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2007 DIGILAW 4068 (MAD)

Basanthmal Javaaji v. Shreya Nas Nahar

2007-12-07

R.BANUMATHI

body2007
Judgment : R. BANUMATHI, J. Sale of property under Section 69 of the Transfer of Property Act (for short “T.P. Act”) lead to number of litigations. 2. The plaintiff, who is the son of Mortgagor has filed the Suit for declaration that the auction sale held on 30.5.2006 in respect of the Suit property is null and void and for permanent injunction restraining the Defendants from taking over possession of the Suit property and other reliefs. 3. A. No. 1816 of 2007 has been filed by the third defendant-Auction Purchaser to reject the Plaint. For convenience, the Parties are referred in their original rank in the Suit. 4. The property-House and Ground Bearing New No. 39,Audiappa Naicken Street, Sowcarpet,Chennai-600 079, originally belonged to one Pattas Kaver, who was plaintiffs Grandmother. The said Pattas Kaver died on 2.2.1988. Pattas Kaver executed a Registered Will dated 30.4.1984, by which, she bequeathed her immovable property in favour of her daughter-in-law viz., plaintiffs Mother. The plaintiffs Mother and Father Dharamchand Nahar have jointly borrowed a sum of Rs. 40,00,000/- from the first defendant/ Muthialpet Benefit Fund and has executed a Registered Mortgage Deed dated 12.9.1993. 5. The case of the plaintiff is that in the said Will dated 30.4.1984 executed by Pattas Kaver, the plaintiff is also entitled to 1/6th share in the property. The said Will dated 30.4.1984 was also probated by the Court In O.P. No. 295 of 1990. The probate was revoked in another proceedings. The plaintiff seeks to set aside the Public Sale Auction held under Section 69 of T.P. Act on the ground that the auction conducted by the first respondent on 30.5.2006 is a collusive one. According to the applicant, on the date of auction, the third defendant-Auction Purchaser did not appear and the valuable property has been knocked away for a very low price and the Public Auction is vitiated by illegalities and irregularities and the plaintiff seeks for a declaration that the auction held on 30.5.2006 is null and void. 6. The third defendant, who is the Auction Purchaser has filed the Application to reject the Plaint. It is averred that the Plaint does not disclose the cause of action. In due exercise of the power of sale under Section 69 of T.P. Act., the Suit property was sold in the auction sale on 24.7.2006 for Rs. 6. The third defendant, who is the Auction Purchaser has filed the Application to reject the Plaint. It is averred that the Plaint does not disclose the cause of action. In due exercise of the power of sale under Section 69 of T.P. Act., the Suit property was sold in the auction sale on 24.7.2006 for Rs. 46,00,000/-, which was paid by the third defendant to the first defendant-Mortgagee in discharge of the Mortgage dues. The Sale Deed was executed and registered on 8.8.2006 by the first defendant-Mortgagee after notice to the Mortgagors. It is further averred that the plaintiff has filed W.P. No. 16033 of 2006 against Union of India- Mortgagee and the fourth defendant-Jal Shree Bhai/plaintiffs Mother. In that Writ Petition, W.P.M.P. No. 15739 of 2006 was filed seeking for an interim injunction restraining the auction sale, which was dismissed by this Court on 4.7.2006 observing that the plaintiff has no subsisting right in the Suit property. It is further averred that Dharamchand Nahar and his wife Jai Shree Bhai have executed the Mortgage in favour of the first defendant and the plaintiff, who is one of the sons of Dharamchand Nahar has no subsisting right in the property and hence, there is no cause of action for the plaintiff to challenge the auction sale held on 30.5.2006. 7. Taking me through number of earlier litigations, the learned counsel for the applicant/third defendant has submitted that keeping in view the earlier litigations the present Suit is clearly an abuse of process of Court. It was further submitted that in view of the observations in W.P.M.P. No. 15739 of 2006 in W.P. No. 16033 of 2006, the plaintiff having no subsisting legal right cannot maintain the Suit. The learned counsel for the third defendant/Auction Purchaser has further submitted that the Plaint does not disclose a cause of action and the Suit is not maintainable. It was further urged that the plaintiff is a stooge in the hands of the Mortgagors and the present Suit is clearly an abuse of process of Court and the Suit is liable to be rejected. 