Shree Vari Villas Pvt.Ltd. v. Nalini Sundararaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.10.2021
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN C.S. No.654 of 2014 M/s.Shree Vari Villas Private Limited, (Amended as per order dated 12.08.2020 in A.No.1620 of 2020) Regd. Office at G-3, 9/6, Pasumarthi Street, Kodambakkam, Chennai 600 024, Rep. by its Managing Director, Mr.P.Sukumaran.
... Plaintiff -Versus1.Nalini Sundararaman Flat No.3, Shoba Regency, Old No.58, M.G.Ramachandran Road, Kalashetra Colony, Besant Nagar, Chennai 600 090.
2.S.Sundararaman, Flat No.3, Shoba Regency, Old No.58, M.G.Ramachandran Road, Kalashetra Colony, Besant Nagar, Chennai 600 090.
3.Madan Chander, Flat No.3, Shoba Regency, Old No.58, M.G.Ramachandran Road, Kalashetra Colony, Besant Nagar, Chennai 600 090.
... Defendants Prayer: Civil suit filed under Order 37 Rule 2 of Civil Procedure Code, 1908 with Order IV Rule 1 of O.S.Rules, praying for the following
judgment and decree a) directing the defendants to pay to the plaintiff a sum of Rs.8,06,32,065/- (Rupees Eight Crores Six Lakhs Thirty Two Thousand and Sixty Five only) together with contractual rate of interest thereon at the rate of 30% p.a. as agreed upon by the defendants from the date of plaint till the date of realization.
b) for costs of the suit.
For Plaintiff : Mr.G.B.Sabari Das For Defendants : Exparte
J U D G M E N T
The suit for recovery of money based on the promissory note executed by the defendants. The suit is filed as summary suit under Order 37 Rule 2 of C.P.C.
2.The defendant though entered appearance through counsel sought leave to defend and the same was granted. Thereafter, they did not show any interest in filing written statement and contest the matter and therefore, on 16.10.2020, after nearly three years for the defendant to file his statement and 6 years after institution of the suit, the defendants were set exparte and exparte evidence recorded. Before the learned Master, Mr.V.Karthick, the Chief Accountant of the plaintiff Company
has been examined as P.W.1, 30 documents were marked as Exs.P1 to P30.
3.The gist of the plaintiff case as stated in the plaint is that the plaintiff is in the business of promoting real estate. Mr.S.Ravichandran, who was the Managing Director of the plaintiff Company in his individual capacity entered into agreement with the first defendant for purchase of a landed property at Kumbakonam for developing the same as apartment. Since the Encumbrance Certificate from the Sub Registrar Office, Kumbakonam did not reflect any encumbrance, he entered into an agreement bonafidely with the first defendant on 15.05.2010 for purchase of the said land for a sale consideration of Rs.4.27 crores and paid Rs.2.40 crores as advance to the first defendant. Later, when he intended to get the property registered in his name, he came to know that the first defendant had already created mortgage in favour of M/s.
Raja Holdings, Financiers and Merchants of Kumbakonam and others in respect of a property at Kumbakonam and Sriperumpudhur and got mortgage deed registered at Sriperumpudur, Sub Registrar Office. This fact was not disclosed by the first defendant to Mr.Ravichandran when he entered into agreement on 15.05.2010.
cleared from mortgage and to get along with the project at Kumbakonam, the plaintiff has come forward to clear the mortgage debt created in favour of M/s.Raja Holdings and another. Accordingly, a sum of Rs.9.75 crores was paid to the mortgagee and the encumbrance was cleared. Not stopping with that, it was later brought to the notice of the plaintiff that the first defendant has also created another encumbrance over the property by entering into an MOU for joint venture with one Radhakrishnan and had received Rs.2 crores. In such circumstances, mediation took place between the parties and all other stake holders. The value of the property at Karaikal Road, Kumbakonam was fixed as Rs.4.50 crores and Radhakrishnan, who had already advanced Rs.2 crores agreed to get back his money and release the encumbrance in that property.
