Kerala High Court
Sree Gokulam Chit And Finance Co.(P) Ltd vs Ashok Kumar on 21 March, 2025
Author: K.Babu
Bench: K. Babu
C.R.P. No.190 of 2020
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2025:KER:23883
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
CRP NO. 190 OF 2020
AGAINST THE ORDER DATED 21.12.2019 IN OP NO.1 OF
2019 OF MUNSIFF COURT, QUILANDY
REVISION PETITIONER/S:
1 SREE GOKULAM CHIT AND FINANCE CO.(P) LTD
NO.66, ARCOT ROAD, KODAMBAKKAM,
CHENNAI - 600 024, REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE AND ASSISTANT MANAGER, K. N.
SUNIL, S/O. K. A. NARAYANAN.
2 SREE GOKULAM CHIT AND FINANCE CO. (P) LTD.
REPRESENTED BY BRANCH MANAGER, KDC BANK
BUILDING, KOYILANDY TALUK, KOZHIKODE - 673 616.
BY ADVS.
K.S.BABU
SMT.N.SUDHA
SRI.BABU SHANKAR
SHRI.RICHIN MATHEW
C.R.P. No.190 of 2020
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2025:KER:23883
RESPONDENT/S:
ASHOK KUMAR
AGED 54 YEARS
S/O. GANGADHARAN NAIR, THIRIKKOTH HOUSE,
NADAKKUTHAZHE AMSOM, PUTHOOR DESOM, VATAKARA
TALUK, KOZHIKODE.
BY ADVS.
Abraham Mathew (Vettoor)
ANIL ABEY JOSE(K/577/2013)
MAGGIE V MATHUNNY(K/000731/2014)
THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
C.R.P. No.190 of 2020
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"C.R."
K.BABU, J
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CRP No.190 of 2020
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Dated this the 21st day of March, 2025
ORDER
The challenge in this Civil Revision Petition is to the order dated 21.12.2019 passed by the Munsiff's Court, Koyilandy, allowing a petition filed under Section 83 of the Transfer of Property Act, 1882, directing the petitioners/respondents to receive a sum of Rs.25,000/- with interest and expenses and release the title deed in respect of an immovable property stated to have been mortgaged with the petitioners.
2. The respondent filed the Original Petition and pleaded as follows:-
C.R.P. No.190 of 2020
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2025:KER:23883 He is the owner of the landed property comprised in Re-
Survey No.46/128 of Kunnathara Village of Koyilandy Taluk. He acquired the said property by virtue of document No.3062/2003 of SRO Chemanchery. He had borrowed a sum of Rs.25,000/- from the petitioners on 21.12.2012 for his business purpose. At the time of borrowal, the immovable property referred to above was offered as security and mortgage deed No.3758/2012 of SRO Chemanchery was registered. The respondent wants to assign the property to a stranger. He approached the petitioners to pay that debt and to get back the title deed. The petitioners did not accede to his request.
3. The respondent filed the Original Petition under Section 83 of the Transfer of Property Act seeking a C.R.P. No.190 of 2020 ..5..
2025:KER:23883 direction to the petitioners to receive the amount due with interest and expenses and release the title deed.
4. The petitioners pleaded the following:-
The petitioners had no knowledge regarding the ownership of the property. The respondent did not borrow the sum of Rs.25,000/- from its Koyilandy Branch either on 21.12.2012 or on any other date mortgaging his property. He did not deposit the title deed referred to in the petition concerning any financial transaction.
Petitioner No.2 has no idea about the mortgage deed.
The petitioner company is engaged in chit business. It has more than 100 branches in Kerala. On enquiry, it is understood that the respondent had transactions with the Kalpetta branch of the petitioner company. A huge amount is due from the respondent to the Kalpetta branch of the petitioner company. Apart from the C.R.P. No.190 of 2020 ..6..
2025:KER:23883 transaction referred to in the Original Petition, as per mortgage deed No.3758/2012, other charges also have been created on the property in connection with various transactions done by the respondent with the Kalpetta branch of the petitioner's company. The petitioners are not in a position to produce the original title deed. The Branch Manager of the Kalpetta branch is a necessary party.
5. The trial Court raised the following points:-
The trial Court proceeded with the matter based on the rival contentions. Exts.A1 to A6 were marked on the side of the respondent. Petitioner No.2 gave evidence as RW1.
6. The trial Court came to the following conclusions:-
The respondent was ready and willing to redeem the mortgage and the petitioners were not prepared to accept C.R.P. No.190 of 2020 ..7..
2025:KER:23883 the mortgage money and return the title deed. Based on this finding, the trial Court directed the petitioners to receive a sum of Rs.25,000/- and release the title deed to the respondent.
7. The learned counsel for the petitioners made the following arguments:-
(1)The learned Munsiff ought to have found that a proceeding under Section 83 of the Transfer of Property Act is only procedural and ministerial in character, and therefore, the Court had jurisdiction only to record the deposit and close the Original Petition and in case of contest, relegate the parties for adjudication of their dispute in a properly instituted civil suit.
(2)The learned Magistrate ought not to have decided the case on merits, especially when the petitioners challenged the pleadings in the petition and contended C.R.P. No.190 of 2020 ..8..
2025:KER:23883 that the respondent had various transactions with the Kalpetta branch of the company and further that litigations were pending against him and charges have been created on the property.
8. The learned counsel for the respondent submitted the following:-
(1)Though the proceedings were initiated as an Original Petition, the Court below has adjudicated the rights and liabilities of the parties.
