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2007 DIGILAW 988 (MAD)

P. Rajendran v. S. Ammaniammal & Others

2007-03-20

S.ASHOK KUMAR

body2007
Judgment :- Civil Revision Petition is filed under Article 227 of the Constitution of India against the judgment dated 22. 2007, made in CMA.No.35 of 2006 by the learned Principal Sub Judge, Erode, setting aside the fair and decretal order of injunction dated 8. 2006 made in I.A.No.444 of 2006 in O.S.No:135 of 2006 by the District Munsif-cum Judicial Magistrate, Perundurai. .2. The brief facts of the case are as follows:- .The suit has been filed by the revision petitioner against the respondents herein for permanent injunction restraining them from in any manner interfering with his peaceful possession and enjoyment of the suit property. According to the petitioner the suit properties are non residential properties and belonged to the first respondent/first defendant and S.Senniappan who is the third defendant in the suit. The second respondent is the husband of the first respondent. The third defendant S.Senniappan and one Ravi were partners in a firm M/s. Maker Exports, which firm obtained loans from Dhanalakshmi Bank Ltd., Tiruppur in the year 1994 and the suit properties were shown as securities for the repayment of the loan. The first respondent was the co-applicant for the loans advanced to the said firm and the first respondent and the third defendant executed an equitable mortgage of their properties in favour of the Bank. The Bank filed O.A.No:277 of 2000 before the Debt Recovery Tribunal-I, Chennai, renumbered as O.A.No:834 of 2001 before the DRT-II, Chennai against the said firm for recovery of its dues to the tune of Rs.1,15,81,537/= and the same was transferred to the DRT, Coimbatore in T.A.No:729 of 2002. Though all the defendants entered appearance, but they non prosecuted and therefore they were set ex parte and consequently the application was allowed on 210. 2004 and the Bank obtained the decree for Rs.3,27,92,564/=. The properties were brought for sale in RP.No.22/2005 by the DRT and one K.Duraisamy who was the tenant of the respondents and was doing business in the suit properties since 200 has purchased the same for a sum of Rs.33,07,000/= in the auction sale held on 12. 2005 and sale certificate was issued by the Recovery Officer of the DRT and the sale was confirmed on 2. 2006 after two months from the date of sale and thus the sale was made absolute and possession certificate was also given by the DRT on 20.2.2006. 2005 and sale certificate was issued by the Recovery Officer of the DRT and the sale was confirmed on 2. 2006 after two months from the date of sale and thus the sale was made absolute and possession certificate was also given by the DRT on 20.2.2006. the sale certificate was duly registered as Document L.No.1/2006 in the Sub Registrar office at Uthukuli. 3. The auction purchaser K.Duraisamy while he was the tenant in the suit property filed O.S.No: 238/2005 on the file of the District Munsif, Perundurai for permanent injunction and the suit was decreed on 310. 2005. Thus the tenant was in continuous possession from the date of tenancy in the year 2000 and particularly when he purchased the property in the auction sale held by the DRT and on subsequent dates when the sale was confirmed and possession certificate was issued. 4. The said auction purchaser sold the properties to the petitioner on 4. 2006 for a consideration of Rs.33,10,000/= and the same was duly registered and eversince the date of purchase the petitioner is in possession of the suit property. However, since the respondent tried to disturb the peaceful possession of the petitioner, he filed the present suit in O.S.No:135 of 2006 and also filed I.A.No:444 of 2006 for interim injunction. 5. The first and second respondents filed a counter stating that the third defendant without the knowledge of them created an equitable mortgage by depositing the title deeds with the said Dhanalakshmi Bank and the properties were sold in public auction and they came to know about all these things just prior to three months only and they have lodged a police complaint in Cr.No.73/2006 against the third defendant, auction purchaser, the petitioner and the Bank. They also field Appeal No.4 of 206 before the DRT, Coimbatore against the recovery proceedings and the sale order given by the recovery officer was stayed. The auction purchaser filed appeal against that order before the DRAT, Chennai in Appeal NO.181 of 206 and it was dismissed and hence the auction sale proceedings of the recovery officer of the DRT are not enforceable. They have also taken steps to set aside the exparte decree passed in O.S.No:238 of 2005 obtained by the tenant cum auction sale purchaser. .6. They have also taken steps to set aside the exparte decree passed in O.S.No:238 of 2005 obtained by the tenant cum auction sale purchaser. .6. The first and second respondents filed additional counter affidavits and came up with a new story that the third defendant has forged the signature of the first defendant in all the loan documents as well as the mortgage documents executed with the Bank and he played fraud on the first respondent and she never stood as a guarantor for the repayment of loan by the third defendant and his firm namely M/s.Maker Exports. The petitioner marked Exs.A.1 to A.12 and the respondents marked Exs.B.1 to B.27 and no oral evidence was let in by both sides. Meanwhile the auction purchaser has filed WP.No.17940/2006 before the first Bench of before the First Bench of this Court and it stayed the stay order given by the DRT and DRAT and thus the sale certificates issued by the Recovery Officer of the DRT is now in order. 