8. Submitting that valuable property has been sold for very low price, the learned counsel for the respondent/plaintiff has contended that the low consideration itself would be a ground for setting aside the sale. It was further alleged that litigations will have no impact upon the present Suit. 8. Submitting that valuable property has been sold for very low price, the learned counsel for the respondent/plaintiff has contended that the low consideration itself would be a ground for setting aside the sale. It was further alleged that litigations will have no impact upon the present Suit. Placing reliance upon Raptakos Brett & Co. Ltd. v. Ganesh Property AIR 1998 SC 3085 : (1998) 7 SCC 184 : 1999 (1) CTC 175 it was submitted that the averments in the Plaint alone are to be taken as it is. It was further urged that if the Plaint is to be rejected, doors to justice would be unjustly shut and the plaintiff would be deprived of the opportunity of putting forth his right in the Suit property. It was also urged that the Suit property being Joint Family Property, the plaintiffs right is to be decided and tested in the trial and the Suit cannot be rejected at the threshold. 9. A resume of the litigations over the Suit Mortgage property is necessitated before adverting to the contentious points raised by the Parties: (a) Admittedly, Dharamchand Nahar and fourth defendant-Jai Shree Bhai have borrowed Rs. 40,00,000/- by executing Mortgage Deed dated 20.9.1993, which was registered as Document No. 843 of 1993. As the Mortgage, dues were not paid by the Mortgagors, after issuing notice to the Mortgagors, the first defendant-Mortgagee/Benefit Fund, brought the Suit property for sale. At that stage, the Mortgagees filed a Suit for permanent injunction in O.S. No. 657 of 1999 on the file of City Civil Court, Madras and the said Suit was dismissed on 28.4.1999 granting nine months time to make payment of the Mortgage dues. But, the Mortgagors have failed to pay the Mortgage dues as undertaken and within the time granted by the Court. (b) Since, the Mortgagors have failed to pay the Mortgage dues, the first defendant-Mortgagee/Benefit fund, brought the Suit property for auction sale on 2.5.2001. Again the Mortgagors filed O.S. No. 1729 of 2000 on the file of City Civil Court, Madras and obtained interim orders and thereafter, the said Suit was dismissed. (c) O.S. No. 2821 of 2000 was filed by the present plaintiff and his brother Chandra- prakash for permanent injunction and the said Suit was also dismissed. Again the Mortgagors filed O.S. No. 1729 of 2000 on the file of City Civil Court, Madras and obtained interim orders and thereafter, the said Suit was dismissed. (c) O.S. No. 2821 of 2000 was filed by the present plaintiff and his brother Chandra- prakash for permanent injunction and the said Suit was also dismissed. (d) After issuing notice of demand, the first defendant-Mortgagee/ Benefit Fund had again brought the property for sale for recovering the dues and at that stage the Mortgagors have filed another Suit In O.S. No. 1773 of 2002 on the file of the City Civil Court, Madras and the said Suit was also dismissed. (e) Challenging the constitutional validity of Section 69 of T.P. Act, the present plaintiff has filed the W.P. No. 16033 of 2000. In that Writ Petition, W.P.M.P. No. 15739 of 2006 was filed and interim injunction was sought for, which was dismissed vacating the interim injunction on 4.7.2006 holding that a sum of Rs. 7,14,00,000/- and odd is due under the Mortgage and the present plaintiff is not the Mortgagor and that he is not having any subsisting legal right in the Suit property. W.A. No. 907 of 2006 filed by the respondent/plaintiff was also dismissed on 17.7.2006. 10. Thereafter, after due publicity, the first defendant-Mortgagee/Benefit Find brought the property for sale on 24.7.2006. The third defendant was declared as the highest bidder and he has paid the entire sale consideration of Rs. 46,00,000/-. The Sale Deed was also executed in favour of the Auction Purchaser on 8.8.2006 by the first defendant-Mortgagee/Benefit Fund. 11. I have carefully examined the rival contentions and anxiously considered the number of litigations between the parties. The following points arise for consideration: • (i) Whether the Suit is liable to be rejected as it does not disclose a cause of actione and • (ii) Whether the present Suit amounts to abuse of process of Court and liable to be rejected. 12. The Spectrum of Order 7Rule 11 C.P.C. has been considered in Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others AIR 2004 SC 1801 : (2004) 3 SCC 137 the Hon‘ble Supreme Court has held as follows: 10. In Saleem Bhai v. State of Maharashtra Saleem Bhai v. State of Maharashtra Saleem Bhai v. State of Maharashtra AIR 2003 SC 759 : (2003) 1 SCC 557 it was held with reference to Order 7Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the Plaint. The trial Court can exercise the power at any stage of the Suit - before registering the Plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order 7Rule 11 of the Code, the averments in the plaint are germane: the pleas taken by the Defendant in the written statement would be wholly irrelevant at that stage. 