C.R.P.No.586 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.11.2022

CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

C.R.P.No.586 of 2022

and

C.M.P.No.3060 of 2022

1.Malini @ Leela

2.Meenakshi

3.S.Sri Venkatesh

... Petitioners

vs

S.Sengalvarayan

... Respondent

Prayer: Civil Revision Petition is filed under Article 227 of the Constitution

of India, praying to set aside the Order dated 22.10.2021 passed in I.A.No.1

of 2020 in O.S.No.39 of 2019 on the file of the Principal District Judge at

Perambalur and allow the application.

For Petitioners

: Mr.S.Sadasharam

For Respondent

: Mr.R.Venkatesulu

for Mr.Usha Ramman

ORDER

The Civil Revision Petition is filed challenging the order passed by the

Court below dismissing the application filed by the defendants seeking to

reject the plaint under Order 7 Rule 11(a) and (d) of Code of Civil Procedure.

2. The respondent herein filed a suit for recovery of Rs.83,97,914/-

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C.R.P.No.586 of 2022

against the petitioners towards their share of contribution regarding the

mortgaged debt discharged by him on 26.06.2015. According to the

respondent/plaintiff, the husband of the 1^st petitioner and father of the

petitioners' 2 and 3 viz., Samiyappan who is the brother of the respondent

availed the loan from Punjab National Bank by mortgaging the joint family

property. When the said Samiyappan committed default, the Bank had taken

coercive steps against the mortgaged family property and in order to save the

family property, the respondent/plaintiff discharged the entire outstanding

loan amount in the name of Samiyappan to the tune of Rs.61,30,000/- with

interest and redeemed the family property. The respondent in his plaint had

averred that the payment made by the respondent to bank to save the family

property was known to the petitioners and as they failed to pay their share of

the said loan amount discharged by the respondent, he was constrained to file

a suit against the petitioners for recovery of their share of discharged loan

amount together with interest.

3. The petitioners/defendants filed an application for rejection of the

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C.R.P.No.586 of 2022

plaint by raising the plea of limitation and non-joinder of necessary parties

viz., the other sharers. According to the petitioners, the respondent discharged

the mortgaged debt by paying amount due in the name of Samiyappan on

05.05.2015 and the present suit has been filed only on 31.07.2019 well

beyond the limitation period of three years. It was also submitted that the suit

is a simple suit for recovery of money and the suit claim cannot be treated as

an amount due under the mortgage and therefore, the question of applying

twelve years limitation period does not arise. Therefore, it is the contention of

the learned counsel for the petitioners the suit is barred by limitation. It is

further submitted by the learned counsel for the petitioners that the

respondent claimed in the plaint averment that they had paid the amount due

to the Panjab National Bank and hence, the said Bank is a necessary party to

the litigation. It was further submitted that another brother of

respondent/plaintiff viz., Thanigaivel was also a partner of business, which

was carried out by deceased Samiyappan and hence, he is also a necessary

party to the suit. In nutshell, it is the contention of the learned counsel for the

petitioners, the suit is bad for non-joinder of necessary parties viz., Bank and

other sharers.

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C.R.P.No.586 of 2022

4. The learned counsel for the respondent submitted that the

respondent/plaintiff discharged the mortgaged debt in the name of deceased

Samiyappan under whom the petitioners are claiming right. The learned

counsel by relying on Sections 92 and 100 of the Transfer of Property Act,

1882 submitted that on discharge of mort