Alwarpet Benefit Fund Ltd v. Smt. G.Padma And 16 Others
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22 / 09 / 2016
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA C.S.NO.736 OF 1998 Alwarpet Benefit Fund Ltd., Rep. By its Commissioner Justice A. Raman (Retired Judge) High Court, Madras.
Having office at Old No.75, New No.40, C.P.Ramasamy Road, Alwarpet, Chennai - 18.
(Amended as per order dated 04.01.2016 in Application No.5988 / 2015 and time extended as per order dated 29.04.2016) ..
Plaintiff
Versus
1.G.Padma 2.V.Gunasundari 3.K.Indrani 4.M.Maragatham 5.M.Sivagami 6.G.Kalaiselvi (Defendants 1 to 5 rep. By their Power Agent Mr.M. Palani) 7.M.Palani 8.P.Chandru 9.S.Chandrasekhar 10.Sri Suresh Kumar Poddar, D.
11.N.Ananda Kumar 12.Amruthavalli 13.P.Mohan 14.Geetha 15.P.Chandrasekharan
16.G.Abbas 17.Muthumeenakshi ..
Defendants PRAYER: Plaint filed under Order IV Rule 1 and Order XXXVII of the Original Side Rules, 1956 read with Order VII Rule 1 CPC and Order XXXIV Rule 4 and 15 of the Code of Civil Procedure praying for a judgment and decree against the defendants for the following:
a) directing the defendants to pay the plaintiff a sum of Rs.42,31,638.23 together with subsequent interest at 28% per annum from the date of plaint till the date of realisation together with the costs of this suit within a time to be fixed by this Court and in default, the plaintiff may be permitted to bring the property, more fully described in the schedules "A" and "B" hereunder, to be sold and the proceeds, after defraying throughout the expenses of the sale, applied in and towards the payment of the amount of the said principal, interest and costs;
b) that if such proceeds shall not be sufficient for the payment in full of such amount, the defendants 1 to 8 may be ordered to pay the plaintiff the amount of the deficiency with interest thereon at 28% per annum until realization;
c) that for that purpose, all proper directions may be issued by this Court; and d) to grant such other suitable reliefs.
For Plaintiff :
Mr.R.Bharathkumar For Defendants :
Set exparte on 18.11.2014
J U D G M E N T
The plaintiff is a Benefit Fund Limited administered by the Court appointed Commissioner. The defendants 1 to 6 are the owners of the suit "A" Schedule property represented by their Power Agent, the seventh defendant herein, under the registered Power of Attorney dated 08.02.1993. The seventh
defendant, as Power Agent, approached the plaintiff for a project loan by offering the "A" Schedule property as security and necessary documents were also produced by the seventh defendant. The project was to develop the property by constructing flats and sell the same and with the sale amount to discharge the loan taken. The eighth defendant is the son of the seventh defendant and he had also volunteered to give the Schedule "B" property as additional security which was standing in his name. Based on the above securities, a sum of Rs.13 Lakhs was sanctioned and disbursed in three stages to the seventh defendant on behalf of his members. The eighth defendant also created a mortgage by depositing the title deeds and executed three promissory notes.
2. It is stated that by making use of the project loan amount, construction was put up in the "A" Schedule property. However, the borrowal was not settled as promised. The seventh defendant gave a letter on 01.02.1994 acknowledging the loan availed towards the first instalment and further disbursement by the plaintiff was acknowledged by the seventh defendant on 24.02.1994. The defendant also gave a cheque for Rs.9613.35 dated 05.04.1994 and another cheque for Rs.7210.00 dated 07.04.1994, however, those cheques were dishonoured. The seventh defendant had been irregular in making
payments. Therefore, the plaintiff sent a letter of demand dated 03.06.1994 and also sent a telegram dated 14.06.1994.
3. In the meanwhile, to the shock and surprise of the plaintiff, the seventh defendant had sold the undivided share of "A" schedule property, which is the subject matter of mortgage, to various third parties. The said alienees of "A" schedule property are the defendants 9 to 17. When the originals of the documents of title was deposited with the plaintiff, the defendants 9 to 17 had purchased the property, even without seeing the original or without insisting to see the original documents, which shows the lack of bonafide in their purchase. The registered letters sent by the plaintiff to the eighth defendant and the defendants 9 to 17 calling upon them to settle the amount due under the mortgage were not responded with a proper reply. As on date, the suit has been filed for recovery of Rs.42,31,638.23 together with interest, being the outstanding as on the date of suit.
4. Despite service of notice, the defendants have not made their appearance either in person or through counsel and not filed written statement hence, they were set exparte on 18.11.2014.
5. The plaintiff had produced Exs.P1 to P68 to evidence the transactions between the plaintiff and the defendants.
6. On a perusal of the above documents, it is seen that the debt had been acknowledged by the seventh defendant as Power Agent on various dates, and the cheques issued by the seventh defendant were dishonoured on 19.09.1995 and the cheques were represented on 30.10.1995. The suit has been filed within the period of limitation and the suit claim is proved from the statement of accounts filed by the plaintiff.
