JUDGMENT :

G. JAYACHANDRAN, J.

Prayer: Appeal Suit has been filed under Section 96 and Order 41 Rule 1 of C.P.C. praying to set aside the decree and judgment dated 31.12.2007 passed in O.S. No. 4674 of 2005 on the file of Fast Track Court-III, Chennai and consequently, dismiss the suit as against the appellant.

1. The appeal is directed against the preliminary decree passed by the trial Court in the suit for recovery of money lend on mortgage.

2. The facts of the litigation leading to the first appeal is that, the defendants, who are husband and wife, borrowed a sum of Rs. 4,28,000/- from the plaintiff on 12.04.2001 to meet their family expenses and agreed to pay interest at the rate of 24% p.a. As security, they executed a registered mortgage deed in respect of land and building allotted to the first defendant by the Tamil Nadu Housing Board (TNHB) on payment entire costs. No due certificate issued by Housing Board was handed over to the plaintiffs. Ever since the date of mortgage, the defendants did not pay any interest or principal or part thereof. Hence, notice was issued to the defendants on 21.08.2001. After receiving the notice, the defendants met the plaintiffs personally and promised to clear the debt within one year. Contrary to their oral assurance, they failed to clear the debt within the time granted. Again, the plaintiffs issued notice on 08.03.2005 for which the defendants came out with reply denying the liability. Hence, the suit.

3. The defendants contesting the suit stated that the suit is not maintainable before the Court at Chennai, since the transactions took place at Dindigul. They are permanent resident of Uthamapalyam, Theni District. They were introduced to the plaintiffs by a broker, when they wanted finance to meet their school building construction. The said broker, who arranged loan for 9 teachers working in the defendants school with one Navasuriya Finance, K.K. Patti, on condition the loan to be paid from the monthly salary of those teachers, has so far collected Rs. 3,83,429/- from the defendants. The plaintiffs are partners of the said Navasuriya Finance. The blank cheques given as security for the loan were misused by the plaintiffs and criminal complaints under Section 138 of the Negotiable Instruments Act instituted at Judicial Magistrate Court, Uthamapalayam. In the said circumstances, the mortgage deed was obtained from them by coercion without passing of any consideration. The issuance of notice dated 21.08.2001 was denied. The defendants disown the reply notice dated 22.04.2005 issued on their behalf. If the mortgage deed is valid and true, the plaintiffs ought to have resorted to sale under Section 69 of the Transfer of Property Act, 1882 and not a suit for recovery of money. The suit property was sold to one Panneerselvam on 22.11.2004.

4. The said Panneerselvam was impleaded as the 3rd defendant and he in his written statement contended that, he is a bona-fide purchaser for valuable consideration. He purchased the property, after due diligence of verifying the encumbrance certificate and title document issued by the Tamil Nadu Housing Board. The alleged mortgage deed relied by the plaintiffs is not valid, since it was created even before defendants 1 and 2 derived title over the property.

5. The trial Court framed the following issues for consideration:

(1) Whether this Court has jurisdiction to try this suit?

(2) Whether the plaintiffs' are entitled to a preliminary decree for recovery of Rs. 8,64,560/- with interest at the rate of 24% p.a. from the defendants on the basis of alleged mortgage deed executed by the defendants and for consequential reliefs as prayed for in the plaint?

(3) Whether the plaintiff's has obtained the alleged mortgage deed dated 12.04.2001 by means of threat, undue influence and coercion and hence, invalid in law?

(4) Whether the 3rd defendant is liable to pay the mortgage debt?

(5) To what relief the plaintiffs are entitled?

6. On behalf of the plaintiffs, one witness wa