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2021 DIGILAW 3496 (MAD)

Gandhi v. Annamalai

2021-12-13

R.PONGIAPPAN

body2021
JUDGMENT : (Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 24.10.2009 made in A.S.No.102 of 2008 on the file of the learned Principal Subordinate Judge, Villupuram, reversing the judgment and decree dated 08.01.2008 made in O.S.No.200 of 2006 on the file of the learned Principal District Munsif, Thirukoilur.) 1. The present Second Appeal is directed against the Judgment and decree dated 24.10.2009 made in A.S.No.102 of 2008 on the file of the learned Principal Subordinate Judge, Villupuram, reversing the judgment and decree dated 08.01.2008 made in O.S.No.200 of 2006 on the file of the learned Principal District Munsif, Thirukoilur. 2. The 1st defendant in O.S.No.200 of 2006, on the file of the learned Principal District Munsif, Thirukoilur, is the appellant herein. Before the trial Court, the respondents 1 and 2 herein, filed the above referred suit as against the appellant and other respondents, seeking the relief of direction, directing the defendants to pay a sum of Rs.50,056/-, along with interest at the rate of 12% per annum to the plaintiffs and for costs. 3. After elaborate trial, the learned Principal District Munsif, Thirukoilur, by judgment and decree dated 08.01.2008, dismissed the suit with costs. 4. Challenging the same, the plaintiffs/respondents 1 and 2 herein preferred an appeal in A.S. No.102 of 2008 on the file of the learned Principal Subordinate Judge, Villupuram, praying to set aside the judgment and decree dated 08.01.2008, passed by the learned Principal District Munsif, Thirukoilur. 5. The learned Principal Subordinate Judge, Villupuram, by judgment and decree dated 24.10.2008 allowed the appeal and set aside the findings arrived at by the trial Court. Ultimately, the suit was decreed, as prayed for. Being dissatisfied with the same, the 1st defendant is before this Court with the present Second Appeal. 6. For the sake of convenience hereinafter the parties are referred to as per their litigative status before the trial Court. 7. The laconic averments made in the plaint, are as follows: (i) Originally the suit schedule property belongs to one Sevi Gounder, who is the father of the defendants. After the demise of Sevi Gounder, on 13.12.1982, the defendants 1 to 6 along with their mother Ammaniammal, sold the suit property to the 1st plaintiff for Rs.9,500/-. After the same, the mother of the defendants viz., Ammaniammal passed away. After the demise of Sevi Gounder, on 13.12.1982, the defendants 1 to 6 along with their mother Ammaniammal, sold the suit property to the 1st plaintiff for Rs.9,500/-. After the same, the mother of the defendants viz., Ammaniammal passed away. In the sale deed dated 13.12.1982, it was mentioned that the defendants 1 to 6 received Rs.9,500/- for discharging the mortgage loan given by the 7th defendant. Further, the defendants 1 to 6 have assured to clear the encumbrance, if any, found in future. (ii) As per the assurance given by the defendants 1 to 6, they have not discharged the loan availed from the 7th defendant. Hence, the 7th defendant filed a mortgage suit pertains to the suit property in O.S.No.52 of 1996, before the competent Court and obtained a decree. After knowing the fact that the decree has been passed, the plaintiff/7th defendant herein approached the defendants for settling the issue. However, during the time of auction conducted by the Court, after made conspiracy, the 8th defendant, who is the son of the 3rd defendant participated in the auction and purchased the suit schedule property in the auction. (iii) Thereafter, the plaintiffs deposited the decree amount and set aside the sale conducted by the Court. Therefore, the defendants are liable to pay the suit amount to the plaintiffs. Hence the suit. 8. The case of the defendants, as averred in the written statement, is as follows: (i) The 7th defendant Jayanthi Ammal, is the daughter of Sundaram Chettiyar, who is doing ‘money borrowing and lending business’ (“TAMIL”). The defendants 1 to 6 ultimately, were having the loan transaction with the said Sundaram Chettiyar. In this regard. On 24.02.1965, a mortgage deed was executed between the father of the defendants 1 to 6 Sevi Goundar and one Parvathy Ammal, wife of Sundaram Chettiyar. (ii) The defendants are illiterate persons. While at the time of executing the sale deed in favour of the plaintiffs, believing the assurance given by the plaintiffs, as they would settle the mortgaged loan to Sundaram Chettiyar, the defendants signed the sale deed. In otherwise, the recital