The defendants in turn agreed to execute the sale deed in favour of the plaintiff and requested to sell the property to any third for settling the dues to Mr.Radhakrishnan and others. In the said course of the transaction and as the result of the mediation, consensus was arrived at between the parties. Minutes of the meeting dated 19.08.2011 was reduced in writing to the effect that there would be regular interest waiver of Rs.25 lakhs of the outstanding Rs.9.75 crores payable to M/s.Raja Holdings, Financiers and Merchants of Kumbakonam and G.
Kalpana of Chennai. The other landed properties of the defendants which was also encumbered by way of mortgage were supposed to be made over in favour of the plaintiff besides release of Dr.Besant Road properties and Karaikal Road properties at Kumbakonam.
4. It is the case of the plaintiff that after carrying out the terms of the compromise and MOU entered between the defendants and the plaintiff, a sum of Rs.6,41,42,231/- and Rs.1,64,89,834/- remains payable as per the memo of calculation shown in paragraph 19 of the plaint. For clarity, the same is extracted below:
MEMO OF CALCULATION SCHEDULE-"A"
DATE DESCRIPTION DEBIT CREDIT 01.09.2011 PRINCIPAL AMOUNT 40000000 30.09.2011 INTEREST FOR SEPTEMBER 2011 1000000 INTEREST PAID FOR SEPTEMBER 1000000 30.09.2011 INTEREST FROM 1.10.2011 TO 30.09.2012 12483466 08.10.2012 INTEREST FROM 1.10.2012 TO 08.10.2012 266666 08.10.2012 REMITTED BY KOTAGIRI PROPERTY
SALES 8000000 TOTAL 53750132 9000000 BALANCE AS ON 08.10.2012 44750132 INTEREST FROM 09.10.2012 TO 08.08.2013 08.08.2013 12533820 INTEREST FROM 09.08.2013 TO 18.08.2013 18.08.2013 372917 18.08.2013 REMITTED BY KOVALAM PROPERTY SALES 12222000 Total 57656869 12222000 BALANCE AS ON 18.08.2013 45434869 INTEREST FROM 19.08.2013 TO 18.08.2014 18.08.2014 15669968 INTEREST FROM 19.08.2014 TO 27.08.2014 27.08.2014 492221 EXPENSES FOR MORTGAGE DEED ETC 184897 COMMISSION FOR KOVALAM PROPERTY 1000000 BALANCE AS ON 27.08.2014(Sch-"A") 62781955 INTEREST FROM 28.08.2014 TO 22.09.2014 1360276 Total claim of schedule "A"
64142231 SCHEDULE-B 01.09.2011 BALANCE TO RAJA HOLDINGS 60000000 01.09.2011 PAID FOR BESANT ROAD PROPERTY 18700000 01.09.2011 PAID FOR KARAIKAL ROAD
PROPERTY 21000000 Total 60000000 39700000 BALANCE AMOUNT 20300000 INTEREST FROM 01.09.2011 14.06.2012 TO 14.06.2012 4660541 14.06.2012 REMITTED BY THODKADU PROPERTY SALES 17000000 Total 24960541 17000000 BALANCE AS ON 14.06.2012 7960541 INTEREST FROM 15.06.2012 TO 14.08.2014 14.08.2014 7166816 INTEREST FROM 15.08.2014 TO 27.08.2014 27.08.2014 112774 COMMISSION FOR THODUKADU PROPERTY 800000 EXPENSES FOR MORTGAGE DEED ETC 100000 BALANCE AS ON 27.08.2014(Sch."B") 16140131 INTEREST FROM 28.08.2014 TO 22.09.2014 349703 Total Claim of Schedule "B"
16489834 TOTAL CLAIM FROM THE DATE OF PLAINT ["A"+"B" TOGETHER WITH INTEREST @ 30% P.A] 80632065
5.It is further case of the plaintiff that the cause of action has arisen within the jurisdiction of this Court in the following manner: "21.The cause of action arose within the jurisdiction of this Hon'ble Court at Chennai, where the defendants resides, on 11.05.2009 the date on which the defendants executed and registered two simple mortgage deeds in favour of M/s.Raja Holdings and G.Kalpana (which was suppressed by the defendants later on and also not revealed in the encumbrance certificate), on 15.05.2010 the date entered agreement of sale for the Besant Road property on 19.01.2011 the date on which the said Mr.S.Ravichandran given undertaking to clear the Besant Road property from the mortgage besides the advance payments, which was accepted by the defendants, on 09.03.2011 the date on which the said Mr.S.
