A. Maria John v. Colachel Co-operative Housing Society Limited
2021-06-11
G.R.SWAMINATHAN
body2021
DigiLaw.ai
ORDER : Since the issue involved in all these Civil Revision Petitions is one and the same, they are disposed of by this common order. 2. The Revision Petitioners herein had availed housing loans from the respondent Society. Mortgages were created on the petitioners' petition-mentioned properties. To deposit the amount due on the mortgages, the petitioners filed petitions under Section 83 of the Transfer of Property Act, 1882 before the District Munsif Court, Eraniel. The Court below returned the same on the ground of maintainability. Challenging the same, these Civil Revision Petitions have been filed. 3. It is not in dispute that the respondent is a Society registered under the Tamil Nadu Cooperative Societies Act, 1983. The petitioners are its members. Dispute has arisen between the petitioners on the one hand and the management of the Society on the other. Any dispute touching the business of a registered Society arising between a member and the Society shall be referred to the Registrar for decision under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983. 4. The question that arises for consideration is whether a member of the Society can file a petition under Section 83 of the Transfer of Property Act, 1882. Section 83 of the Act reads as under : “83.Power to deposit in Court money due on mortgage.—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. Right to money deposited by mortgagor. —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 amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, andon depositing in the same Court the mortgagedeed 6 [and all documents in his possession or power relating to the mortgaged property], apply for and receive the money, and the mortgagedeed, [and all such other documents], so deposited hail 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.” The nature of proceedings under the said provision has been dealt with in Bishwanath Prasad Singh v. Rajendra Prasad (2006) 4 SCC 432. It was held that the provision merely permits the mortgagor to deposit the mortgage amount. Even in a case where such deposit is made, in the event the mortgagee refused to accept the deposit, the mortgagor would have no option but to institute a suit for redemption relying on the mortgage money deposited. By reason of such deposit, the status of the parties is not altered. For filing a suit for redemption by the mortgagor, deposit under Section 83 is not a pre-condition. The function of the Court in terms of Section 83 of the Transfer of Property Act is procedural in nature. The court cannot even go into the question of correctness of the amount deposited. The outcome of the proceedings under Section 83 of the Transfer of Property Act cannot operate as res judicata. After so holding, it was laid down that the deposit under Section 83 of the Transfer of Property Act has to be made in a Court in which mortgagor might have instituted a suit for redemption. 5. Now the question is whether the petitioners could have instituted a suit for redemption against the Society before the Civil Court. To foreclose mortgage, the Cooperative Societies move the Registrar under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983. Whether Section 34 of CPC will govern the rate of interest to be awarded by the Registrar came up for consideration in R.Srinivasan vs. Special Officer (1999) 1 L.W. 662 and Madurai City Co-operative Housing Society Limited vs. Special Tribunal for Co-operative Cases (2000) 1 LW 644 . It was held that Section 34 CPC is inapplicable in view of Section 90(8) of the Tamil Nadu Cooperative Societies Act, 1983.
It was held that Section 34 CPC is inapplicable in view of Section 90(8) of the Tamil Nadu Cooperative Societies Act, 1983. When the legal action for foreclosure of mortgage can be initiated only before the Registrar under Section 90 of the Act, obviously, the relief of redemption can also be sought only before the very same authority under Section 90. 6. The bar of jurisdiction of Civil Court is set out in Section 156 of the Tamil Nadu Cooperative Societies Act, 1983. It reads as under : “Notwithstanding anything contained in any other law for the time being in force no order or award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any court and no injunction shall be granted by any court in respect of anything which is done or intended to be done by or under this Act.” Interpreting the corresponding provision in the Tamil Nadu Cooperative Societies Act, 1961, it was held in Paravakottai Village Co-operative Agricultural Loan Society v. J.Karthikeyan (1999) 1 LW 180 , that the Act is a selfcontained code in which a hierarchy of authorities is provided inclusive of a Cooperative Tribunal for the adjudication of disputes or claims under the Act. The statutory scheme deals elaborately with the procedures pertaining to not only to the execution of the awards but also the courses open to the aggrieved persons to pursue the remedies and to substantiate their objections. Therefore, the bar of jurisdiction of civil court provided in the statute would get attracted. According to Section 9 of CPC, the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is expressly or impliedly barred. In view of Section 90 of Tamil Nadu Cooperative Societies Act, 1983, filing of a redemption suit by the member-mortgagor against the Society is barred. When a redemption suit cannot be filed before the Civil Court, petition under Section 83 of the Transfer of Property Act, 1882 cannot also be filed. 7. I cannot, therefore, direct the District Munsif Court, Eraniel to entertain the subject mentioned petitions filed by the revision petitioners. The Civil Revision Petitions are dismissed. No costs.
When a redemption suit cannot be filed before the Civil Court, petition under Section 83 of the Transfer of Property Act, 1882 cannot also be filed. 7. I cannot, therefore, direct the District Munsif Court, Eraniel to entertain the subject mentioned petitions filed by the revision petitioners. The Civil Revision Petitions are dismissed. No costs. The Registry is directed to return the original papers to the learned counsel for the revision petitioners. The revision petitioners are at liberty to file a proper petition before the jurisdictional Registrar and on such filing, the Registrar will number the same and dispose it of on merits and in accordance with law within a period of six months thereafter.