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2008 DIGILAW 4811 (MAD)

GK Harihara Rajan v. Neethi Devi & Others

2008-12-30

M.VENUGOPAL

body2008
Judgment :- 1. The civil revision petitioner has filed this civil revision petition praying this Court to invoke its supervisory jurisdiction under Article 227 of the Constitution of India directing the Principal Judge, City Civil Court, Chennai to dispose of the M.P.S.R.No.23397 of 2008 in Tr.O.P.No.257 of 2007 and to consider the Judgment of Honble Supreme Court in (2008) 2 SCC at page 585. 2. The learned counsel for the revision petitioner contends that the Principal Judge, City Civil Court, Chennai should not have returned the petition with citation on the endorsement that orders were passed and that the Principal Judge, City Civil Court ought not to have rejected the citation advanced by the petitioner, but should have atleast referred the same in the order and further that the M.P.S.R.No.23397 of 2008 to reopen for presenting the recent judgment of Honble Supreme Court has reached the Principal Judge, City Civil Court while criminal matters were being called and also even before the Civil cases were called and that the Principal Judge, City Civil Court has ignored the Article 147 of the Constitution and that the crux of the transfer petition has been for a joint trial in order to avoid plurality of orders by different Courts in the same subject matter and when the petitioners contention that he has been making all attempts since 1995 to deposit the mortgage money encumbered with his property etc., has been accepted by the Principal Judge, City Civil Court, then an order for joint trial should have been passed and therefore, prays for allowing the civil revision petition in the interest of justice. 3. In support of the contention that all possible proceedings relating to the same subject are to be disposed of jointly, the learned counsel for the petitioner relies on the decision in Maruti Clean Coal & Power Ltd. V. B.L. Wadhera and Others (2008) 2 Supreme Court Cases 585 at page 586) wherein the Honble Supreme Court has inter alia observed as follows: "Considering the nature of the controversy, we feel that interest of justice would be best served if the transfer petition(along with IAs Nos.2 and 3 in the transfer petition) and the special leave petition are disposed of on the following terms: 1. All the writ petitions and writ appeals detailed in the transfer petition and IAs Nos.2 and 3 shall be heard and disposed of by the High Court by 15. 2008 2. The parties are directed to appear before the Bench presided over by the Honble the Chief Justice of the High Court, without further notice, on 12. 2008 so that a firm date can be fixed for starting hearing of the writ petitions and the writ appeals. Though the writ petitions are normally heard by a Single Judge in the High Court, in view of the fact that the writ appeals are to be heard by the Division bench, all those writ petitions shall be tagged on and shall be heard by a Division Bench. 3. It is stated that certain suits are pending before the lower courts. The Bench presided over by the Honble the Chief Justice of the High Court shall transfer all such suits to the High Court, to be taken up along with the writ petitions and the writ appeals. 4. If cases concerning the nature of the dispute pending before the High Court are instituted hereinafter, the High Court shall take them up along with the writ petitions, writ appeals and suits which have been directed to be heard, and in case of suits, by directing transfer to the High Court if they are filed in lower Courts etc." 4. It is to be pointed out that the revision petitioner has filed Tr.O.P.No.257 of 2007 before the learned Principal Judge, City Civil Court, Chennai under Section 24 of Civil Procedure Code to transfer the suit O.S.No.7427 of 2000 pending on the file of Fast Track Court No.III, Chennai to the file of IX Assistant Judge, City Civil Court, Chennai for joint trial along with O.P.No.586 of 2005. 5. The learned Principal Judge, City Civil Court, Chennai has passed orders in Tr.O.P.No.257 of 2007 on 03.06.2008 inter alia stating that ‘admittedly the Court of IX Assistant Judge, City Civil Court, Chennai would not be competent to try the suit as it would be having no competence both with respect to subject matter and also pecuniary limits of its jurisdiction. Therefore, by way of transfer by this Court cannot confer jurisdiction on the Court of IX Assistant Judge, which is not competent originally to try the suit. Therefore, by way of transfer by this Court cannot confer jurisdiction on the Court of IX Assistant Judge, which is not competent originally to try the suit. It is well settled that neither consent nor waiver nor acquiescence can confer jurisdiction on a Court otherwise incompetent to try the suit etc. and resultantly, dismissed the petition’. 