IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.10.2021

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

A.S.No.836 of 2014

Anand Kumar

...

Appellant/Plaintiff

Vs.

1.B.Varadhan

2.The Bank of India, rep. by its

Branch Manager, Erode Branch

Having Office at No.68-70,

Gandhi Road Erode

3.Authorized Officer,

Bank of India, Coimbatore Zone

Star House,

No.324, Oppanakara Street

Coimbatore

4.T.Devakumar

Son of Thangamuthu

Proprietor TDK Enterprises

S.R.Petrol Bunk Solar Town

Erode

5.T.S.Chelladhurai

6. Ezhilarasi

...

Respondents/Defendants

PRAYER: Appeal Suit filed under Section 96 of the Code of Civil

Procedure against the Judgment and Decree dated 06.09.2014 in

O.S.No.48 of 2009 on the file of the learned II Additional

District Judge, Puducherry.

For Appellant

:Mr.V.V.Sairam

For Respondent :Mr.S.Nagarajan for R.1

Mr.Benjamin George for R.2 & R.3

Mr.V.G.Suresh Kumar for R.6

R.4 & R.5 not ready in notice.

https://hcservices.ecourts.gov.in/hcservices/

JUDGMENT

The unsuccessful appellant before the Court below has

approached this Court by way of this appeal. The plaintiff had

filed a mortgage suit O.S.No.48 of 2009 on the file of the II

Additional District Judge, Puducherry for recovery of a sum of

Rs.9,43,500/- from the 1st defendant and to pass a preliminary

decree regarding the same and in default to pass a final decree

for sale of the mortgaged property and in case the sale proceeds

so ordered is insufficient, then to pass a personal decree

against the plaintiff.

2. The brief facts which has culminated in the filing of

the above 1st appeal are herein below set out:-

Plaintiff's Case:

3. It is the case of the plaintiff that the 1st defendant

who was known to him had requested him to extend a loan of a sum

of Rs.5,00,000/- for discharging his debts to the Union Bank of

India, Puducherry Branch. The 1st defendant had agreed to pay

interest and had also offered to mortgage his property which has

been described in the suit schedule. On this assurance the

plaintiff had paid a sum of Rs.5,00,000/- to the 1st defendant

who executed a simple mortgage deed dated 03.08.2004 in favour of

the plaintiff. The defendant had agreed to redeem the mortgage

within the period of 3 years from the date of execution and

registration of the mortgage deed. He had also agreed to pay

interest at 18% per annum on the sum of Rs.5,00,000/-.

4. The plaintiff would further submit that the defendant

had undertaken to hand over the original title deeds relating to

the suit schedule property as soon as he received it from the

bank. However, contrary to the assurance, the 1st defendant had

offered it as security to the Bank of India, towards the loan

availed by the 4th defendant. It appears that, the bank had

initiated proceedings against the 4th defendant, the 1st

defendant and one Daisey Rani demanding repayment of the loan and

had taken possession of the schedule mentioned property.

5. On coming to know about the same the plaintiff had

issued a legal notice to the 1st defendant and the 3rd defendant

on 07.06.2007 to which there was no reply from the 1st defendant.

The 3rd defendant had sent a reply dated 14.06.2007 stating that

the mortgage would not bind the 2nd defendant Bank and that they

had obtained an encumbrance certificate where this encumbrance

was not reflected. The plaintiff therefore issued a re-joinder

dated 20.06.2007.

https://hcservices.ecourts.gov.in/hcservices/

6. Meanwhile, the 5th defendant had filed a suit for

recovery of money against the 1st defendant on the file of the

learned Additional Subordinate Judge, Puducherry. Since the 1st

defendant remained ex-parte in the said proceedings, an ex-parte

Decree came to be passed and the 5th defendant had filed an

execution proceedings to execute the decree. The 1st defendant

did not mention about the