Ravichandran nominated the plaintiff for getting sale deed for the Besant Road, Kumbakonam property, on 11.03.2011, the date on which the plaintiff company was incorporated, on 03.06.2011 the date on which M/s.Raja Holdings sent legal notice to the defendants, on 19.08.2011 the date on which the mediation talk was finalized among the Raja Holdings and the 2nd defendant before the plaintiff's director, on 24.08.2011 the date on which the defendants owes to the Plaintiff a sum of Rs.4 crores/- (Rs.3.5 Crore directly paid to Raja Holdings and G.Kalpana and Rs.
properties with third parties), on 24.08.2011 the date on which the defendants executed letter to the mortgagees to hand over the title deeds and release of four properties, on 25.08.2011 the date on which the MOU entered between 3rd defendant and the plaintiff, on 29.08.2011 the date on which the defendants entered MOU with the plaintiff, on 29.08.2011 the defendant 1 and 2 registered simple mortgage deed to the plaintiff, on the very same date 29.08.2011 the date on which the defendants executed Power of Attorney in favour of one Mr.Babu Krishnan for the mortgaged properties, 08.09.2011 the date on which MOU was entered between the plaintiff and M/s. Raja Holdings & G.Kalpana, on 12.09.2011 the date on which the said M/s. Raja Holdings & G.
Kalpana released four properties and executed a registered receipt of discharge upon payment of Rs.3.5 Crores through the plaintiff, on 24.11.2011 the date on which the said M/s. Raja Holdings & G.Kalpana had executed a registered receipt of discharge for Karaikal Road, Kumbakonam property, on 14.06.2012 the date on which the said M/s. Raja Holdings & G.Kalpana had executed a registered receipt of discharge from mortgage for the Thodukadu property, on 08.10.2012 the date on which the plaintiff executed a registered receipt of discharge for the Kotagiri properties upon payment Rs.80,00,000/-, on 18.08.2013 the date on which the plaintiff executed a registered receipt of discharge for the Kovalam property upon payment of Rs.
1,22,22,000/-, on 27.08.2014 the date on which the plaintiff demanded for the monies due and given notice to the defendants and on 28.08.2014 the date on which the defendants admit their liabilities and executed promissory notes to that effect and continues to commit default in repayment and as the cause of action for the suit arises at Madras, within the limit of this Hon'ble Court Chennai, the suit before this Hon'ble Court is maintainable and entertainable."
6.The suit is filed as summary suit based on two promissory note which are marked as Ex.P29 and Ex.P30, wherein the defendants 1 and 2 has executed a pronote dated 28.08.2014 in favour of the plaintiff for a sum of Rs.6,27,81,955/- repayable with 30% interest and the third defendant has executed pronote dated 28.08.2014 for a sum of Rs.1,61,40,131/- repayable with 30% interest. 7.The pronote Exs.P.29 and P30 were executed by the defendants on 28.08.2014. The plaintiff has come to the Court and presented the plaint on 23rd September 2014. Though opportunity was granted to the defendants to contest the suit they have chosen not to contest inspite of leave granted to the defendants. Therefore, the pronotes which are marked as Exs.P29 and P30, remains unchallenged.
Since the suit is filed within the period of limitation and consideration for the pronote been explained by the plaintiff through the evidence let in by the plaintiff, this court is of the view that the plaintiff is entitled for the decree as prayed for as far as the principal amount exhibited in the pronotes Ex.P29 and Ex.P30. However, though the rate of interest of 30% is agreed and shown as such in the pronote, this court is of the view that the rate of interest cannot be so exorbitant contrary to statute, therefore restricted to be 12% p.a. from the date of plaint till the date of decree. Therefore at the rate of 12% for the decretal amount till realisation.