11. In I. T. C. Ltd. v. Debts Recovery Appellate Tribunal I. T. C. Ltd. v. Debts Recovery Appellate Tribunal I. T. C. Ltd. v. Debts Recovery Appellate Tribunal AIR 1998 SC 634 : (1998) 2 SCC 70 : (1998) 2 MLJ 79 it was held that the basic question to be decided while dealing with an Application filed under Order 7Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7Rule 11 of the Code. 12. The trial Court must remember that if on a meaningful and not formal reading of the Plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code T. Arivandandam v. T. V. Satyapal T. Arivandandam v. T. V. Satyapal T. Arivandandam v. T. V. Satyapal AIR 1977 SC 2421 : (1977) 4 SCC 467 . 13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. 13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill Roop Lal Sathi v. Nachhattar Singh Gill Roop Lal Sathi v. Nachhattar Singh Gill AIR 1982 SC 1559 : (1982) 3 SCC 487 only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. 14. In Raptakos Brett A Co. Ltd. v. Ganesh Property Raptakos Brett A Co. Ltd. v. Ganesh Property Raptakos Brett A Co. Ltd. v. Ganesh Property AIR 1998 SC 3085 : (1998) 7 SCC 184 it was observed that the averments in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 was applicable.” 13. It is to be considered, whether on a meaningful reading of the Plaint it is vexatious and meritless in the sense of not disclosing a clear right to sue. It is the duty of the Court under Order 7Rule 11 C.P.C. to examine the Plaint to ascertain, whether any cause of action has been pleaded and to determine whether the Plaint should be rejected. The question of rejection of the Plaint has to be decided on a mere perusal of the Plaint and not on the defence raised by the Defendants. In the light of the contentions, the Court has to find out from the allegations made in the Plaint itself and not beyond it as to whether a bogus, wholly vexatious or frivolous litigation has been initiated by the plaintiff or that the claim made by the plaintiff is a legally recognizable claim. 14. Admittedly, the property belonged to Pattas Kaver. Dharamchand Nahar is the adoptive son of Pattas Kaver. Pattas Kaver executed a Registered Will dated 30.4.1984 bequeathing the property in favour of the fourth defendant-Jai Shree Bhai, W/o. Dharamchand Nahar. Pattas Kaver appointed Dharamchand Nahar as the Executor of the Will, who has applied for grant of probate in O.P. No. 295 of 1990. On Application Nos. 3482 and 3483 of 2003 being filed, probate was revoked and T.O.S. is said to be pending. The plaintiff claims 1/6th share in the Suit property contending that it is the joint family property. On Application Nos. 3482 and 3483 of 2003 being filed, probate was revoked and T.O.S. is said to be pending. The plaintiff claims 1/6th share in the Suit property contending that it is the joint family property. The plaintiff had an opportunity of claiming such right even at the time while he filed the earlier Suit in O.S. No. 2821 of 2000. Having omitted to do so, the - plaintiff cannot now maintain a subsequent Suit. 15. The revocation of the Will and the pending of T.O.S. appear to be of no consequence. Even if the T.O.S. is pending, Title of the Parties cannot be determined. In the said Suit, where the main issue would be to determine the validity of the Will. In any event, the said Suit would be between the father and sons and would be of no consequence on the right of the Auction Purchaser or Mortgagee. Going by the Plaint averments, there is no basis for plaintiffs claim of right in the Suit property. While considering the Application under Order 7Rule 11 C.P.C., the Court is not required to take into consideration the defence set up by the defendant in his written statement. The question, whether the plaint discloses any cause of action is to be decided by looking at the averments contained in the Plaint itself and not the defence set up in the written statement. What has to be seen is whether or not a meaningful reading of the Plaint discloses a cause of action. While considering the application, the strength or weakness of the case of the plaintiff is not to be seen. 16. Even going by the Plaint averments, in my considered view the plaintiff has no semblance of right over the Suit property. The case is a clear case of the re-litigation on the same issue. As discussed earlier, the plaintiff, his Brother and Parents have filed Suits after Suits with a view to thwart the sale under Section 69 of T.P. Act and other proceedings. 