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2009 DIGILAW 3276 (MAD)

A. Lawrance v. J. John Adaikalaraj

2009-08-20

V.PERIYAKARUPPIAH

body2009
O R D E R:-This revision petition has been filed against the petitioners who were the respondents before the lower Court against the order passed by the lower Court in O.P.No.75 of 2006, a petition under Section 83 of the Transfer of Property Act seeking for deposit of mortgage money. 2. The case of the petitioners before the lower Court are briefly stated as follows:- The suit property originally belonged to the first petitioner's wife. She died on 12.8.2005 leaving behind the petitioners as her legal heirs. The first petitioner's wife borrowed a sum of Rs.1,00,000/- from the respondents' mother on various occasions and paying the interest regularly. The respondents' mother died in the year 1999 leaving the respondents as her legal heirs. A portion of the petitioner's house was let out to the respondents' mother and all of them are residing in the petitioners' house. At the time of letting the house to the respondents, the respondents' mother had requested the petitioners to execute the mortgage deed with respect to the amount borrowed by the first petitioner and accordingly, on 13.7.1998, a mortgage deed was entered in to between the petitioners and the respondents. As per the deed, the amount borrowed was mentioned as Rs.2,50,000/-. The interest due under the mortgage deed was adjusted towards rent for the premises given to the petitioners as per the agreement entered in to between them. The respondents vacated the property and the amount towards repayment was given to the respondents by way of Demand Draft on various occasions but the respondents refused to receive the same. Further, the notice sent by the respondents was replied by the petitioners. Since the respondents refused to receive the entire amount due under the mortgage deed, the petitioners are not liable to pay any interest subsequent to 8.9.2003. Therefore, the petitioners pray the Court to permit the petitioners to deposit a sum of Rs.2,50,000/- due under the mortgage deed dated 13.7.1998 to the respondents. 3. The contentions raised by the respondents in the counter affidavit are as follows:- The respondents advanced a loan of Rs.2,50,000/- by executing a registered deed of mortgage of the suit property. In spite of several demands made by the respondents, the petitioners did not pay any interest. He stated that there was no stipulation, either oral or in writing, to adjust the interest against the alleged rent due. In spite of several demands made by the respondents, the petitioners did not pay any interest. He stated that there was no stipulation, either oral or in writing, to adjust the interest against the alleged rent due. As the petitioners did not pay amount either in cash or demand draft, the question of refusal by the respondents to receive the same does not arise. Therefore, the refusal to pay interest on the premise of such alleged refusal from 8.9.2003 equally is untenable. The respondents issued a lawyer's notice on 24.5.2004 itself calling upon the petitioners to redeem the mortgage payment of amount with interest. More so, the first respondent stayed in the mortgage property as a tenant and also paid the rent for the same. They denied the statement that they agreed to adjust the rent against the interest. They further submitted that the petitioners never expressed their readiness to pay in instalments towards the mortgage loan obtained by them and the respondents never refused the payment on the promise of demanding the entire amount in one lumpsum and therefore, they pray the Court to dismiss the petition. 4. The lower Court, after examining the first petitioner as P.W.1 and the first respondent as R.W.1, had considered the petitioners' documents Exs.P.1 to P6 and had come to a conclusion of permitting the petitioners to deposit the mortgage money of Rs.2,50,000/- in to Court. Being aggrieved by the said decision of the lower Court, the revision petitioners/mortgagees have preferred this Civil Revision Petition. 5. Heard Mr. V.Nicholas, the learned counsel appearing for the petitioners and Mr.K.Kalyanasundaram, the learned counsel appearing for the respondents 1 to 3. 6. Mr. V.Nicholas, the learned counsel for the petitioners (mortgagees) would submit in his argument that the lower Court is wrong in conducting the enquiry as if it is a contentious suit forgetting that the proceedings under Section 83 of Transfer of Property Act would be a summary procedure and no finding is necessary as to the quantum of mortgage money and other excess amounts, if any, to be paid by the mortgagors. However, the lower Court had conducted an enquiry and had permitted the respondents (mortgagors) to deposit the sum of Rs.2,50,000/- into Court being the principal amount of mortgage. However, the lower Court had conducted an enquiry and had permitted the respondents (mortgagors) to deposit the sum of Rs.2,50,000/- into Court being the principal amount of mortgage. He would further submit that the proceeding under Section 83 of Transfer of Property Act is a ministerial duty of the Court and it has to simply pass an order of relegating the parties to go for appropriate remedy. He would also submit that it should not give a finding as to the sufficiency or insufficiency as to the mortgage money or the quantum payable in respect of mortgage, as if, it is a suit for redemption. 