J U D G M E N T

This Appeal Suit is filed against the judgment and decree of the trial Court in the suit filed for recovery of money towards the goods sold and delivered and secured by three simple mortgages in respect of the suit property executed by the defendants 1 to 3 on 08.06.1989, 22.03.1989, 18.07.1991 respectively.

2. The short point involved in this appeal is that the 1st respondent was distributor of Electron Brand Fluorescent tubes, Lamps and Fittings. They appointed the appellant as their retail seller of the products and supplied goods on credit. As a security for the goods sold and delivered, the appellant mortgaged the suit property initially for a sum of Rs.1,00,000/- on 18.06.1989; subsequently for a sum of Rs.50,000/- on 22.03.1989 and for a sum of Rs.1,38,000/- on 18.07.1991. As per the plaint, on the date of filing the suit, the defendants 1 to 3 paid only a sum of Rs.32,803/-. Suppressing the factum of mortgage, they sold the property to the 4th defendant. Having coming to know about that, the plaintiff has caused notice to the defendants 1 to 4 on 09.11.1992. However, the notice did not evoke any action on the defendants.

Hence, the suit was laid.

3. Earlier the suit was filed before the Sub Court, Poonamallee and the same has been numbered as O.S.No.577 of 1999, later it was transferred to Fast Track Court, Chengalpattu and renumbered as O.S.No.491 of 2004.

4. The plaintiff prayed for the following relief in the said suit:-

“1.To pass a preliminary decree on directing the defendants to pay a sum of Rs.8,33,203/- within the date fixed by this Hon'ble Court.

2.To pass final decree in case of default in payment of the amount within the time fixed by the Court direct to sell the plaint schedule property in public auction for the satisfaction of the decree amount.

3.Direct the defendants to pay the cost of the suit and

4.pass such other order orders as this Hon'ble Court deems fit and proper and render justice.”

5. The defendants 1 to 3/the principal borrower and guarantors for the mortgage remained exparte before the trial Court, the subsequent purchaser, the 4th respondent herein alone contested the suit by filing written statement. In the written statement, the 4th respondent had doubted the genuineness of the mortgage deed alleged to have been agreed entered by his vendors in favour of the plaintiff and also pleaded that he is a bonafide purchaser for the valuable consideration without knowledge about the mortgage, therefore, the suit is not maintainable as against him.

6. The trial Court framed the following issues based on the pleadings:

“1. Whether the suit filed within the period of limitation?

2. Whether the 4th defendant a bonafide purchaser for valuable consideration without prior knowledge of the mortgage?

3. Whether the plaintiff is entitled for a preliminary decree as prayed?

4. What relief the plaintiff is entitled?”

7. On behalf of the plaintiff one Bhavanishankar was examined as PW.1. He is the Director of the plaintiff's company. Six exhibits were marked in support of the suit claim. On behalf of the defendants, the 4th defendant was examined as DW.1 and nine exhibits were marked.

8. The trial Court after perusing the sale deed (Ex.A.6) relied by the 4th defendant to establish himself as a bonafide purchaser and encumbrance certificates-Ex.A.5 and Ex.B.4 to Ex.B.6 held that the 4th defendant is not a bonafide purchaser, he has not vigilantly scrutinized the title documents before he purchased. Further, the trial Court has also took exception on the conduct of the 4th defendant, for challenging the validity of the mortgage deeds Ex.A1 to Ex.A3, to which he had no personal knowledge.

9. Being aggrieved by the judgment and decree, the present appeal is filed on the ground that the 4th defendant purchased the suit property on 03.01.1992 being fully satisfied that there was no encumbrance over the property. The original title deed of the property was not in possession of his vendor and she has given a public noti