found in the sale date is a fraudulent one. The plaintiffs never approached the defendants 1 to 6 for settling the alleged mortgaged loan. Further, there was no notice issued by the Sundaram Chettiyar as the mortgage loan has not been settled. In otherwise, the recital found in the sale date is a fraudulent one. The plaintiffs never approached the defendants 1 to 6 for settling the alleged mortgaged loan. Further, there was no notice issued by the Sundaram Chettiyar as the mortgage loan has not been settled. The said Sundaram Chettiyar received the entire mortgaged loan and after misrepresenting the same, he obtained the signature from the defendants. (iii) It is not correct to say that the plaintiffs knew the auction proceedings only at the time when the Court initiated the auction proceedings. There is no assurance given before the plaintiffs for settling the mortgaged loan in instalment basis. The 8th defendant in this case is residing separately. He is not having any relationship with the other defendants. The story put forth by the plaintiffs as they were cheated is nothing but a false story to enrich themselves unlawfully. Hence, the suit filed by the plaintiffs is liable for dismissal. 9. From the above averments, the learned Principal District Munsif, Thirukoilur, framed necessary issues and tried the suit. On the side of the plaintiffs, 1st plaintiff examined himself as PW1 and one Govindasamy was examined as PW2. Further, ten documents were exhibited as Ex.A1 to Ex.A10 on the side of the plaintiffs. Similarly, on the side of the defendants, the 1st defendant Gandhi, examined himself as DW1 and 8th defendant, was examined as DW2. No documents were exhibited on the side of the defendants. 10. After elaborate enquiry, the learned Principal District Munsif, Thirukoilur, dismissed the suit, against which the plaintiffs preferred an appeal in A.S.No.102 of 2008 on the file of the learned Principal Subordinate Judge, Villupuram. In the appeal, the findings of the trial Court was reversed by the first appellate Court. 11. Feeling aggrieved over the same, the 1st defendant is before this Court with the present Second Appeal. When the second appeal is taken up for admission, this Court formulated the following substantial question of law. Whether the suit claim is barred by limitation? 12. Heard Ms.Abirami, the learned counsel appearing on behalf of the appellant/1st defendant and Mr.N.Suresh, the learned counsel appearing on behalf of the respondents 1 and 2/plaintiffs and perused the materials available on record. 13. The substantial question of law framed in this appeal, relates to the point of limitation only. 14. Whether the suit claim is barred by limitation? 12. Heard Ms.Abirami, the learned counsel appearing on behalf of the appellant/1st defendant and Mr.N.Suresh, the learned counsel appearing on behalf of the respondents 1 and 2/plaintiffs and perused the materials available on record. 13. The substantial question of law framed in this appeal, relates to the point of limitation only. 14. The undisputed fact arisen in this appeal through the pleadings set out by either parties, is that on 13.12.1982, vide Ex.A1, Sale Deed the defendants 1 to 6 sold the suit schedule property to the 1st plaintiff for a consideration of Rs.9,500/-. In the sale deed dated 13.12.1982, there was a clause which reads as follows: “TAMIL”” 15. Hence, in view of the above, it is the duty vested upon the defendants 1 to 6 to discharge the mortgaged loan to one Jayanthi, who is arrayed as the 7th defendant in this case. Further, the defendant 1 to 6 gave an undertaking as in the event of any encumbrance in future, they would discharge the same. 16. It is not in dispute that the defendants 1 to 6 availed the mortgage loan from the 7th defendant, by pledging the suit schedule property. The said loan was not discharged by the said defendants 1 to 6 as agreed during the time of sale transaction dated 13.12.1982. Hence, in respect of the said mortgage loan, the 7th defendant Jayanthi Ammal, who is the mortgagor filed a suit in O.S.No.52 of 1996, before the competent Court and the same was decreed. 17. While at the time, the suit filed by the 7th defendant is pending for passing final decree, the 1st defendant filed a petition in I.A.No.96 of 1998 under Order I Rule 10 of Code of Civil Procedure, for impleading him as a party to the proceedings. The Court concerned had dismissed the said petition and against which, he has not preferred any revision. Afterwards, after passing a decree, the 7th defendant filed an execution petition in E.P.No.295 of 2002, through which she brought the suit schedule property for auction. In the auction proceedings, the 8th defendant participated and purchased the suit schedule property. During such time, before the confirmation of sale, the plaintiffs deposited Rs.38,052/-in the Court and thereby on 02.06.2003, vide order passed in EA No.305 of 2003, the sale was set aside. 