7. According to the learned counsel for the revision petitioner the respondents are not in possession of the suit property from the year 2000, the contention of the respondents that they were not aware of the mortgage of the properties, public auction sale for the past 14 years is highly unbelievable. The story that the documents were stolen by the third defendant is also unbelievable. Ex.P.12 clearly says that the first respondents admitted signatures and signatures in the loan documents are compared and found to be the same. However, in CMA.35 of 2006 the learned Principal Sub Judge Erode stayed the operation of the injunction granted by the learned District Munsif. Though the second respondents name (S.Senniappan) was shown in the CMA and I.A., but for obvious reasons his name was strike down by the respondents in the I.A., alone and the learned Subordinate Judge also accepted the same and completed the hearing in spite of the strong objections of the petitioner. The learned Prl. Subordinate Judge holding that the possession of the auction sale purchaser is symbolic possession only and the respondents only are having legal right to hold possession and they are in possession of the same erroneously stayed the injunction granted by the trial court. 8. The learned Prl. Subordinate Judge holding that the possession of the auction sale purchaser is symbolic possession only and the respondents only are having legal right to hold possession and they are in possession of the same erroneously stayed the injunction granted by the trial court. 8. Learned counsel for the respondents contended that the third defendant fraudulently obtained or forged the signatures of the first respondent in the loan documents and mortgage documents and obtained loans from the Bank in the years from 1994 to 1997 and now only they came to know these things and lodged police complaint. According to her, she never executed any documents and obtained loans from the bank. Moreover the possession given by the recovery officer on 20.2.2006 to the auction sale purchaser is symbolic possession and legally the respondents are in possession of the properties. According to the first respondent she never stood as a co applicant for the partnership concern and she never received any summons or notice from the DRT or engaged any counsel to enter appearance in the said proceedings. The petitioner cannot derive more than what his vendor, the auction sale purchaser was alleged to have. Further, the suit as framed is not maintainable as per Section 24 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 read with Rule 41 and 42 of the II Schedule of the Income-tax Act Rules 1962 and without any full-fledged trial in O.S.No:135 of 2006, the petitioner is not entitled to any relief. 9. When CRP.No:1452 of 2006 was filed challenging the order dated 10. 2006, made in I.A.No. 290 of 2006 taken out in CMA.No:35 of 2006 passed by the learned Prl. Subordinate Judge, Erode staying the injunction granted in I.A.No:444/2006 in O.S.No: 135 of 2006, passed by the learned District Munsif, Perundurai, this Court by order dated 112. 2006, set aside the order passed by the learned Principal Subordinate Judge, Erode and restored the injunction originally granted by the learned District Munsif, Perundurai, upholding the continuance of possession of the suit property by the revision petitioner. 10. Thereafter, the learned Prl. Subordinate Judge, Erode proceeded with the main CMA.No:35 of 2006 and disposed of the same by allowing the appeal, thereby setting aside the order of interim injunction granted in I.A.No:444 of 2006 in O.S.No: 135 of 2006, passed by the learned District Munsif, Perundurai. 10. Thereafter, the learned Prl. Subordinate Judge, Erode proceeded with the main CMA.No:35 of 2006 and disposed of the same by allowing the appeal, thereby setting aside the order of interim injunction granted in I.A.No:444 of 2006 in O.S.No: 135 of 2006, passed by the learned District Munsif, Perundurai. Aggrieved of the same, the present CRP is filed by the revision petitioner/plaintiff. .11. In the meanwhile as against the said order passed in the above CRP, the first respondent preferred an Special Leave Petition to the Honble Supreme Court in SLP (Civil).No:390 of 2007 and the Honble the Apex Court passed the following order on 21. 