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2019 DIGILAW 2927 (MAD)

Ponnachi Ammal v. Saraswathi Ammal

2019-10-25

N.ANAND VENKATESH

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JUDGMENT : N. Anand Venkatesh, J. 1. The present Civil Revision Petition has been filed challenging the Order passed by the Court below under Section 83 of the Transfer of Property Act, 1882, permitting the Respondent to deposit the Mortgage amount of Rs. 1,000. 2. The Respondent had taken a Loan for a sum of Rs. 1,000 and has entered into an "Othi" Agreement with the Petitioner on 2.9.1997. The possession of the property was also handed over by the Respondent to the Petitioner and the Petitioner was permitted to enjoy the possession in lieu of Interest. 3. The Respondent filed a Petition under Section 83 of the Transfer of Property Act, 1882, to deposit the money due on the Mortgage before the Court. This was resisted by the Petitioner mainly on the ground that the Mortgage has been made over to her brother Natesan @ Sait and that he is not a party to the proceedings and the Respondent has not approached the Petitioner to settle the amount before filing the Petition before the Court below. 4. The Court below has allowed the Petition and directed the Respondent to deposit the Mortgage amount of a sum of Rs. 1,000 on the ground that there is no proof for the Mortgage being made over to the brother of the Petitioner and the Respondent had already sent a Notice, dated 17.7.1995 (Ex. P3) and the Petitioner had also sent a Reply to the Respondent stating that the Mortgage that was made over to the said Natesan @ Sait has been settled and the Petitioner is in possession of the property. 5. The learned Counsel for the Petitioner submitted that the moment the Mortgagee raised the objection, the Court below ought to have closed the Petition filed under Section 83 of the Transfer of Property Act and the Respondent should work out her remedy only by filing a Suit for Redemption. The learned Counsel, in order to substantiate his submissions relied upon a Judgment in the case of N. Govindaswami v. R. Bakkim, 1983 (2) MLJ 207 . 6. Per contra, the learned Counsel for the Respondent submitted that there was no dispute with regard to the Mortgage, amount and also there was no dispute with regard to the possession enjoyed by the Petitioner in lieu of the interest. 6. Per contra, the learned Counsel for the Respondent submitted that there was no dispute with regard to the Mortgage, amount and also there was no dispute with regard to the possession enjoyed by the Petitioner in lieu of the interest. Therefore, when the Respondent was willing to deposit the entire Mortgage amount under Section 83 of the Transfer of Property Act, 1882 before the Court, the Court below has rightly held that the amount can be deposited and there was no serious dispute with regard to the same. Therefore, the learned Counsel submitted that there is no ground to interfere with the Order passed by the Court below. 7. This Court has carefully considered the submissions made on either side and perused the materials available on record. 8. Before going into the dispute that has been raised in this Civil Revision Petition, it will be beneficial to look into the scope of Section 83 of the Transfer of Property Act. It will be relevant to rely upon the Judgment cited by the learned Counsel for the Petitioner. The relevant portions in the Judgment is extracted hereunder: "2. Section 83 of the Transfer of Property Act has got a specific purpose to serve the plain language of that provision indicates. The said Section run thus: "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 a 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 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 acknowledgment in writing that any right in derogation of the Mortgagor's interest transferred to the Mortgagee has been extinguished." 3. The above position enables a Mortgagor to deposit into Court the amount remaining due to the Mortgage. On receipt of the 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 said Court the Mortgage Deed and all documents in his possession or power relating to the Mortgaged property, he an apply for and receive the money. Consequently, the Mortgage Deed and all such other documents so deposited shall be delivered to the Mortgagor or such other person referred to in 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 willingness to accept the same in full discharge of the amount due under the Mortgage, the Court has no obligation to enter into an Enquiry as to whether the amount 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. The contingency for such an Enquiry will arise only in subsequent proceedings, when the Mortgagor dissatisfied with the action of the Mortgagee takes appropriate legal proceedings for the enforcement of his rights. This being the import and implication of Section 83 of the Transfer of Property Act, I am of the view that the Court below need not have gone into the question as to whether the amount deposited was the proper amount due under the Mortgages concerned. This being the import and implication of Section 83 of the Transfer of Property Act, I am of the view that the Court below need not have gone into the question as to whether the amount deposited was the proper amount due under the Mortgages concerned. Anyway, the Petition having been dismissed by the Court below, I have to uphold the same for the reasons expressed by me above." 9. It is clear from the above Judgment that Section 83 of the Transfer of Property Act enables the Mortgagor to deposit into Court the amount remaining due under Mortgage. On receipt of Notice, the Mortgagee will have to state the amount that is due under the Mortgage and his; willingness to accept the money so deposited in full discharge of such amount. On the Mortgagee depositing the amount into Court, the Mortgage Deed and all the documents in his possession shall be returned to the Mortgagor. The third part of the provision deals with delivery of possession of the Mortgaged property. This Court has held that if the Mortgagee does not accept the deposit the amount into Court and does not signify his willingness to accept the same in full discharge of the amount due under the Mortgage, the Court has no obligation to enter upon an Enquiry and no such Enquiry is contemplated under Section 83 of the Transfer of Property Act. Therefore, it is for the Mortgagee to work out her remedy by filing a Suit for Redemption of Mortgage. 10. In the present case, Mortgagor has come forward to deposit a sum of Rs. 1,000 that was taken under "Othi Agreement", dated 2.9.1977. The property is in possession of the Mortgagee and she is enjoying the same in lieu of Interest. The stand taken by the Petitioner that the Mortgage was made over to her brother Natesan @ Sait also seems to have been redeemed could be seen from the Reply Notice given by her on 29.7.1995 (Ex. P4). The Court below has specifically given a finding with regard to the same. Therefore, the subsequent binding over of the Mortgage becomes insignificant and the said Natesan @ Sait is not even a necessary party in the present Petition. The Mortgagee claims to be in possession of the property. 11. P4). The Court below has specifically given a finding with regard to the same. Therefore, the subsequent binding over of the Mortgage becomes insignificant and the said Natesan @ Sait is not even a necessary party in the present Petition. The Mortgagee claims to be in possession of the property. 11. In view of the fact that there was no dispute with regard to the Mortgage amount and also the possession of the property enjoyed by the Petitioner in lieu of the Interest, there was nothing to be decided by the Court below relating to inter se rights of the parties. It is true that the Court cannot decide the dispute in a Petition filed under Section 83 of the Transfer of Property Act. However, in the instant case, except for the fact that, the Mortgagee was not willing to receive the amount, there was no dispute that was really existing between the parties. There is. a purpose behind the provision and in all cases, where the Mortgagor is willing to pay the entire amount due on a Mortgage, unless there is a serious dispute with regard to the amount payable, merely raising a dispute for the sake of resisting the Petition, will not bar the Court from passing an Order under Section 83 of the Transfer of Property Act. Therefore, the Judgment cited by the learned Counsel for the Petitioner will not apply to the facts of the present case. This Court does not find any illegality or infirmity in the Order passed by the Court below. There is absolutely no ground to interfere with the same. 12. In the result, the Civil Revision Petition is dismissed. No Costs. Consequently, connected Miscellaneous Petition is dismissed.