in the position of a mortgagor to get no notice under this Section if he comes to learn that the property has been sold without any notice to him. But if there has been no fraud or collusion in the matter, he has no cause for complaint". 11. In Pichai Moideen Rowther v. Chathurbuja Das Kushal Das & Sons, AIR 1933 Mad. 736 , it was held as follows: "A mortgagee with a power of sale is strictly speaking, not a trustee of the power of sale. It is a power given to him for his own benefit, to enable him the better, to realise his mortgage debt. If he exercises it bona fide for that purpose, without corruption or collusion with the purchaser, the Court will not interfere, even through the sale be very disadvantageous, unless indeed the price is so low as in itself to be evidence of fraud". 12. In this case, the valuation of the property bearing door No.76 (old No.11-B), Eldams Road, Teynampet, Chennai-18, with ground plus two floors in a plinth area of 2550 sq.ft. was at Rs.1,30,40000/- valid in a detailed valuation report dated 27.07.2006 by JMR Consultants, Chartered Engineers and Registered Valuers. That contains all particulars of method of valuation, extent of land, process of valuation, building and its features along with a conclusion that value of the land and building respectively amounting to Rs.1,06,25,000/- and Rs.24,15,000/- making a total of Rs.1,30,40,000/-, But the sale was made in March, 2003 only for Rs.35 lakhs, which is obviously for .a lower price and without notice to the mortgagor. So, there is serious prejudice caused to the applicant/mortgagor. 13. The second defendant has filed a Suit in C.S. No.919 of 2004 for possession from the applicant/plaintiff, who is presumably in possession. If the sale D.2 is bad, the applicant's possession is to be protected. 14. The last contention made on the side of the respondents/defendants that as per Section 69(3) of the Act, the suit is not maintainable, is also unacceptable. If the sale D.2 is bad, the applicant's possession is to be protected. 14. The last contention made on the side of the respondents/defendants that as per Section 69(3) of the Act, the suit is not maintainable, is also unacceptable. What Section 69(3) provides is that the title of the purchaser shall not be impeachable on the ground, (i) that no case had arisen to authorise the sale; or (ii) that due notice was not given; or, (iii) that the power was otherwise improperly and irregularly exercise and if the owner of the property is damnified by such unauthorised, improper or irregular exercise of power, he shall have remedy in damages; but all these will be applicable only when a sale has been made in professed exercise of such a power of sale, as expressed in the Deed of Mortgage and as contemplated in Section 69(1)(b) of the Act; but according to clause 7(iii) of the Hypothecation Deed, the power of sale without the intervention of the Court was conferred on the mortgagee only upon mortgagor failing to pay within three months of the date of service of the aforesaid notice. Therefore, the power of sale, as mentioned in Section 69(1)(b) of the Act, is clothed upon the mortgagee by the Hypothecation Deed only upon issuance of notice. This notice contemplated in Bilateral Agreement is different from statutory notice. De hors the statutory notice, the power of sale will be available for mortgagee only if there is a notice as expressed in the deed of Mortgage. 15. Even leaving the point of failure of notice to call the sale as was made in professed exercise of such notice of sale, there should be a procedure in the process of auction and reasonability for the price it was sold and both of which are lacking in the case, inasmuch as the price of the property is proved to be very low and that procedure of auction is not proper inasmuch as it contains no proper descriptions of the extent of the property as well as there is no mention made in the advertisement about the value of the property and other particulars. 16. For the reasons stated above, O.A. No.643 and 644 of 2006 are allowed by granting the relief mentioned in the Applications. Consequently, A. No.2946 of 2006 is dismissed.