2007:- ."We are not inclined to interfere in the matter. The Special Leave Petition is, accordingly dismissed. Needless to say that any observations made in the impugned order is on the basis of a prima-face view. It shall not be considered to be determinative when the suit is tried." .12. Learned senior counsel for the revision petitioner in this revision contended that the learned Principal Subordinate Judge, Erode has conveniently overlooked the stay order granted by the Division Bench of this Court in CRP.(PD) Nos:362 and 363 of 2007 suspending the injunction granted by the DRAT, the earlier order passed by this Court in CRP PD No.1452 of 2006 and also the refusal of the SLP by the Apex Court filed by the first respondent and the various judgment cited by the petitioner. After the orders are reserved by the first appellate court in the CMA, this court allowed the CRP PD Nos:362 and 363 of 2007 filed by the petitioner wherein the Division Bench of this Court set aside the injunction order dated 21. 2007 granted by the DRAT in favour of the first respondent. However, this order was not taken note of by the first appellate court in deciding the CMA and it erroneously vacated the injunction granted by the trial court by holding that DRAT has given injunction in favour of the first respondent. It is also contended that the first appellate court seriously erred in giving a finding that only symbolic possession was given to the auction purchaser and the subsequent purchaser namely the petitioner. It is also contended that the first appellate court seriously erred in giving a finding that only symbolic possession was given to the auction purchaser and the subsequent purchaser namely the petitioner. After referring to various decision s of the Honble Supreme Court, ultimately it is contended that when the sale is done by the Court through auction sale, the auction purchaser should not be prejudiced by the subsequent litigations. Therefore, it is prayed that the legal rights of the petitioner has to be protected by setting aside the judgment of the first appellate court granted in CMA.No:35 of 2006 and by restoring the injunction granted by the trial Court. 13. On the contrary the learned senior counsel appearing for the respondents contended that the suit framed is not maintainable as per Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 41 and 42 of the II Schedule of the Income Tax (Certificate Proceedings) Rules 1962 and the petitioner is not entitled to any order, which he can seek only after a full-fledged trial in OS.No.135 of 2006. During the pendency of the Appeal No:4 of 2006 which was filed by the first respondent under Section 30 of the Act, the petitioner is not entitled to agitate his right by way of this revision petition. It is also submitted that in W.P.No:38525 of 2005, the alleged tenant Ravi filed an affidavit wherein he alleged that he alone is the lessee and K.Duraisamy joined him as a partner in his business. The said document has been marked as EX.B.19 in I.A.No.444 of 2006. If that is true, it is not known as to how Duraisamy alone could have given physical possession of the property to the petitioner on the date of sale on 4. 2006. The above facts prove the falsity of the case of the petitioner and therefore the petitioner is not entitled to an order of ad interim injunction. According to the learned counsel of the respondents, it is only the respondents 1 and 2 are always in possession and enjoyment of the suit property and the same cannot be disturbed. .14. 2006. The above facts prove the falsity of the case of the petitioner and therefore the petitioner is not entitled to an order of ad interim injunction. According to the learned counsel of the respondents, it is only the respondents 1 and 2 are always in possession and enjoyment of the suit property and the same cannot be disturbed. .14. Considering the submissions of the learned senior counsels appeared on either side and also the observations of the Honble Apex Court in the SLP.No:390 of 2007 preferred against the order passed in the earlier CRP No: 1452 of 2006 and also the judgment of the Division Bench of this Court rendered in CRP.Nos:362 and 363 of 2007, I am of the considered view that since all these proceedings arise only as against the interim injunction granted in the pending suit as well by in the pending I.A.Nos:51 and 52 of 2007 before the DRAT, Chennai, the dispute involved between the parties could be only resolved in the suit by a full-fledged trial. Therefore, while suspending the order made in the CMA.No:35 of 2006, this court directs the trial court to dispose of the suit O.S.No:135 of 2006 within a period of one month from the date of receipt of a copy of this order, without being influenced by the observations made in the Civil Revision Petition as observed by the Honble Apex Court. 15. With the above direction, this CRP is disposed of. Consequently, connected M.P., is closed. No costs.