JUDGMENT : The suit had been filed under Order XXXVII Rule 2 of Original Side Rules, Madras High Court, seeking a judgment and decree against the defendants, International Sea Foods Private Limited, a company registered under the provisions of Companies Act, 1956 represented by Arjunlal Sunderdas and Arjunlal Sunderdas as the 2 nd defendant to pay a sum of Rs.8,20,00,000/- with interest on Rs.8,20,00,000/- with interest of Rs.7,00,00,000/- at 12% per annum from the date of plaint till the date of realization and for costs of the suit and in default to bring the property, described in the schedule to the plaint to sell and apply the proceeds towards payment of the aforementioned principle amount and interest and costs. 2.The plaintiff also seeks that if the sale proceeds are not sufficient for payment of the claim, a decree may be passed against the defendants to pay the amount together with interest at 12% p.a., till realization. The property described in the schedule was land and building at plot No.1A, New Door No.23, Anderson Road, Nungambakkam, Chennai. Pending the suit, the 2 nd defendant, Arjunlal Sunderdas had been adjudicated as insolvent and consequently by an order dated 08.09.2014 in A.No.5277 of 2014, the Official Assignee was impleaded as the 2 nd defendant as representing the estate of Arjunlal Sunderdas. 3.It is the case of the plaintiff that he had paid a sum of Rs.7,00,00,000/- to Arjunlal Sunderdas towards purchase of a flat in property bearing Old Door No.3/2A. New Door No.34, College Road, Nungambakkam, Chennai, which was proposed to be developed by the 2 nd defendant. The details of payment are as follows: S.No. Date Amount 1 14.01.2011 Rs.5,00,000/- 2 08.08.2011 Rs.75,00,000/- 3 11.08.2011 Rs.120,00,000/- 4 24.08.2011 Rs.100,00,000/- 5 14.09.2011 Rs.100,00,000/- 6 16.10.2011 Rs.100,00,000/- 7 28.10.2011 Rs.100,00,000/- 8 10.11.2011 Rs.100,00,000/- 4.It had been further stated that the proposal for development of the property did not commence. The 1 st defendant had therefore deposited the original title deeds with respect to the property at New Door No.23, Anderson Road, Nungambakkam, Chennai and a memorandum in this regard had also been executed on 14.01.2011 acknowledging receipt of a sum of Rs.7,00,00,000/- from the plaintiff. The plaintiff also came to know that the property which was proposed to be developed at College Road, Nungambakkam, Chennai, had been sold to Amarnath Reddy on 27.07.2012. The plaintiff also came to know that the property which was proposed to be developed at College Road, Nungambakkam, Chennai, had been sold to Amarnath Reddy on 27.07.2012. The plaintiff therefore lodged a complaint before the Commissioner of Police, Chennai, on 07.09.2013. The 2 nd defendant, Arjunlal Sunderdas filed an application seeking anticipatory bail in Crl.O.P.No.26317 of 2013 before this Court. A memorandum of compromise was entered into between the plaintiff and the 1 st defendant represented by Arjunlal Sunderdas as Managing Director and also in his personal capacity on 11.11.2013, whereby there was an admission of debt of Rs.7,00,00,000/- and the defendants undertook to pay a sum of Rs.8,20,00,000/- to the plaintiff on or before 31.01.2014. In view of the memorandum of compromise, the Criminal Original Petition was closed. Since the defendants did not honour their commitment to pay the aforementioned sum of Rs.8,20,00,000/- the suit had been filed on the basis of the memorandum of deposit of title deeds as a mortgage suit claiming a judgment and decree for the said sum together with interest on the principle amount of Rs.7,00,00,000/-, and on failure to bring the property at New Door No.23, Anderson Street, Nungambakkam, Chennai to sale and apply the proceeds towards the decreetal amount and if the decree amount is not satisfied for a personal decree against the defendants for the differential amount. The plaintiff also sought costs of the suit. During pendency of the suit, the 2 nd defendant had been adjudicated as an insolvent by order in I.P.No.25 of 2014 on 21.04.2014. The Official Assignee was therefore impleaded as the 2 nd defendant. 5.The learned Master had directed paper publication to be effected against the 1 st defendant. Paper publication was effected and process was deemed to be completed by order dated 13.01.2015. The 1 st defendant had taken a conscious decision not to participate in the judicial proceedings. 6.The 2 nd defendant / Official Assignee filed a written statement denying and disputing the claim of the plaintiff. It had been contended that the burden was on the plaintiff to prove the claim. It was also stated that the mortgage had been falsely created without sanction of law. It had also been stated that a reasonable presumption can be drawn that the memorandum of compromise had been obtained in coercion. In effect, the Official Assignee disputed the claim of the plaintiff. It was also stated that the mortgage had been falsely created without sanction of law. It had also been stated that a reasonable presumption can be drawn that the memorandum of compromise had been obtained in coercion. In effect, the Official Assignee disputed the claim of the plaintiff. 