T. Krishnapandian v. The Madras Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd. & Another
2007-09-20
S.ASHOK KUMAR
body2007
DigiLaw.ai
Judgment :- This review petition has been filed as against the order dated 1. 2007 made in CRP PD.No.1805 of 2007 by this court. .2. The brief facts of the case is as follows:- .The revision petitioner sought for a loan of Rs.60 lakhs and after scrutiny he was sanctioned a sum of Rs.30 lakhs on 28. 1995. The petitioner who was in immediate requirement of the loan amount sought for the help of the respondent to get the loan amount partly registered and the balance to be released on equitable mortgage on deposit of title deeds so as to avoid obtaining certificate from the Income-tax authorities. The petitioner agreed to get the loan amount released under the scheme, by which the borrower can apply and get sanctioned for a particular amount and on such sanctioning he has to execute a mortgage deed for 25% of the loan amount sanctioned. For the balance amount, equitable mortgage has to be executed by the borrower. Accordingly, Rs.8 lakhs was obtained by the petitioner under registered mortgage deed and Rs.22 lakhs was received on equitable mortgage on interest at 20.4% p.a., and on a monthly sum of Rs.17,440/= for 100 months. The petitioner also agreed to pay default interest on the arrears of interest payable every month as per clause 7 of the Mortgage Deed. The petitioner failed to pay the monthly due amount as admitted in the mortgage deed and committed chronic default and the property was brought for auction through the second respondent. .3. The petitioner filed O.S.No.318/2000 before the III Assistant Judge, City Civil Court, Chennai for permanent injunction and filed I.A.NO:758/2000 and the said I.A.,was allowed on condition to pay Rs.60,000/= every month. Since the petitioner failed to comply with the said interim direction, the respondent filed I.A.No.242 of 2001 to vacate the said interim injunction and the same is still pending. In the meanwhile the respondent also filed I.A.NO:12367/2006 to appoint an Advocate Receiver to collect the rents and the trial court allowed the said I.A., Aggrieved of the same, the CRP has been preferred by the petitioner and this Court dismissed the CRP holding that having admitted the liability, the petitioner cannot stand in the way of appointment of Advocate Receiver. 4.
4. According to the Learned counsel for the petitioner, the very fact of wrong adjustments of the payments made by the petitioner was not brought to the notice of the court by him while deciding the CRP. Further, the petitioner is ready and willing to settle the entire loan amount by way of one time settlement with some concession with regard to interest and penal interest as determined by the Reserve Bank Of India as per the guidelines issued by it on 8. 2000 with regard to to recovery of dues relating to non performing assets of public sector banks. 5. On the other hand, the learned counsel appearing for the first respondent would submit that the request made now to settle the dues by way of one time settlement is untenable unless the entire dues payable under the terms of the mortgage deed are paid. The parties tot he mortgage deed are governed by the terms of contract which they agreed upon and it is binding on both the parties to the contract. .6. The learned counsel for the first respondent relied on the judgment of this court reported in 2004 (5) CTC 689 (TIIC Vs. Millennium Business Solutions), in support of his above contention, wherein this Court held as follows:- ."A loan is granted in terms of contract, and grant of one time settlement or rescheduling the loan is really a modification of the contract, which can only be done by mutual consent of the parties. The court cannot alter the terms of the contract". .7. Further, as rightly contended by the learned counsel for the first respondent, the petitioner has now come out with a new set of pleas which were not raised either in the counter filed before the trial court or in the grounds of CRP. There are catena of decision to the effect that new pleas which were not taken earlier shall not be allowed to be pleaded in the Review Petition. .8. In AIR 2003 SC 4622 (Union of India Vs. Paul Manickam), the Honble Supreme Court held as follows:- ."The High Court also transgressed its jurisdiction in entertaining the Review Petition with an entirely a new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual issues which were not disclosed or were concealed in the writ petition." 9.
Paul Manickam), the Honble Supreme Court held as follows:- ."The High Court also transgressed its jurisdiction in entertaining the Review Petition with an entirely a new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual issues which were not disclosed or were concealed in the writ petition." 9. In a similar case, in 1995 Supp (2) SCC 654, the Apex Court observed that the High Court was not empowered to review the judgment which had been passed on merits under Order 47, Rule 1 CPC and over turn the judgment which it had passed on merits. This was not permissible to the learned Judge at all in view of the strict terms of Order 47, Rule 1 CPC. 10. Further, as rightly contended by the learned counsel for the first respondent, comparing the Nidhi Companies with the Bank Notifications and other Notifications issued by the RBI for recovery of dues are not connected to the case and are not applicable to the loan borrowed by him which is only governed by the terms of the mortgage deed. Further, the mortgage also provides for appointment of an Advocate Receiver. 11. Further, according to the first respondent, the petitioner is due in a sum of Rs.1,74,56,619.85 as on July, 2007 for the two loan transactions which are public deposits no leniency can be shown to the petitioner. Further, the petitioner is not complying with the interim direction to deposit a sum of Rs.60,000/= per month as ordered in the I.A., filed by the petitioner himself. Further, it is also alleged that though the first respondent is ready to proceed with the suit filed by the petitioner, the petitioner/plaintiff is prolonging the suit without cross examining the respondents/defendants. 12. Considering the facts and circumstances of the above case, and following the decision of the Apex Court as well as of this Court, cited supra, and for the reasons stated above, I am of the view that the order passed by this court in CRP.PD.No:1805 of 2006 is not liable for review and therefore, the Review Petition and the Miscellaneous Petition are dismissed. No costs.