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2018 Supreme(Mad) 2061
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. RAMATHILAGAM, JJ.
R.V. Subramanian Partner M/s. Raja Holdings, Financers and Merchants Firm – Petitioner
Versus
Chennai Metropolitan Development Authority – Respondent
W.P. Nos. 22183, 22184 of 2018
Decided On : 04-09-2018
For the Petitioner: Ms. S. Vaitheeswari for Mr. Niranjan Rajagopalan.
For the Respondents: Mr. Karthick Rajan for Mr. A. Nagarajan, Mr. R. Udayakumar.
Headnote:
Transfer of Property Act, 1882 - Section 69-A - Negotiable Instruments Act, 1881 - Section 138 - Tamil Nadu Town and County Planning Act, 1971 - Section 2(28), 56(2-A), 57, 80-A, Code of Civil Procedure, 1908- Order 43,40, 40(1) - Rule 1,31- Section 69-A - Partnership firm - Mortgage Deeds - Private Sale - Registered Partnership firm, doing banking business since 1995 and it is a reputed firm in the business circle. The 4th Respondent claiming to be a Real Estate Promoter, approached the Partnership firm, stating that they are constructing and selling Villas in Guduvancherry, Tiruvallur etc. as RRP Housing Pvt. Ltd. As a matter of fact, they had approached the Petitioner firm for financial assistance to an extent for their business. Further, the 4th Responder offered to mortgage the properties situated at Ekkattuthangal and Tambaram, owned by them personally, as security for the amounts borrowed from the Petitioners Partnership firm. Held, - Object of appointing a Receiver is concerned, the same is meant to protect, preserve and manage the property during the pendency of a Suit. The power to appoint a Receiver under Order 40 Rule 31 of the Code of Civil Procedure, 1908 is subject to the ingredients of Section 94 of CPC and is to be exercised with a view to prevent the ends of justice being defeated. A Receiver is not to be appointed unless there is a need for the same like the property in a Suit will be dissipated or irreparable mischief may be caused. Even by consent, the Court can appoint a Receiver in a given Suit. Furthermore, an appointment of Receiver is an act of the Court and made in the interest of justice. consideration of respective contentions and also this Court, taking note of primordial grievance of the Petitioner and the attendant facts and circumstances of the instant case, in an encircling manner, comes to an inevitable conclusion that the Writ Petitions filed by the Writ Petitioner are per se not maintainable, because of the fact that he is neither an Owner nor an Occupier of the building/property in question. Further, he has not filed the present Writ Petitions in his purported capacity as Receiver. Looking at from any angle, the Writ Petitions filed by the Petitioner, are devoid of merits- Writ Petitions are dismissed
1. Heard the Learned Counsel for the Petitioner, the Learned Counsels for R1 and R2 and the Learned Additional Government Pleader for R3.
2. To avoid an avoidable delay, Notice to R4 and R5 is not ordered by this Court.
3. According to the Petitioner, the present Writ Petitions are filed praying for issuance of Mandamus in directing the First Respondent to de-seal the building at Door No. 12/6, Achutha Nagar, Ekkattuthangal, Chennai-32. Further the Petitioner has sought permission from this Court to carry out the Rectification, as per Order of the 3rd Respondent dated 09.08.2016 in Letter No. 13524/UD-VI(1)/2016(4) and also sought for a direction to the Respondents to consider his Representation and to pass orders as stated above.
4. It is the case of the Petitioner that Raja Holdings, is a Registered Partnership firm, doing banking business since 1995 and it is a reputed firm in the business circle. The 4th Respondent claiming to be a Real Estate Promoter, approached the Partnership firm, stating that they are constructing and selling Villas in Guduvancherry, Tiruvallur etc. as RRP Housing Pvt. Ltd. As a matter of fact, they had approached the Petitioner firm for financial assistance to an extent of Rs. 5,50,00,000/- (Rupees Five and half Crores) for their business. Further, the 4th Responder offered to mortgage the properties situated at Ekkattuthangal and Tambaram, owned by them personally, as security for the amounts borrowed from the Petitioner's Partnership firm.
5. Based on the discussions between the Petitioner and the 4th Respondent, it was agreed to execute separate Mortgage Deeds, wherein, the properties belonging to the 4th Respondent's sons, at Agaram-Then Village, Tambaram Taluk and the land and building at No. 4, Achutan Nagar, 1st Street, Old Poonamallee Road, Ekkattuthangal, Chennai-32, which was owned by the Fourth Respondent, were to be mortgaged, assuring the Petitioner that he had valid legal title to the Properties and that the building that was there in the property also had valid approval. Indeed a sum of Rs. 5,10,00,000/- (Rupees Five Crores and Ten Lakhs) was disbursed by the Petitioner Firm through an Account Payee Only Cheque to the 4th Respondent, as mentioned in the Mortgage Deed. The balance sum of Rs. 40 Lakhs was disbursed by Cheques through associates of the Petitioner's firm, viz. Mrs. Shantha Jayaram and Mrs. G. Kalpana. Apart from that three Promissory Notes were issued by the 4th Respondent and his two Sons to the Petitioner Firm and the two Associates acknowledged the dues.
6. It comes to be known that among other Mortgage Deeds, a Simple Mortgage of the Property at Ekkattuthangal was executed at Chennai, on 27.4.2015 and Registered as Document No. 4862 in the Office of the Chennai South Joint Sub Registrar and the detail of the same runs as under:-
Date
Mortgagor
Mortgagee
Description of Property
27.04.2017
N. Padmanaban S/o Nataraja Pillai
Raja Holdings, Financiers and Merchants
Land and building at Door No. 12/6, Achutha Nagar, Ekkattuthangal Chennai-32, comprised in Block-1, T.S. No. 92, New T.S. No. 92/6, Patta in C.A. No. 332/2014, measuring 4,347 sq. ft. of land along with building.
7. The version of the Petitioner is that the Mortgage Deed conferred a specific right to the Mortgagee for a right of Private Sale as specified in Section 69-A of the Transfer of Property Act, 1882, in case of default, where the Mortgagee can effect sale, without intervention of Court. Besides this, in case of invocation, the Petitioner was to be appointed as Receiver. The building aforestated, which was mortgaged, was styled as RRP Towers and was supposed to be the Office of five Companies, viz. R.R.P. Housing Pvt. Ltd. Naagar Properties Pvt. Ltd, K.B.P. Traders Pvt. Ltd. and Surya Ganesh Properties Pvt. Ltd and Royal Gowtha
