Suit for mere declaration by a person who is out of possession not maintainable.

V. RAMASUBRAMANIAN, J.

The applications A. Nos. 4144 of 2007 and 4145 of 2007 and O.A. No. 729 of 2007 are by the plaintiffs seeking inter alia (i) stay of operation of the Sale Certificate No. 53 of 2006 dated 31.8.2006 issued by the Debts Recovery Tribunal-II, Chennai, (ii) leave under Order 2Rule 2 C.P.C., to seek appropriate reliefs regarding possession, on the basis of the same cause of action, in subsequent proceedings and (iii) interim injunction restraining the fourth defendant from dealing with the suit ‘A‘ schedule property. The application A. No. 4349 of 2007 has been taken out by the fourth defendant for rejecting the plaint under Order 7Rule 11 C.P.C.

2. I have heard Mr. P.S. Raman, learned Additional Advocate General, appearing for the plaintiff, Mr. V. Girish Kumar, learned counsel appearing for the third defendant-Bank and Mr. N.R. Chanaran, learned Senior Counsel appearing for the fourth defendant. The second defendant is a company under liquidation and hence notice was served on the Official Liquidator, but he did not choose to appear. Notice was served also on the first defendant but they have not chosen to appear.

3. The second defendant herein viz., Dhanalakshrni Consolidates Transports Pvt. Ltd., availed certain credit facilities viz., a term loan and cash credit hypothecation facility and failed to repay the amounts due, to the New Bank of India. Therefore, the Bank filed a suit for recovery of money in Suit No. 650 of 1990 on the file of the High Court of Judicature at Bombay. The first defendant herein was impleaded in the said suit as the second defendant. The Bank did not describe the first defendant herein viz., M.G. Brothers Lorry Service either as a borrower or as a guarantor, for the credit facilities availed by the second defendant-Company. However, the first defendant herein was made a party to the suit, Suit No. 650 of 1990 on the file of the High Court, Bombay, on the basis that the properties belonging to them had been mortgaged to the Bank, by the second defendant company, both by virtue of a power of attorney given to them and by virtue of an agreement that they had with the first defendant herein.

4. The said suit eventually got transferred to the file of the Debts Recovery Tribunai-II, Chennai in T.A. No. 1 of 2004. By then, the original plaintiff New Bank of India merged with the Punjab National Bank, which is the third defendant herein and hence the third defendant came on record as the plaintiff before the Debts Recovery Tribunal. Similarly, the second defendant-Company was wound up under the orders of this Court and hence the Official Liquidator came on record as representing the second defendant-Company before the Debts Recovery Tribunal.

5. During the pendency of the proceedings before the Debts Recovery Tribunal-II, Chennai, the third defendant-Bank took out an application in I.A. No. 336 of 2006, seeking permission of the Tribunal to sell all the plaint schedule properties (of that suit) to the fourth defendant herein for a sum of Rs. 200 lakhs. In the said application, which appears to have been filed either on 30.6.2006 or in the first week of July, 2006, a partner of the first defendant herein filed an affidavit of no objection for the sale of the properties. Based upon the averments contained in the application of the Bank and the affidavit of no objection filed by one partner of the first defendant herein, the Debts Recovery Tribunal-II, Chennai, passed an order on 10.8.2006, allowing the application and directing the Recovery Officer to issue a Sale Certificate in favour of the fourth defendant herein.

6. After the said order was passed on 10.8.2006, the third defendant-Bank filed a memo containing the description of the mortgaged properties and seeking necessary direction to the Recovery Officer to incorporate the terms of the Memorandum into the Sale Certificate. On the memo so filed by the Bank on 29.8.2006, the Debts Recovery Tribunal-II, Chennai, passed a