7. He would also bring it to the notice of this Court a judgment of this Court reported in AIR (32) 1945 Mad 46 in between Cherukuri Ramakrishniah vs. Krushi Vidyalaya Sangam to the principle that the Court has not to give a finding on any question. He would cite yet another judgment of this Court reported in 1983 II MLJ 207 in between N.Govindaswami v. R.Bakkim to the effect that there may not be any enquiry in a petition under Section 83 of the Transfer of Property Act and the contingency for such enquiry will arise only in subsequent proceedings, when the mortgager is dissatisfied with the action of the mortgagee takes appropriate legal proceedings for the enforcement of his rights. He would also cite yet another judgment of this Court reported in 2007 (5) MLJ 476 in between Ms.Haffilaby v. Nanou Mouhamed Ali to the proposition that the right of the mortgagor under Section 83 of the Transfer of Property Act is in respect of depositing of the mortgage money and it is not a right to redeem when the mortgagee refused to accept the amount. Therefore, he would request the Court that the detailed enquiry conducted by the lower Court was nothing but otiose and the duty of the Court was to ascertain as to whether the petitioners / mortgagees are willing to receive the amount deposited by the mortgagor or not. Therefore, he would request the Court to interfere with the order passed by the lower Court and to allow the revision with suitable instructions. 8. Therefore, he would request the Court to interfere with the order passed by the lower Court and to allow the revision with suitable instructions. 8. Mr.K.Kalyanasundaram, the learned counsel for the respondents /mortgagers would submit in his argument that the mortgagors were willing to pay the mortgage money on earlier occasions but the petitioners/ mortgagees did not accept to receive the amount and therefore, it has become necessary for the mortgagors to seek the remedy under Section 83 of Transfer of Property Act and the mortgagees also did not agree to receive the amount and the lower Court had rightly found that the mortgagees are entitled to only such amount and the respondents/mortgagors were not liable to pay any amount further. Further, if for any reason this Court is allowing the revision, the respondents / mortgagors right to sue for redemption of the mortgage may not be affected. He would further submit that the respondents/mortgagors are not liable further for any interest over the mortgage but only at the decision of the Court in the appropriate subsequent proceedings, the previous liability alone could be decided. He would further submit in his argument that the mortgage deed and the other deeds may be directed to be deposited by the petitioners/mortgagees since the respondents/mortgagors have deposited mortgage money. Therefore, he would request the Court to dismiss the revision petition and to pass appropriate orders. 9. I have given anxious thoughts to the arguments advanced on either side. The revision has been filed by the petitioners, who were the respondents herein seeking permission to deposit the mortgage money. The petitioners herein are the mortgagees and the respondents are mortgagors. For convenience sake, the ranks of the parties in the mortgage are referred to. 10. It is not in dispute that the mortgagors are the legal representatives of the original mortgagor and the mortgagees are the legal representatives of the original mortgagee. The execution of the mortgage was not disputed. The only allegation made by the mortgagors were that original mortgagee, namely, the mother of the mortgagees was ill and they were taking treatment by staying at the mortgaged property in one portion and they agreed to adjust the interest payable to the mortgagor towards rent payable by them and, therefore, there was no question of payment of interest in the said mortgage. It is also put forth by the mortgagors that the mortgagees have subsequently vacated the said property. It is also the further case of the mortgagors that they have tendered the said principal amount of Rs.2,50,000/- to the mortgagees but they refused. Therefore, they had sought for depositing of the money under Section 83 of Transfer of Property Act. [hereinafter referred to as Act] 11. The judgment referred to by the learned counsel for the revision petitioners (mortgagees) reported in AIR (32) 1945 Mad. 46 in between Cherukuri Ramakrishniah vs. Krushi Vidyalaya Sangam would go to show the scope of Section 83 of the Act as follows: "There is no provision in S.83 for an enquiry as to the sum due by the mortgagor to the mortgagee. The mortgagor makes the tender and the mortgagee has to say whether he accepts the sum in full discharge of the mortgage or not. Such, an enquiry is beyond the scope of S.83; because the Court has not to give any finding at all on any question." Yet another judgment of this Court made in AIR 1983 II MLJ 207 in between N.Govindaswami vs. R.Bakkim would run as follows: ".. .. .. The provision contained in Section 83 enables a mortgagor to deposit into court the amount remaining due on the mortgage. On receipt of notice from the Court, it is upto the mortgagee on presenting a petition, to state the amount then due under