17. It is fairly well settled that one of the most abuse of process of Court is re-litigation. It is an abuse of process of Court and contrary to justice and public policy for a party to re-agitate the same issue. 17. It is fairly well settled that one of the most abuse of process of Court is re-litigation. It is an abuse of process of Court and contrary to justice and public policy for a party to re-agitate the same issue. Re-agitation may or may not be barred by res judicata, but when the same issue is sought to be again re-agitated, it amounts to abuse of process of Court. Observing that abuse of process of Court would depend upon all relevant circumstances in K. K. Modi v. K. N. Modi AIR 1998 SC 1297 : (1998) 3 SCC 573 : (1998) Suppl MLJ 91 the Supreme Court has held as follows at p. 103 of MLJ: “ 44. One of the examples cited as an abuse of the process of the Court is re-litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of the Courts discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.” 18. Undoubtedly, it is a matter of the Courts discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.” 18. S. P. Chengalvaraya Naidu v. Jaagannath AIR 1994 SC 853 : (1994) 1 SCC 1 observing that when a case is based on falsehood the litigant could be summarily thrown out at any stage of the litigation, the Supreme Court held as follows: “The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whos case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.” 19. The plaintiff has earlier filed O.S. No. 2821 of 2000 along with his Brother Chandraprakash claiming right in the Suit property and the said Suit was dismissed. The plaintiff had also unsuccessfully challenged the validity of Section 69 of T.P. Act in W.P. No. 16033 of 2006 and in that W.P.M.P. No. 15739 of 2006 was filed seeking for an interim injunction, which was dismissed on 4.7.2006 observing that the plaintiff is not having subsisting legal right in the Suit property. The Writ Appeal filed by the plaintiff in W.A. No. 907 of 2006 was also dismissed by the First Bench on 17.7.2006. The present Suit filed in August 2006 is a clear case of relitigation and abuse of process of Court. 20. The Suit is also vexatious one in view of protection to the Auction Purchaser under Section 69(3) of T.P. Act. Section 69(3) T.P.Act protects the Title of the Auction Purchaser. The present Suit filed in August 2006 is a clear case of relitigation and abuse of process of Court. 20. The Suit is also vexatious one in view of protection to the Auction Purchaser under Section 69(3) of T.P. Act. Section 69(3) T.P.Act protects the Title of the Auction Purchaser. Section 69(3) reads as follows: “When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise Improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.” 21. The terms of Section 69(3) is clear and obvious and It protects the interest of the purchaser and confine the remedy of the Mortgagor or any aggrieved person to a Suit for damages. No irregularity or impropriety in the exercise of the power of sale would affect the Title of an innocent purchaser and the purchaser gets a good Title. 22. The only plea raised by the plaintiff is inadequacy of price. According to the plaintiff his valuable property has been sold for a very low price of Rs. 46,00,000/-, which would vitiate the sale. In the absence of fraud, irregularity alleged to have been committed in the exercise of power of sale, the Mortgagors only remedy is for damages. The plaintiff, who claims the share in the property cannot challenge the validity of the sale under Section 69 of T.P. Act. The plaintiff and Mortgagors appear to have filed number of Suits to thwart the sale and the subsequent proceedings. Once it is found that the intention of the Parties is only to re-agitate the same issue, Court has to view such conduct seriously and such action must be immediately stopped. The process of Court must be used bona fidely and properly and must not be abused. In a proper case, the Court will prevent the improper use of machinery and summarily prevent its machinery from being used as means of vexation and delaying tactics in the process of litigation. 23. The process of Court must be used bona fidely and properly and must not be abused. In a proper case, the Court will prevent the improper use of machinery and summarily prevent its machinery from being used as means of vexation and delaying tactics in the process of litigation. 23. In the result, • (i) A. No. 1816 of 2007 is allowed and the Plaint in C.S. No. 595 of 2006 is rejected; • (ii) Consequentially, O.A. No. 632 of 2006 is closed.