7.The plaintiff also filed a reply statement, wherein, the claim was again reiterated. It had also been stated that the Official Assignee was estopped from denying the claim, particularly since Arjunlal Sunderdas had admitted to the claim and the Official Assignee had only stepped into the shoes of the insolvent. It had also been stated that in Application No.156 of 2017, the claim of the plaintiff had been examined by this Court and it had been categorical observed that it would be addressed at the time when the properties are brought to sale and amounts are disbursed to the creditors. The plaintiff reiterated that the claim was genuine and that the plaintiff is entitled for the decree as prayed for. 8.On the basis of the aforementioned pleadings, the following issues arise for consideration: “1.Whether the alleged borrowings to the tune of Rs.7,00,00,000/- on several dates by cash by the 1st defendant was a genuine transaction done in the ordinary business course of transaction? 2.Whether the alleged deposit of the title deeds dated 14.01.2011 creating a mortgage on the property was with an intention to create mortgage or to avoid criminal proceedings? 3.Whether the alleged deposit of title deeds dated 14.01.2011 is genuine and true or subsequently created on 13.11.2013? 4.Whether the deposit of title deeds created on 14.01.2011 with recitals on a stamp paper reduced in writing requires registration? 5.Whether the borrowings was between the plaintiff and Arjunlal Sundardas Insolvent or with International Sea Food (P) Limited, the 1 st defendant? 6.When the alleged mortgage was created by the 1 st defendant without registration of charge under Section 125 of the Companies Act is valid and enforceable? 7.When the alleged mortgage by deposit of title deeds dated 14.01.2011 is not true and genuine, whether the suit under Order 34 of CPC maintainable? 8.Whether the compromise entered in a criminal proceedings for bail and orders passed at the behest of the plaintiff valid binding on the defendants without proving the debt as per procedure laid down by law? 7.When the alleged mortgage by deposit of title deeds dated 14.01.2011 is not true and genuine, whether the suit under Order 34 of CPC maintainable? 8.Whether the compromise entered in a criminal proceedings for bail and orders passed at the behest of the plaintiff valid binding on the defendants without proving the debt as per procedure laid down by law? 9).To what relief the plaintiff is entitled to?” 9.The parties were then invited to tender evidence. The plaintiff filed his proof affidavit and marked Exs.P1 to P15. Ex.P1 is the copy of the sale deed dated 15.01.1980 relating to the property mortgaged. Ex.P3 was the Board Resolution of the 1 st defendant to borrow money as loan. Ex.P4 was the deposit of title deeds dated 14.01.2011. Ex.P11 was the Board Resolution of the 1 st defendant authorizing the 2 nd defendant to enter into compromise with the plaintiff. Ex.P12 is the copy of the Memorandum of Compromise dated 11.11.2013. Ex.P13 is the copy of the order in Crl.O.P.No.26317 of 2013. Ex.P14 was the copy of the letter handing over to the original title deed to the 2 nd respondent by the plaintiff on 15.12.2018. Issue Nos.1 to 9: 10.It is the claim of the plaintiff that towards purchase of a plot proposed to be constructed in property at Old Door No.3/2A New Door No.34, College Road, Nungambakkam, Chennai, the plaintiff had advanced a total sum of Rs.7,00,00,000/- to the 1 st defendant, International Sea Foods Privae Limited represented by the Managing Director, Arjunlal Sunderdas. The amount had not been repaid. Arjunlal Sunderdas was impleaded as the2 nd defendant in the suit. The amount was not repaid by the defendants. 11.The original sale deed of yet another property at Old Door No.3/2A New Door No.34, College Road, Nungambakkam, Chennai, had been deposited with the plaintiff by letter dated 15.12.2018 and that particular sale deed had been marked as Ex.P1. The extract of the Permanent Land Register of the property was marked as Ex.P2. Since the defendants had not repaid the amount, a memorandum of deposit of title deeds dated 14.01.2011 had been entered into between the parties and that document had been marked as Ex.P4. The plaintiff then came to know that the property had actually been sold to Amarnath Reddy on 27.07.2012. The plaintiff had therefore lodged a criminal complaint on 07.09.2013 against the defendants. The plaintiff then came to know that the property had actually been sold to Amarnath Reddy on 27.07.2012. The plaintiff had therefore lodged a criminal complaint on 07.09.2013 against the defendants. The 1 st defendant had authorized the 2 nd defendant to enter into a compromise with the plaintiff by Ex.P11. The defendants came forward to compromise the issue. A Memorandum of Compromise dated 11.11.2013 was executed and a copy of the same had been marked as Ex.P12. The order in Crl.O.P.No.26317 of 2013 was marked as Ex.P13. 12.In the meanwhile, the 2 nd defendant, Arjunlal Sunderdas was declared as insolvent by order in IP.No.25 of 2014 by order dated 21.04.2014. An application was filed to implead the Official Assignee in the place of Arjunlal Sunderdas in the suit and the application was also allowed. 