8.The suit is decreed as above with costs.
26.10.2021 vri List of documents marked as exhibits on the side of the plaintiff: S.No.
Exhibits Description of documents 1.
Ex.P1 Authorisation Letter for P.W.1 Original dated 04.12.2020 2.
Ex.P2 Xerox copy of Incorporation Certification of the plaintiff dated 11.03.2011 3.
Ex.P3 Xerox copy of the E.C. For Besant Road Kumbakonam property dated 4.5.2010 4.
Ex.P4 Xerox copy of the agreement of sale between S.Ravichandran with the first defendant dated 15.05.2010
S.No.
Exhibits Description of documents 5.
Ex.P5 Xerox copy of the simple mortgage dated 11.05.2009 Ex.P6 Xerox copy of the simple mortgage dated 11.05.2009 Ex.P7 Xerox copy of the consent letter executed by S.Ravichandran and accepted by the first defendant dated 19.01.2011. 8.
Ex.P8 Xerox copy of the General Power of Attorney executed by the first defendant dated 21.01.2011.
9.
Ex.P9 Xerox copy of the letter from S.Ravichandran to plaintiff dated 09.03.2011.
10.
Ex.P10 Xerox copy of the sale deed executed by the first defendant dated 6.4.2011.
11.
Ex.P11 Xerox copy of the MOU between the defendants 1 and 2 and R.K.Radhakrishnan dated 12.06.2010.
12.
Ex.P12 Xerox copy of the EC for Karaikal Road, Kumbakonam property dated 25.05.2010.
13.
Ex.P13 Xerox copy of the letter for seeking redemption of mortgage dated 24.8.2011.
14.
Ex.P14 Xerox copy of the simple mortgage deed executed by the first and second defendants dated 24.08.2011.
15.
Ex.P15 Xerox copy of the MOU entered between the plaintiff and the first and second defendants dated 25.8.2011.
16.
Ex.P16 Xerox copy of MOU entered between the plaintiff and the first and second defendants dated 29.8.2011.
17.
Ex.P17 Xerox copy of the General Power of Attorney dated 29.08.2011. 18.
Ex.P18 Xerox copy of the sale deed between the plaintiff and the first defendant dated 7.9.2011.
19.
Ex.P19 Xerox copy of the MOU between plaintiff and Raja Holdings and G.Kalpana dated 8.9.2011.
20.
Ex.P20 Xerox copy of the receipt issued by Raja Holdings and G.Kalpana to the first and second defendants dated 12.09.2011. 21.
Ex.P21 Xerox copy of the receipt issued by Raja Holdings and G.Kalpana to the first and second defendants dated 24.11.2011. 22.
Ex.P22 Xerox copy of the receipt issued by the Raja Holdings and G.Kalpana to 1st and 2nd defendants dated 14.06.2012. 23.
Ex.P23 Xerox copy of the receipt issued by the plaintiff to 1st and 2nd defendants dated 08.10.2012.
24.
Ex.P24 Xerox copy of the receipt issued by the plaintiff to 1st and 2nd defendants dated 18.8.2013
S.No.
Exhibits Description of documents 25.
Ex.P25 Xerox copy of the demand notice issued by the plaintiff to 1st and 2nd defendant's residence address dated 27.8.2014. Ex.P26 Xerox copy of the demand notice issued by the plaintiff to 1st and 2nd defendants office address dated 27.8.2014. 27.
Ex.P27 Xerox copy of the demand notice issued by the plaintiff to the third defendant office address dated 27.8.2014. 28.
Ex.P28 Xerox copy of the demand notice issued by the plaintiff to the third defendant's residence address dated 27.8.2014. 29.
Ex.P29 Original demand promissory note dated 28.8.2014. 30.
Ex.30 Original demand promissory note dated 28.08.2014.
DR.G.JAYACHANDRAN,J.
VRI C.S. No.654 of 2014 26.10.2021