Back
2025 Supreme(Mad) 4403
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.S. SUNDAR, K. RAJASEKAR, JJ.
G. Kaliasundaram - Appellant
Versus
R. Krishnamurthy - Respondent
O.S.A. No. 333 OF 2021 and C.M.P. Nos.20428 of 2021 and 13347 of 2024
Decided on : 06-01-2025
Advocate Appeared:
For the Appellant : Mr. T.V. Krishnamachari (For Mr. S.R. Varun Karthick)
For the Respondent: Mr. K. Surendar
The power of sale under Section 69 of the Transfer of Property Act is valid if properly executed, and the mortgagor cannot challenge the sale's validity unless fraud is demonstrated, which was not established here.
Headnote:(A) Transfer of Property Act, 1882 - Section 69 - Power of sale exercised by mortgagee - Validity of auction sale conducted without court intervention was upheld as due process followed and no fraud established - Plaintiff acquired property through lawful public auction, directed delivery of possession and awarded mesne profits. (Paras 3, 11, 18, 19, 26)
(B) Rights of mortgagor - Section 69(3) prevents mortgagor from disputing title post-sale, barring claims of improper conduct unless fraud is established, which was not proven in this case. (Paras 15, 18)
Facts of the case:
Plaintiff purchased mortgaged property through a public auction facilitated by the fourth defendant due to the first defendant's default on a loan. The first defendant denied the validity of the sale, claiming improper conduct of auction and lack of notice.
Findings of Court:
Sale was conducted in compliance with the legal provisions, confirming the auction's validity. Defendants failed to provide evidence against the validity of the sale.
Issues: Court examined whether the auction was valid under Section 69 of the Transfer of Property Act and the entitlement of the plaintiff to possess the property and receive mesne profits.
Ratio Decidendi: The court held that the power of sale was valid, and procedural lapses, if any, did not constitute fraud, thus upholding the auction and confirming the plaintiff's rights.
Result: Appeal dismissed; judgment and decree of the lower court upheld.
| Table of Content |
|---|
| 1. context of property ownership and sale. (Para 1 , 2 , 3) |
| 2. issues framed based on evidence. (Para 4 , 5) |
| 3. arguments of the parties regarding the auction. (Para 6 , 7 , 8) |
| 4. power of sale under transfer of property act. (Para 9 , 10 , 11) |
| 5. court's examination of procedural aspects under the law. (Para 12 , 17 , 18) |
| 6. procedural validity of public auction. (Para 14 , 15 , 16 , 19 , 20) |
| 7. conclusion on possession and mesne profits. (Para 21) |
| 8. determining mesne profit. (Para 22 , 23) |
| 9. final order of the appeal. (Para 26) |
JUDGMENT :
K.Rajasekar, J.
This original side appeal is filed challenging the judgment and decree passed in C.S.No.122 of 2007, dated 12.02.2007, wherein the learned Single Judge has ordered delivery of possession and payment of mesne profits.
2. The case of the plaintiff is as follows:
2.1 The suit properties belongs to the first defendant as per the sale deed dated 16.10.1970. The defendants 2 and 3 are sons of the first defendant, who jointly borrowed loan from the defendant 4 and as a security for the loan repayment, the suit property was mortgaged by the defendants 1 to 3 and executed two registered mortgaged deeds dated 02.07.1996 and 17.06.1997. Since the defendants 1 to 3 failed to redeem the mortgage loan, the 4th defendant by exercising the powers under Section 69 of Transfer of Properties Act, sold the property in favour of the plaintiff by public auction, taken place by engaging M/s. Alwin and Co as per auction sale dated 02.12.2006, in which the plaintiffs have paid Rs.1,53,00,000/- as sale consideration.
2.2 After completion of the sale, the plaintiff informed the same to the defendants 1 to 3. In the mean time, defendants 1 to 3 have also filed suit for permanent injunction in O.S. No.1040 of 2005 before the IV Additional City Civil Court, Chennai, seeking injunction against the plaintiff, subsequently, the same was dismissed as infructuous. Since defendants 1 to 3 continued their possession and have not come forward to hand over the properties, the plaintiff has come forward to file a suit for delivery of possession and also for payment of Rs.30,000/- per month as rent for illegal action of staying and possession of suit property by the defendants 1 to 3.
3. The first defendant filed a written statement and admitted borrowal of loan from the fourth defendant by deposit of title deeds. The first defendant was regularly repaying the monthly installments, but that was not properly accounted by the fourth defendant. The auction sale was conducted without proper procedure or giving proper opportunity to the first defendant. The sale consideration also not properly fixed, the fourth defendant and the plaintiff were aware about the pendency of the suit before the City Civil court and with a view to snatch the properties, the sale deed has been executed in favour of the plaintiff by illegal means by the fourth defendant. The auction has not been properly conducted, thereby the sale is not valid and prays to dismiss the suit.
4. Based on the pleadings, the following issues were framed by the learned Single Judge.
"1. Whether the plaintiff is entitled for the recovery of possession of the suit property from the defendants 1 to 3?
2. Whether the sale deed executed by the 4th defendant in favour of the plaintiff pursuant to the auction conducted by its agent M/s.Alwin & Company is in any manner affected by the alleged suit in O.S.No.1440 of 2000 on the file of the IV Assistant Civil Court, which is no longer pending?
3. Whether the plaintiff is entitled to the relief of mesne profits calculated at Rs.30,000 p.m. in view of the unlawful enjoyment of the suit property by the defendants 1 to 3?
4. Whether the plaintiff is entitled for the costs of this suit?
5. To what reliefs is the plaintiff entitled to?"
5. On the side of the plaintiff, P.W.1 was examined and Exs.P.1 to P.7 were marked. On the side of the defendants, first defendant filed proof affidavit and no oral and documentary evidence was produc
