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2021 Supreme(Online)(MAD) 51169
IN THE HIGH COURT OF JUDICATURE AT MADRAS ORDERS RESERVED ON : 07.12.2021 PRONOUNCING ORDERS ON : 15.12.2021 Coram:
THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH Civil Suit No.637 of 2009 (Comm. Suit)
Integrated Finance Company Limited Rep.by its Law Officer Mr.R.Vigneshwaran Having Office at “Vairams”
No.112, Thyagaraya Road T.Nagar. Chennai 600 017.
.. Plaintiff /versus/
1.Kasthuri Renga Ramanujam Cotton Mills (P) Ltd Rep.by its Directors.
2.Mr.Kasthuri Renga Ramanujam (Deceased)
Director, Kasthuri Renga Ramanujam Cotton Mills(P) Ltd.
3.Mr.K.Radha Krishnan Director, Kasthuri Renga Ramanujam Cotton Mills(P) Ltd.
4.Ms.R.Savithri Director, Kasthuri Renga Ramanujam Cotton Mills(P) Ltd.
5.Mr.Renga Ramanujam Director, Kasthuri Renga Ramanujam Cotton Mills(P) Ltd.
All at: Chithiram Patti, Kovilpatti Tamil Nadu 628 502.
6.Mr.K.Srinivas Son of Late Kasthuri Renga Ramanajam No.171/2, Akraharam Street Nalattinputhur Kovilpatti District. ..Defendants Prayer: Civil Suit has been filed under Order XXXVII Rule of O.S.Rules r/w Order XXXIV Rule 1 of Code of Civil Procedure, praying to pass a decree and judgment against the defendants:
(a) directing the defendants jointly and severally to pay the plaintiff a sum of Rs.8,17,28,388.28 together with future interest @ 36% per annum from the date of plaint along with cost of the suit within the date to be fixed by this Hon'ble Court and in default thereof, the Schedule II mentioned property be sold and the proceeds after defraying the expenses fo the sale be applied towards the payment of the amount of the said principal and interest and costs;
(b) that, if the said proceeds shall not be sufficient for the payment in full of such amounts, the defendants may be ordered to pay the plaintiff the amount of deficiency with interest thereon @ 36% per annum until realization;
(c) that, for that purpose, all proper directions may be given and account taken by the Court;
(d) to direct the defendants to pay the plaintiff the cost of the suit;
and (e) pass such further or other orders as this Hon'ble Court may deem fit and proper inthe facts and circumstances of the case.
For Plaintiff: Mr.V.Anilkumar for M/s.Vijayalakshmi Rajagopal For Defendant : Mr.S.Mukunth for M/s.Sarvabhauman Associates for D1 to D6
J U D G M E N T
This mortgage suit has been filed by the Plaintiff against the Defendants for the recovery of a sum of Rs.8,17,28,388.28 along with interest and in default of the payment of the said amount, to bring for sale the mortgaged property and apply the proceeds of the sale towards the payment of the principal and interest.
2.The case of the Plaintiff is that they are carrying on with the business of hire purchase and leasing of machineries. During the course of their business, the first Defendant Company is said to have approached the Plaintiff for financial assistance for purchase of various machineries under hire purchase facility. Pursuant to the same, the parties had entered into five hire purchase agreements and the details of the same is extracted below:
| S.No. | Date | Hire Purchase Agreement No. | Amount Financed |
| 1. | 31.03.1998 | HPA NO. 97MAA00353 | 27,40,000/- |
| 2. | 31.03.2000 | HPA NO. 99MAA00265 | 18,17,782/- |
| 3. | 27.09.2001 | HPA NO. 01MAA00089 | 31,00,000/- |
| 4. | 18.03.2002 | HPA NO. 01MAA00151 | 17,25,000/- |
| 5. | 27.09.2002 | HPA NO. 02MAA00023 | 54,32,500/- |
3. The further case of the Plaintiff is that the Defendants defaulted and were irregular in the payment of the monthly installments. In order to secure the outstanding dues under the five hire purchase agreements, Defendants 2 and 5 are said to have mortgaged their property by means of a simple mortgage dated 30.09.2006 which was registered as Document No. 5563 of 2006. That apart, the Defendants also executed an irrevocable power of attorney dated 15.09.2006 and appointed the Managing Director of the Plaintiff Company as the agent. This document is also said to have been executed more in the nature of a security.
4.The further case of the Plaintiff is that the Defendants sought for 12 months’ time for repayment of the outstanding amount. However, the amount was not repaid and hence legal notice was issued to the Defendants and in spite of the same, the repayment was not forthcoming. As a result, the present mortgage suit has been filed.
5.The case of the Defendants is that the fourth Defendant was doing a business in the name and style of M/s. Revathi Plastics at Coimbatore. At that point of time, she had entered into a lease agreement with the Plaintiff on 11.11.1994. It is alleged that some monies became due and payable to the Plaintiff and that several documents were executed by the 3rd and 4th Defendants in order to secure the repayment. The amount was not able to be repaid and in order to clear the dues, cheques were issued by the 1st Defendant, signed by the 3rd Defendant as the director and it was issued on behalf of the said Revathi Plastics. The cheques got dishonored and it resulted in initiation of criminal proceedings U/s 138 of the Negotiable Instruments Act. During the pendency of the proceedings, the 3rd Defendant issued a Demand Draft for a sum of Rs.12,50,000/- on 28.12.2004 in favour of the Plaintiff. Thus, according to the Defendants, the entire amount due and payable to the Plaintiff stood cleared and the liability was discharged. The criminal proceedings ultimately got withdrawn in the year 2006.
6.It is pleaded in the written statement that when the third Defendant was out of town, the 2nd Defendant who is the father of the 3rd Defendant was coerced by the Plaintiff and a mortgage deed was obtained as if, there was a liability in favor of the Plaintiff from the st
1 Defendant Company.
7.The specific stand taken by the Defendants is that except the transaction that took place with the 4th Defendant pertaining to Revathi Plastics, there are no other transactions between the parties and all the 5 hire purchase agreements are fabricated and even the signatures found in the agreements are not that of the Defendants. The subsequent mortgage deed is also a void document. Hence, the Defendants have questioned the very validity of the hire purchase agreements and the mortgage deed and have denied the entire liability and sought for the dismissal of the suit.
8. Based
