IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.11.2023 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA S.A.No.360 of 2021 and C.M.P.No.6698 of 2021 and 16024 of 2021 V.Valarmathi … Appellant / Plaintiff Vs

1. The Branch Manager Tamil Nadu Industrial Investment Corporation Ltd, Special Recovery Branch, D No.3-6, Vaalmeeki Street, Subramanya Nagar, Salem – 636 004.

2. K.Murugesan Parvathi (died)

3. V.Arivuselvam

4. V.Manoharan

5. P.Mangairkarasi

6. V.Jayaraman . . . Respondents/Defendants [*cause title accepted vide order of court dated 19.03.2021 made in C.M.P.No.5190 of 2021 in S.A.Sr.No.24766 of 2021]

Prayer: Second Appeal is filed under Section 100 of C.P.C against the Decree and Judgment dated 08.09.2014 made in A.S.No.17 of 2012 on the file of the learned Additional District Court, Dharmapuri confirming the judgment and decree dated 21.02.2012 made in O.S.No.30 of 2008 on the file of the Sub Court, Harur (Transferred from O.S.No.79 of 2004 on the file of the Sub Court, Dharmapuri).

For Appellant : Mr.N.Manokaran For Respondent-1 : Mr. K.Magesh For Respondent-2 : Mr.V.R.Rajasekaran For Respondents

3 to 6 : Served – No Appearance

JUDGMENT

The plaintiff, who has concurrently lost before both the Courts below, has filed this second appeal, which has been admitted on the following substantial questions of law:

“Is the judgment and decree of the first Appellate Court dated 08.09.2014 made in A.S. No. 17 of 2012 post remand is vitiated due to disregarding directives of this Court qua trial of issues post remand particularly regarding adherence to principles laid down by Hon'ble Supreme Court in Kerala Financial Corporation principle i.e., 2011 (6) CTC 554 (SC)?.

2. The facts which has led to the filing of the above second appeal are briefly set out herein below and the parties are referred to in the same ranking as before the Trial Court.

3. The plaintiff had filed the suit for the following reliefs:

(i) To declare the mortgage of schedule-A properties by Vedippan in favour of the defendants as illegal, void ab initio and unenforceable;

(ii) To declare the proposal auction sale of the Schedule-A and B properties by the defendants as void ab initio, arbitrary and illegal.

(iii) To grant permanent injunction restraining the defendants from proceeding any further against the schedule A and B properties on the basis of the impugned auction proceedings and;

(iv) To grant costs of suit to the plaintiff.

4. It is the case of the plaintiff that she and one D.Sundararajan were partners of the firm M/s.Sri Vaitheeswaran Pipes”. The firm had obtained a loan from the first defendant and had mortgaged the “B” schedule property as security. “A” schedule property is the ancestral property of Vediappan, the father of the plaintiff and he has mortgaged the property as collateral security for repayment of the said loan. It is the further case of the plaintiff that he has mortgaged the property without the consent of the other co-owners and to the derogation of their rights.

5. On 13.06.1999, Sundarrajan had died and with that, the Firm had come to an end. Since the plaintiff did not have the technical expertise to continue the business, the repayment of the loan, which was being paid regularly during the life time of D.Sundararajan, had fallen into arrears after his demise.

6. It it the case of the plaintiff that “B” schedule property is a valuable property and the proceeds from its sale would fetch sufficient income to discharge the loan. On 21.07.2001, Vediappan had died, leaving behind him surviving his wife, sons and daughters, namely defendants 4 to

7 and the plaintiff.

7. The plaintiff would submit that in the first week of May 2004, she had come to learn that the first defendant was planning to bring “A” and “B” schedule properties to sale by public auction in the last week of May 2004. No notice has been given and further the guidelines and norms set out by the Hon'ble Supreme Court in various pronouncements have also not been followed up. Therefore, the plaint