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2021 Supreme(Mad) 448
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
A.V. Murali – Appellant
Versus
Kiran Kumar P. Jain – Respondent
A.S. No. 586 of 2013
Decided On : 02-02-2021
For the Appellant :T.T. Ravichandran, Advocate.
For the Respondents:R1, Harshad P. Goklaney, Advocate.
The main legal point established in the judgment is the importance of adhering to the rules of evidence and ensuring the proper joinder of necessary parties in legal proceedings.
Headnote:
Civil Procedure Code - Recovery of Possession - Section 96 - The judgment discusses the admissibility of secondary evidence, non-joinder of necessary parties, and the validity of auction sale under Section 69 of the Transfer of Property Act.
Fact of the Case:
The appellant, the original owner of the suit property, filed a suit for recovery of possession and mesne profit against the respondent, who purchased the property in an auction. The appellant alleged that the auction sale was fraudulent and collusive.
Finding of the Court:
The Trial Court allowed the suit, concluding that the defendant failed to challenge the validity of the auction sale and, therefore, must vacate the premises. The appellate court found errors in the admission of secondary evidence and non-joinder of necessary parties, remanding the case for further trial.
Issues: The issues included the entitlement of the plaintiff for vacant possession and mesne profits, and the admissibility of secondary evidence and non-joinder of necessary parties.
Ratio Decidendi: The court found that the Trial Court erred in admitting secondary evidence without adhering to Section 65 of the Evidence Act and in not framing relevant issues regarding non-joinder of necessary parties.
Final Decision: The appellate court set aside the Trial Court judgment and remanded the matter for further trial to enable the parties to produce or summon the auction records and examine necessary witnesses.
JUDGMENT :
(Prayer: First Appeal has been filed under Section 96 of Civil Procedure Code, against the decree and judgment passed by the Hon’ble XVIII Additional City Civil and Sessions Court at Chennai in O.S.No.7509 of 2010 dated 27th September 2013.)
1. The Suit property originally belongs to the Appellant herein. The respondent herein is the purchaser of the property in the auction held on 26.10.2006. The sale deed was registered in favour of the respondent on 26.1102007. After notice to hand over the possession, the suit came to be filed for recovery of possession and mesne profit. The Trial Court decreed the suit. The relief of recovery of possession granted. For past and future mesne profit, leave to proceed separately under Order 20 Rule 12 of C.P.C ordered. Aggrieved by the judgement of the Trial Court, the present appeal is filed by the defendant in the suit.
2. The pleadings as found in the plaint:-
On 16.05.2000, the defendant first borrowed a sum of Rs.1,50,000/- from one Hastimal jain Proprietor of M/s.Jain Finance and created a mortgage of deposit of title deed. Subsequently, borrowed another sum of Rs.1,50,000/- from the son of Hastimal Jain one Girish Kumar (Proprietor of M/s.Prem Investments) under a deed of simple mortgage dated 22.05.2000. Both the mortgages were left undischarged. Girish kumar brought the suit property for sale under Section 69 of the Transfer of Property Act, for recovery of mortgage money. At the instance of the mortgagee/Mr.Girish kumar, the property was put to public auction through M/s.Verma and Company on 26.10.2006. The plaintiff was the successful bidder for Rs.15,50,000/-. He paid Rs.3,87,500/- by cash on the date of auction. (26/10/2006). The balance sale consideration of Rs.11,62,500/- was paid by cheque dated 09.11.2006 which was revalidated to 26.10.2007 at the request of the mortgagee and encashed. On payment of entire sale consideration, sale deed was executed in the name of the plaintiff and got it registered on 26.11.2007. The plaintiff on several occasions orally requested the defendant to hand over the possession. The defendant did not heed the request. Then the plaintiff through his Counsel caused notice dated 08.06.2008 to vacate the suit property and deliver possession. The defendant received the notice on 16.06.2008 but neither vacated the premises nor replied to the notice. Hence, the suit.
3. Pleadings as found in the written statement:
The alleged auction sale dated 26.10.2006 is a fraudulent and collusive deal between the mortgagee and the plaintiff. On the date of auction, the suit in O.S.No.437 of 2005 filed by the defendant was pending before the II Assistant City Civil Court, Chennai. Further, suit to declare the auction sale as null and void filed before the same Court also pending in O.S.No.8613 of 2006. The suit is bad for non-joinder of necessary parties viz., the mortgagee M/s.Prem Investment and the auctioneer M/s.Verma and Company. The defendant borrowed Rs.1,50,000/- as hand loan from Hasthimal Jain. The original document pertaining to the suit property was handed over to Hastimal Jain but not with any intention to create an equitable mortgage. No memorandum signed evidencing the deposit of title deed for the purpose of creating an equitable mortgage. Signatures in blank papers and unfilled pronotes were obtained by Hastimal Jain. A sum of Rs.1,50,000/- was borrowed from Grish kumar He is the son of Hastimal jain. Girish kumar for the said loan gave a cheque for Rs.1,00,000/- after deducting interest and brokerage. Due to economic duress, he was compelled to execute a simple mortgage deed in favour of Girish kumar. The interest shown in the mortgage deed is usurious and in violation of Tamil Nadu Money Lenders Act, 1957. The recital in the simple mortgage deed enabling the mortgagee to bring the property for sale under section 69 of the Transfer of Property Act, without the consent of the mortgagor is anti-ethical. As orally agreed, the defendant has paid Rs