the mortgage and his willingness to accept the money so deposited in full discharge of such amount, and on the mortgagee depositing in the Court the mortgage deed and all documents in his possession or power relating to the mortgaged property, he can apply for and receive the money. Consequently, the mortgage deed and all such other documents should be deposited into Court under the provision. The third part of the provision relates to the delivery of possession of the mortgaged property and re-transfer etc. If the mortgagee does not accept the money deposited into Court and does not signify his wilingness to accept the same in full discharge of the amount due under the mortgage, the Court has no obligation to enter into any enquiry as to whether the amount so deposited by the mortgagor represents the correct amount due under the mortgage. Such an enquiry is alien to section 83 of the Transfer of Property Act. Such an enquiry is alien to section 83 of the Transfer of Property Act. .. .. .." The judgment of this Court reported in 2007 (5) MLJ 476 in between Haffilaby v. Nanou Mouhamed Ali would also reiterate the same point as follows:- "9. Section 83 of T.P. Act provides a summary procedure for redemption and the petitioner is not a suit. The function of the Court being ministerial and hence, it is not for the Court to ascertain the amount due on the Mortgage or the sufficiency of the deposit or to decide the rival claims of contending Mortgagees. Therefore, this summary procedure under Section 83 T.P. Act is not applicable to contentious cases." For better understanding of Section 83 of the Act, it is extracted here under:- "At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee the amount remaining due on the mortgage. The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amounts then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage-deed and all documents in his possession or power relating to the mortgage property, apply for and receive the money and the mortgage deed and all such other documents so deposited shall be delivered to the mortgagor or such other person as aforesaid. Where the mortgagee is in possession of the mortgaged property, the Court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgement in writing that any right in derogation of the mortgagor's interest transferred to the mortgagee has been extinguished." 12. On a careful perusal of the ingredients of Section 83 of the Act and the judgments of this Court passed thereon, we could see that the Court has to issue notice to the mortgagees on receipt of petition filed under Section 83 of the Act in respect of deposit of the mortgage money made by the mortgagors. Therefore, the receipt of mortgage money by the Court is a ministerial one. No detailed enquiry is required for ordering the deposit of said money. But, the lower Court had permitted the mortgagors to deposit the money only after a detailed enquiry. Section 83 of the Act is a facilitating procedure to deposit the mortgage money by the mortgagor for the purpose of getting assent from the mortgagee to get the money and thereby to avail benefits of not paying interest thereafter. If for any reason, the mortgagees are denying the quantum of payment deposited by the mortgagors it shall be relegated to subsequent procedure as suitable for both parties. The mortgagor is entitled to proceed with the redemption suit and the mortgagee is also entitled for the recovery of the balance mortgage money. The enquiry is not at all contemplated under Section 83 of the Act. The detailed enquiry conducted by the lower Court by examining the witnesses and admitted documents on the side of the petitioners/ mortgagors is sheer a waste without understanding the scope of the provision. 13. Therefore, it is necessary for this Court to interfere with the order passed by the lower Court and to set aside the same. However, the deposit as ordered by the lower Court was promptly complied with by the mortgagors and the memo has been filed before this Court that a sum of Rs.2,50,000/- was deposited before the lower Court towards the mortgage money to the credit of O.P.No.75 of 2006 on 23.3.2007. The mortgagees have disputed the quantum payable by the mortgagors. Their contentions are that the mortgagors are also liable to pay interest since the dispute in between mortgagors and mortgagees are to be solved through appropriate proceedings namely, redemption suit by mortgagors or suit for recovery of mortgage money by the mortgagees. 14. Therefore, this revision is allowed. However, the mortgagors are entitled to the benefit of Section 83 of the Act on the deposit of a sum of Rs.2,50,000/- being the principal sum of mortgage. 14. Therefore, this revision is allowed. However, the mortgagors are entitled to the benefit of Section 83 of the Act on the deposit of a sum of Rs.2,50,000/- being the principal sum of mortgage. Apart from that the mortgagors are entitled to go for redemption suit and similarly the mortgagees are entitled to approach appropriate forum by filing suit for recovery of mortgage money before the appropriate Court. 15. With the aforesaid observations, this Civil Revision Petition is allowed and the order passed by the lower Court is set aside except the order passed regarding the deposit of mortgage money. No costs. Consequently, connected MP is closed.