7. Accordingly, the defendants 1 to 8 are directed to pay the plaintiff a sum of Rs.42,31,638.23 together with interest at the rate of 12% per annum on the principal sum adjudged from the date of filing of the suit, to the date of decree, that is, pendente lite. Interest from the date of decree, till the date of realisation i.e., future interest or further interest is also fixed at the rate of 6% per annum. In default, the plaintiff is permitted to bring the property, more fully described in the schedules "A" and "B" for sale. If such proceeds are not sufficient for the payment, the defendants 1 to 8 are directed to pay the plaintiff the amount of the deficiency with interest thereon at 12 % per annum until realization. The suit is decreed in the above terms. No costs. 22 / 09 / 2016 Index : Yes/No Internet : Yes/No TK
LIST OF DOCUMENTS MARKED ON THE SIDE OF THE PLAINTIFF Sl.No. Exhibits Description of documents Date P-1 Authorization letter 08.12.2014 P-2 Registered power of attorney 08.02.1993 P-3 Promissory note 13.01.1994 P-4 Letter given by the 7th defendant 13.01.1994 P-5 Letter from the 7th defendant 01.02.1994 P-6 Promissory note 05.02.1994 P-7 Letter from the 7th defendant to the plaintiff 24.02.1994 P-8 Report 01.03.1994 P-9 Promissory note 07.03.1994 P-10 Letter from the 4th defendant depositing title deeds 07.03.1994 P-11 Letter 07.03.1994 P-12 Office copy of letter from the plaintiff to the 7th defendant 20.04.1994 P-13 Letter from 7th defendant 25.04.1994 P-14 Office copy of letter from the plaintiff to the 7th defendant 03.06.1994 P-15 Office copy of letter from the plaintiff to the 7th defendant 31.01.1995 P-16 Postal acknowledgment 03.
02.1995 P-17 Office copy of letter from the plaintiff to the 7th defendant 30.08.1995 P-18 Postal acknowledgment 01.09.1995 P-19 Office copy of letter from the plaintiff to the 7th defendant 09.09.1996 P-20 Office copy of letter from the plaintiff to the 7th defendant 27.11.1996 P-21 Office copy of letter from the plaintiff to the 9th defendant 13.04.
Sl.No. Exhibits Description of documents Date P-22 Office copy of letter from the plaintiff to the 10th defendant 13.04.1998 P-23 Returned cover - P-24 Office copy of letter 13.04.1998 P-25 Returned cover - P-26 Office copy of letter from the plaintiff to the 12th defendant 13.04.1998 P-27 Postal acknowledgment - P-28 Office copy of letter from the plaintiff to the 13th defendant 13.04.1998 P-29 Office copy of the letter from the plaintiff to the 14th defendant 13.04.1998 P-30 Office copy of the letter from the plaintiff to the 15th defendant 13.04.1998 P-31 Returned cover - P-32 Office copy of letter from the plaintiff to the 16th defendant 13.04.1998 P-33 Returned cover - P-34 Office copy of letter 13.04.1998 P-35 Office copy of letter 18.04.1998 P-36 Postal acknowledgment 27.04.1998 P-37 Office copy of letter 18.04.
1998 P-38 Postal acknowledgment 27.04.1998 P-39 Letter from the 17th defendant to the plaintiff 30.04.1998 P-40 Reply from the counsel for the 13th defendant 18.05.1998 P-41 Office copy of rejoinder by the counsel for the plaintiff 26.05.1998 P-42 Original sale deed 27.06.1957 P-43 Original registered will 19.04.1962 P-44 Encumbrance certificate 13.11.
Sl.No. Exhibits Description of documents Date P-45 Encumbrance certificate 13.12.1972 P-46 Encumbrance certificate 12.12.1972 P-47 Encumbrance certificate 18.04.1977 P-48 Encumbrance certificate 06.10.1981 P-49 Encumbrance certificate 25.05.1990 P-50 Encumbrance certificate 15.10.1993 P-51 Builders agreement 06.02.1993 P-52 Photo copy of approved building plan - P-53 Legal heir certificate 08.03.1993 P-54 Patta 24.09.1981 P-55 Photo copy of encumbrance certificate - P-56 Photo copy of encumbrance certificate 15.01.1994 P-57 Encumbrance certificate - P-58 Photo copy of sale deed 27.10.1986 P-59 Photo copy of sale deed 02.02.1987 P-60 Original sale deed 09.10.1992 P-61 Original construction agreement 09.10.1993 P-62 Photo copy of encumbrance certificate 06.01.1994 P-63 Photo copy of planning permit 17.07.1987 P-64 Photo copy of planning permit 06.04.1988 P-65 Photo copy of valuation certificate / report 10.01.1994 P-66 Encumbrance certificate 11.11.1997 P-67 Encumbrance certificate - P-68 Statement of accounts 14.08.1998
PUSHPA SATHYANARAYANA, J.
TK C.S.NO.736 OF 1998 22 / 09 / 2016