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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
S. Rajesh Kumar - Appellant
Versus
C. Bakthavatchalam & Others - Respondent
A. No. 1543 of 2018 in C.S. No. 829 of 2010
Decided On : 09-03-2018
Transfer of Property Act – Section 69 – Collateral Security – Furnishing Bank guarantee – Application has been taken out by the plaintiff in the suit seeking to strike out the defence of the defendants 1 and 2 and decree the suit as prayed for or in the alternative to direct the defendants 1 and 2 to furnish Bank guarantee or other immovable property as collateral security for due compliance of the order passed in O.A. in C.S. – Held, legal position is that if the husband fails to make payment of interim maintenance or litigation expense, as ordered by the Court, then the wife can file an application praying the Court to dismiss the petition or strike of the defence, as the case may be. – In such case, the Court will consider the same and dispose it of on merits. – In case if the Court comes to the conclusion that the application has to be allowed, then it should not straightway pass an order but give another opportunity giving reasonable time, minimum of three weeks, so that the husband, if he desires to make the payment, can do so. – Only on his failure to make the payment, the original petition can be dismissed or defence can be struck off. – legal position that emerges from the judgments cited above is that, of course, the Court is possessed of the powers to strike out the defence in an appropriate case but the same cannot be done just for the asking. – It should be shown that the order, the non-compliance of which is complained of, expressly stated that such non-compliance would result in the defence being struck off. That is not the case here. – Order passed by this Court does not say that the result of non-compliance would be striking off the defence of the defendants. – Court do not think that it would be proper to visit the defendants with the serious consequence of striking out the defence. – Application Dismissed
1. This application has been taken out by the plaintiff in the suit seeking to strike out the defence of the defendants 1 and 2 and decree the suit as prayed for or in the alternative to direct the defendants 1 and 2 to furnish Bank guarantee or other immovable property as collateral security for due compliance of the order passed in O.A.No.6587 of 2010 in C.S.No.829 of 2010.
2. The suit in C.S.No.829 of 2010 has been filed by the applicant herein seeking a declaration that he is the absolute owner of the property having purchased the same in the auction sale conducted by the 3rd defendant under a registered sale deed dated 20.07.2009 bearing document No.2613 of 2009, for recovery of possession and to direct the defendants to pay a sum of Rs.25,000/- per month as damages for use and occupation from 20.07.2009 viz., the date of purchase till dated of handing over vacant possession.
3. Pending the suit an application in A.No.6587 of 2010 was filed by the plaintiff to direct the defendants to pay a sum of Rs.25,000/- per month as damages for use and occupation of the suit premises.
4. The claim of the plaintiff is that the defendants 1 and 2 who are the owners of the suit property had borrowed monies by mortgaging the property in favour of M/s. Sree Varadaraja Benefit Fund Ltd. The mortgage deed empowered the mortgagee viz., M/s. Sree Varadaraja Benefit Fund Ltd., to sell the property without intervention of the Court as envisaged under Section 69 of the Transfer of Property Act. Exercising the said power, it is claimed by the plaintiff, that M/s. Sree Varadaraja Benefit Fund Ltd., had requested the auctioneers viz., M/s. Jagdish Auctioneers & Co. to sell the property by public auction.
5. It is also claimed that the said auctioneer had put up the property for auction on 11.07.2009 and the plaintiff was a successful bidder at Rs.10,10,000/-. It is also claimed by the plaintiff that he had paid the entire sale consideration and a sale deed was executed by the said M/s. Sree Varadaraja Benefit Fund Ltd., in favour of the plaintiff on 20.07.2009 and the same was registered as document No.2613 of 2009 in the Office of the Sub-Registrar, Purasaiwalkam.
6. The plaintiff thus claiming title had come forward with the above suit for declaration and possession. While disposing of the application in A.No.6587 of 2010 by an order dated 04.12.2012, this Court had issued following directions:
“The defendants 1 and 2 are accordingly directed to pay a sum of Rs.8,000/- (Rupees eight thousand only) per month as mesne profit from the date of filing of the petition. The arrears be paid within four months from today and the defendant No. 1 and 2 shall continue to pay Rs.8,000/- (Rupees eight thousand only) per month during the pendency of the suit.
7. Claiming that the said order has not been complied with despite lapse of nearly five years the plaintiff has come forward with the present application in A.No.1543 of 2018 seeking to strike out the defence.
8. When this application came for hearing on 21.02.2018, I had granted time to the defendants to comply with the said order dated 04.12.2012 by 01.03.2018. The said order also has not been complied with and it is now stated by the learned counsel for the defendants that they had filed an appeal along with an application to condone the delay challenging the order dated 04.12.2012. Be that as it may, the question now falls for consideration is that whether the defence of the defendants could be struck off for non-compliance with the order dated 04.12.2012.
9. The power of the Court to strike out the defence though not expressly conferred on the Court is undoubtedly available under its inherent powers under Section 151 of the Code of Civil Procedure. The circumstances under which the defence can be struck off has been a subject matter of several decisions of this Court.
10. In (Dasari) Venkatacharyulu Vs. Manchala Yesobu and another reported in AIR 1932 Madras 263, a Single Judge of this Court had held
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