6. It is significant to point out that the revision petitioner in the Tr.O.P.No.257 of 2007 has inter alia averred that he purchased the property pending redemption suit O.S.No.663 of 1993 with a covenant that the mortgagor/ seller would conduct the said suit till disposal on merits and the petitioner/buyer would satisfy the decree at his cost. Unfortunately both the mortgagor and mortgagee colluded, therefore the petitioner filed both applications to implead him as plaintiff and for permission to deposit the mortgage amount with Lawful interest. But, somehow they obtained dismissal order of the suit as withdrawn to give life to the subsequent suit, O.S.No.7427 of 2000 etc. 7. The further case of the revision petitioner is that during the pendency of redemption suit, mortgagee filed a similar suit for recovery of mortgagee money with exorbitant interest from the petitioner in O.S.NO.7427 of 2000 and the same is pending on the file of III Fast Track Court, Chennai and that he has filed O.P.No.586 of 2005 under the Special Act before the Special Court to record full satisfaction of the loan and interest amount deposited, on permission by virtue of Section 5(2) of Act 38 of 2003; and for permission to deposit; and also for order of restoration viz., for recording cancellation of mortgage, and to deliver all Original Parent Documents etc. taken by the mortgagee at the time of lending loan to mortgagors, who sold the property to the petitioner with the said mortgage and since the subject matter is pending in two different Courts for payment of mortgage amount with lawful interest. taken by the mortgagee at the time of lending loan to mortgagors, who sold the property to the petitioner with the said mortgage and since the subject matter is pending in two different Courts for payment of mortgage amount with lawful interest. The Courts are different and therefore, will be two different decrees in one subject matter and moreover, the Special Court has jurisdiction to record satisfaction of loan and interest amount in O.P.No.586 of 2005 whereas the III Fast Track Court, Chennai has not been conferred with such power and in the interest of justice for recording full satisfaction of loan and interest amount O.S.No.7427 of 2000 pending on the file of III Fast Track Court, Chennai may be transferred to Special Court under Prohibition of Charging Exorbitant Interest Act to be tried along with O.P.No.586 of 2005. 8. The first respondent/mortgagee in her counter has inter alia stated that the petitioner has no cause of action and his request for transfer from III Fast Track Court to the Assistant Court is within ulterior motive to drag the proceedings as far as possible, without paying any amount to her, inspite of squatting on the Mortgage Property and preventing her to conduct the trial from November 2003. The stand of the first respondent/mortgagee is that she advanced loan on the security of the mortgage property to the second and third respondents and the revision petitioner purchased the property with encumbrances he is to discharge the mortgage deed as per mortgage deed. 9. It cannot be gainsaid that Section 6 of the Tamil Nadu Protection of Interests of Depositors Act, 1997 enjoins the State Government to constitute one or more Special Courts for the purpose of trying the cases registered under the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997. Moreover, all the Courts including the courts constituted under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 have no jurisdiction to try the cases registered under the Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997. In fact, by means of sub-section (4), the Special Courts are also empowered to try any other offence other than an offence specified in Section 5, with which the accused may, under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), be charged, at the same trial. In fact, by means of sub-section (4), the Special Courts are also empowered to try any other offence other than an offence specified in Section 5, with which the accused may, under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), be charged, at the same trial. Really speaking, Section 7 of Tamil Nadu Protection of Interests of Depositors Act 1997 speaks of the procedures to be followed by Special Courts in making the order of ad-interim attachment of Government absolute or refuse to make absolute the order of ad-interim attachment of the Government. 10. As on date, the Tr.O.P.No.257 of 2007 is not pending. As against the orders passed in Tr.O.P.No.257 of 2007 dated 03.06.2008 by the learned Principal Judge, City Civil Court, Chennai if the revision petitioner is aggrieved, then he must take further proceedings before the appropriate forum in the manner known to law. Certainly, Revision lies against an order of allowing or rejecting the transfer original petition under Section 24 of Civil Procedure Code as per decision 2003 4 ALD 56 (DB). Moreover, Revision lies with the order suffers from material irregularity or illegality. 11. Without exhausting his remedy of proceeding further as against the order passed in Tr.O.P.No.257 of 2007 by the Principal Judge, City Civil Court, Chennai, this Court opines that it is not open to the revision petitioner to file the present revision petition as against the return of M.P.S.R.No.23397 of 2008 (to reopen the matter) since admittedly, no proceedings are pending much less the Tr.O.P.No.257 of 2007 and in that view of the matter and without traversing upon the merits of the case, this Court dismisses the civil revision petition. 12. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Liberty is given to the revision petitioner to canvass the orders passed by the Principal Judge, City Civil Court, Chennai in Tr.O.P.No.257 of 2007 in the manner known to law, if so advised, before the appropriate forum and it is open to the petitioner to raise all factual and legal contentions including the citing of the decision in Maruti Clean Coal & Power Ltd. V. B.L. Wadhera and Others (2008) 2 Supreme Court Cases 585) in accordance with law. Consequently, connected miscellaneous petition is also dismissed.