18. In the auction proceedings, the 8th defendant participated and purchased the suit schedule property. During such time, before the confirmation of sale, the plaintiffs deposited Rs.38,052/-in the Court and thereby on 02.06.2003, vide order passed in EA No.305 of 2003, the sale was set aside. 18. Only by stating as above, the plaintiffs are before the trial Court as due to the breach committed by the defendants 1 to 6, they incurred a loss and therefore, the same ought to be compensated by paying the suit amount to the plaintiffs. 19. It is the submission of the appellant/1st defendant that the plaintiffs knew the pendency of the suit filed by the 7th defendant in the year 1998 itself and therefore, they ought to have filed the suit within a period of three years from the date of knowledge. He would further submit that since the present suit has been filed after the lapse of three years, it could be treated as the suit is barred by limitation. 20. Per contra, the learned counsel appearing for the respondents/plaintiffs made a submission as though the plaintiffs knew the pendency of the suit in the year of 1998, only on 02.06.2003, when they deposited the auction amount, whereby the auction was cancelled, the cause of action for the suit has commenced and accordingly, the present suit has been filed on 17.04.2006 and hence, the suit is not barred by limitation. 21. In this regard, the trial Court while at the time of disposing the suit after referring to Article 55 of the Limitation Act, came to the conclusion that the suit has not been filed within the period of limitation and therefore, the prayer sought by the plaintiffs, is not entertainable. In the appeal, it is the findings arrived at by the lower appellate Court that the cause of action for the present suit has arisen only on 02.06.2003 and therefore, the suit was filed within the period of limitation. 22. Here it is a case, vide Ex.A3, the plaintiff paid Rs.38,052/- towards the cancellation of auction conducted by the Court. In this regard, there is no dispute from either side. It also seems that the said amount has been deposited on 02.06.2003. 22. Here it is a case, vide Ex.A3, the plaintiff paid Rs.38,052/- towards the cancellation of auction conducted by the Court. In this regard, there is no dispute from either side. It also seems that the said amount has been deposited on 02.06.2003. Though, the 1st plaintiff gained knowledge in respect to the pendency of the suit in the year of 1998, being the reason that he is not a party, he has not incurred any loss at that time. 23. In this regard, this Court would like to highlight that the cause of action for filing the suit did not arise on the date on which the plaintiff gained knowledge in respect to the pendency of the suit, because no amount was paid on that date. As such it is beyond comprehension as to how it could be stated that for filing the suit for recovery of money, so to say, for getting reimbursed the amount paid to the authority could be held to have arisen on 02.06.2003. Therefore, I could not countenance the findings arrived at by the trial Court. 24. Since the present suit has been filed within three years from the date of deposit, it could be decided under Article 23 of the Limitation Act, as the suit was filed within the period of Limitation. In fact, in view of Article 23 of the Limitation Act, cause of action, will arise only at that time when the money is paid. Accordingly, the lower appellate Court correctly concluded the appeal as the present suit has been filed within the period of limitation. 25. However, on going through the prayer set out in the plaint, apart from the deposited amount i.e. Rs.38052/- the plaintiffs have asked a sum of Rs.12,000/- towards compensation and expenses, but the same is not upon the pleadings and evidence. Therefore, it would be appropriate to direct the defendants to pay Rs.38,052/-, along with interest at the rate of 12% per annum. 26. In fine, the present second appeal is partly allowed. The findings arrived at by the first appellate Court is modified and the defendants are directed to pay Rs.38,052/-, along with interest at the rate of 12% per annum, from the date of deposit i.e. 02.06.2003, till the date of realisation, to the plaintiffs. No Costs. Consequently, the connected Miscellaneous Petition is closed.