13.The plaintiff filed A.No.156 of 2017 in I.P.No.25 of 2014 seeking to exempt the property at No.23, Anderson Road, Nungambakkam, Chennai, from the administration of the Official Assignee. An order was passed by this Court on 27.07.2018 and this Court had ordered as follows directing the right of the plaintiff in the schedule mentioned property as mortgagee. “149.In the result, i).A.No.156 of 2017, seeking for a direction to exempt the property at No.23, Anderson Road, Nungambakkam, Chennai – 6 from the administration of the Official Assignee is dismissed, but, the claim of Applicant, as mortgagee, is preserved and would be determined, at the time of applying the sale proceeds.” 14.Thereafter, the plaintiff filed Review Application No.2 of 2018, by an order dated 14.12.2018, the Review Application was dismissed, but in the order it had been observed as follows: “3. ... The observation of this Court in paragraph Nos.149 (i) and 149(ii) of the order dated 27.07.2018 are independent of each other and they are not mutually destructive. 4.As far as Dr.M.Arumugam, the applicant in A.No.156 of 2017 is concerned, his rights as a mortgagee, in respect of the property bearing No.23, Anderson Road, Nungambakkam, Chennai – 600 006, is well protected under the order passed by this Court dated 27.07.2018. We have held that International Sea Foods Private Ltd., is a shell company of the Insolvent and his brother, only vis-a-vis the insolvent, who, on behalf of International Sea Foods Private Ltd., created the mortgage in favour of Dr.M.Arumugam. We have held that International Sea Foods Private Ltd., is a shell company of the Insolvent and his brother, only vis-a-vis the insolvent, who, on behalf of International Sea Foods Private Ltd., created the mortgage in favour of Dr.M.Arumugam. 15.It is thus seen that this Court had preserved the right of the plaintiff on direction of this Court. The plaintiff also deposited the title deed details of the property at No.23, Anderson Road, Nungambakkam, Chennai, in the office of the Official Assignee and letter of such deposit is marked as Ex.P15. The property at No.23, Anderson Road, Nungambakkam, Chennai was subsequently sold by auction by this Court. The Court had proceeded further with the adjudication of claim in IP.No.25 of 2014 and proceeded to declare the dividend to the creditors. It must be stated that while adjudicating the claim petitions with respect to the estate of the insolvent, this Court had, on examination of the facts, had observed that the claim of the plaintiff could be settled. 16.At this juncture, the plaintiff filed an affidavit consenting to settle the claim for a sum of Rs.5,00,00,000/-. The affidavit of the plaintiff reads as under: “I, Dr.M.Arumugam, S/o. Murukiah Pillai, aged about 58 years having office at No.7, Khader Nawaz Road, Nungambakkam, Chennai – 600 006 do hereby solemnly affirm and sincerely state as follows: 1.I am the plaintiff in the above suit and as such I am well acquainted with the facts and circumstances of the case. 2.I hereby agree to receive a sum of Rs.5,00,00,000/-(Rupees Five Crores only) from the 2 nd defendant representing the estate of the Insolvent Late Arjunlal Sunderdas, in full and final settlement of all my claims against the defendants in C.S.No.121 of 2014. 3.I respectfully request that I may be permitted to seek a refund the the court fee paid.” 17.This Court put across the proposal of settlement offered by the plaintiff to the 2 nd defendant. Considering the disputed facts and the interest of the creditors to the insolvent waiting for the return of their money for more than a decade, the 2 nd defendant representing the creditors had not expressed any objections for the proposal. Considering the disputed facts and the interest of the creditors to the insolvent waiting for the return of their money for more than a decade, the 2 nd defendant representing the creditors had not expressed any objections for the proposal. 18.We, after due consideration of the fact that this litigation cannot be prolonged indefinitely to reach a logical end through adjudication, that will not enure any benefit either to the plaintiff or to the creditors of the insolvent, therefore the proposal to settle the claim by grant of decree in terms of the offer by the plaintiff is viewed as appropriate, just and fair. 19.Accordingly, a decree is passed for a sum of Rs.5,00,00,000/- (Rupees Five Crores only) to be paid by the Official Assignee directly to the plaintiff from and out of the Estate of the insolvent. The plaintiff is entitled for refund of Court fees paid. 20.In the result: i).The suit is partly decreed for a sum of Rs.5,00,00,000/- (Rupees Five Crores only) to be paid by the Official Assignee to the plaintiff from and out of the Estate of the insolvent within a period of three weeks from this date. The plaintiff would be entitled for interest of 18% on Rs.5,00,00,000/- if there is a delay, for the number of days of delay in effecting payment by the Official Assignee. ii).The plaintiff is entitled for refund of the Court fees paid at the time of institution of the suit.