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IN THE HIGH COURT OF JUDICATURE AT MADRAS
KRISHNAN RAMASAMY, J.
Deenadayalan – Appellant
Versus
N. Sathish Kumar Rep. by his General Power of Attorney N. Ashok Kumar – Respondent
S.A. Nos. 1022, 1055 of 2019, 160, 161 of 2021, Cross Appeal No. 54 of 2020, C.M.P. Nos. 21997, 22772 of 2019
Decided On : 30-03-2021
Transfer of Property Act - Section 58 (f) - Recovery of Debt dues to Banks and Financial Institution Act, 1993 - Sections 17 and 18 - Bar of Jurisdiction - Suit claim of plaintiff to 2/3rd and in modifying the judgment and decree – Agricultural land - Whether there could be a creation of equitable mortgage with Xerox Copy of a particular document - plaintiff filed suit to declare sale of 1st suit schedule property by the 6th defendant through the public auction as null and void and not binding on the plaintiff. The plaintiff also sought for partition of 1st suit schedule property. Apart from the above, the plaintiff also alleged fraud against the 5th defendant Bank. A plea also made in the suit with regard to authority of mortgagor to mortgage entire suit schedule property, for the third party loan. Obviously all these issue are not the matters as specified in Section 17 of the Act, thus same cannot be adjudicated by DRT – Held, Finding of Lower Court to recognise the auction sale said to have held on 31.12.2008 under Ex.B4 after coming to the conclusion that decree and the sale was made against dead person, is not proper and the said finding is set aside. Accordingly, both the substantial question of law are answered in favour of plaintiff - Court feels that it would be appropriate to compensate the innocent purchaser and direct 5th defendant/Bank to refund a sum of Rs. 8,50,000/- the amount paid by 4th defendant in auction sale. Hence, 5th defendant/Bank is directed to refund a sum of Rs. 8,50,000/- amount paid by the 4th defendant to purchase the property through auction sale from 5th defendant Bank, with 9% interest from date of payment till date of refund to the 4th defendant - Order accordingly.
JUDGMENT :
KRISHNAN RAMASAMY, J.
1. S.A. No. 1022 of 2019 has been filed by the 4th defendant/Auction Purchaser in the suit challenging the common judgment and decree dated 11.04.2018 made in A.S. No. 5 of 2017 on the file of the District Judge, Udhagamandalam, The Nilgiris.
2. The plaintiff in the suit has filed the Cross Appeal No. 54 of 2020 in S.A. No. 1022 of 2019 challenging the common judgment and decree dated 11.04.2018 made in A.S. No. 5 of 2017 on the file of the District Judge, Udhagamandalam, The Nilgiris, in restricting the suit claim of the plaintiff to 2/3rd and in modifying the judgment and decree dated 09.11.2016 made in O.S. No. 35 of 2010 on the file of the Sub-Judge, Udhagamandalam.
3. S.A. No. 1055 of 2019 has been filed by the 4th defendant challenging the common judgment and decree dated 11.04.2018 made in the Cross Appeal No. 5 of 2017 on the file of the District Judge, Udhagamandalam, The Nilgiris.
4. S.A. Nos. 160 and 161 of 2021 has been filed by the 5th defendant in the suit challenging the common judgment and decree dated 11.04.2018 made in Cross Appeal No. 5 of 2017 and in A.S. No. 5 of 2017 on the file of the District Judge, Udhagamandalam, The Nilgiris.
5. There are four appeals and one cross appeal have been filed by either of the parties to the suit against the common judgment and decree passed in A.S. No. 5 of 2017 and Cross Appeal No. 5 of 2017 by the District Judge, Udhagamandalam. Therefore, this Court would like to take up S.A. No. 1022 of 2018 and Cross Appeal No. 54 of 2020 first and dispose of the same.
6. The appellant in S.A. No. 1022 of 2019 and S.A. No. 1055 of 2019 would be referred herein after as appellant or 4th defendant. The cross objector in Cross Appeal No. 54 of 2020 would be referred herein after as plaintiff or cross-objector.
7. The appellant in S.A. Nos. 160 and 161 of 2021, would be referred herein after as 5th defendant or the 5th respondent or the Bank. All other parties to these second appeals would be referred with the same status as referred in the suit before the Trial Court.
8. Before dealing with the main issue, it would be appropriate to narrate the fact of the case, briefly as follows:
8.2. On 17.10.2002, the plaintiff entered into a sale agreement with L. Srikantiah and his two sons to purchase 1.05 acres of agricultural land out of the 1.16¼ acres. On 21.10.2002, L. Srikantiah along with his two son delivered the possession of the said land to the plaintiff. Subsequently, they have also executed a sale deed dated 17.02.2003, in favour of the plaintiff. Thereafter, L. Srikantiah along with his sons, defendants 1 and 2 sold 4¾ cent of land to the 3rd defendant and L. Srikantiah retained the balance 6.5 cents with himself.
8.3. After the purchase of the suit schedule property, the plaintiff has been cultivating the land continuously. The plaintiff used to cultivate, carrot, potato, beetroot etc.
8.4. When the matter stand thus, the 4th defendant in the suit who is an utter stranger to the property had come to Adasholai on 28.02.2010 claiming to have purchased the suit 2nd schedule property by virtue of the public auction sale conducted by the 6th defendant, Recovery Officer. According to the 4th defendant, the auction was conducted by the 6th defendant and through the said auction, the 2nd suit schedule property was purcha
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