(2)The respondent has the right to redeem the mortgage, and therefore, it is the petitioners' obligation to receive the amount under the mortgage.
(3) When the mortgager deposited the mortgage amount with interest and charges under Section 83 of the Transfer of Property Act, the mortgagee's right over the property ceased to exist.C.R.P. No.190 of 2020
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2025:KER:23883 (4) The Court below rightly resolved the dispute between the parties by way of adjudication.
9. It is advantageous to extract the statutory provision. Section 83 of the Transfer of Property Act reads thus:-
"83. Power to deposit in Court money due on mortgage At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.
Right to money deposited by mortgagor.--The court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing C.R.P. No.190 of 2020 ..10..
2025:KER:23883 in the same Court the mortgage-deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage-deed, and all such other documents so deposited shall be delivered to the mortgagor or such other person as aforesaid.
Where the mortgagee is in possession of the mortgaged property, the court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re- transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgment in writing that any right in derogation of the mortgagor's interest transferred to the mortgagee has been extinguished. "
10. Section 83 of the Transfer of Property Act is a modified form of the provision in the Bengal Regulation I of 1798 enabling the mortgagor to redeem by payment into Court. The amount deposited under Section 83 of C.R.P. No.190 of 2020 ..11..
2025:KER:23883 the Transfer of Property Act in the Court is treated as a tender.
11. The mortgagor may, after the mortgage money has become payable and before his right of redemption is barred, (i) pay or tender out of Court at a proper time and place the amount due on the mortgage, or (ii) deposit the same in Court under the present Section, or (iii) bring a regular suit for redemption. All three courses being at one and the same time open to the mortgagor, he is at liberty to adopt one or the other, or all of them successively. The Section provides a speedy and summary remedy for redemption to the mortgagor, who is empowered to tender by depositing the sum he calculates to be due on the mortgage. The Court is, thereupon, to cause a written notice of the deposit to be served on the mortgagee, who may withdraw the amount deposited for C.R.P. No.190 of 2020 ..12..
2025:KER:23883 him, upon giving up the mortgage-deed to be made over to the mortgagor. Having surrendered his muniment of title, the mortgagee has no more right to remain in possession of the property, which the Court may order him to surrender before he is permitted to withdraw the deposit. The person depositing under this Section cannot introduce any litigious contentions, which the Court in the exercise of its summary jurisdiction cannot enquire into. "The Section, as it is, confers upon the mortgagor an exceptional privilege which other debtors do not enjoy, of paying the amount of their debt in Court, even when his creditor has not brought any suit against him, and must not be further enlarged in its operation.
12. Section 83 of the Transfer of Property Act intends to ensure that the mortgaged properties are released to the mortgagor without driving him to institute C.R.P. No.190 of 2020 ..13..
2025:KER:23883 a suit for redemption. This is possible only if two ingredients are satisfied namely:-
(a)The mortgagor deposits the amount in the Court prior to the institution of the application or petition, and (b) on receipt of notice from the Court, the mortgagee expresses his willingness in unequivocal terms; that is, willingness to receive the money without any fetters or conditions.
Only when these requirements are satisfied does the Court get the jurisdiction to allow the petition.
13. The Privy Council in Forbes v. Ameeroonissa Begum [1865 (10) MIA 340 (PC)] held that under the Bengal Regulation XVII of 1806, the functions of the Judge under the relevant Section were purely ministerial.
14. In Cherukuri Ramakrishniah v. Sri Krushi Vidyalaya Sangam [1944 (2) MLJ 284], the Madras High Court held that the question of the correctness of the C.R.P. No.190 of 2020 ..14..
2025:KER:23883 amount could not be gone into as such an enquiry was beyond the scope of Section 83 of the Transfer of Property Act. This view was followed by the Madras High Court in Govindaswami v. R. Bakkim [1983 (2) MLJ 207] and the Orissa High Court in Chandramani Pradhan v. Hari Pasayat [AIR 1974 Ori 47]. In Rajakrishna Menon v. Sundaram Pillai [1963 KLT 1031], in a petition filed under Section 83 of the Transfer of Property Act, this Court considered a question as to whether the petitioner was entitled to future interest after the deposit. It was a case where the suit was filed on a hypothecation bond for realisation of the principal and interest due as per the bond. After the institution of the suit, the defendant filed an application under Section 83 of the Transfer of Property Act. While deciding the petition under Section 83 of the Transfer of Property Act, C.R.P. No.190 of 2020 ..15..
2025:KER:23883 this Court held that once the suit is filed, the amount due on the mortgage can be ascertained only after the decree is passed and the Court had no jurisdiction to decide on the merit of the disputes. The Court held that the deposit made under Section 83 was invalid.
15. In Balakrishnan v. Bhaskaran [1987 (2) KLT 733], a Division Bench of this Court considered the question whether deposit of amounts under Section 83 of the Transfer of Property Act would extinguish the mortgage. The Division Bench held thus in paragraph 6 of the judgment.
"6. As there was no possibility of getting this right extinguished by act of parties, the respondent decree bolder first sought relief under S.83 T.P. Act and accordingly deposited the amount remaining due on the mortgage as on that date and sought an order directing notice to the petitioner. The petitioner herein, instead of receiving the money, disputed the correctness of the same, C.R.P. No.190 of 2020 ..16..
2025:KER:23883 it is argued on behalf of the petitioner whatever that be and consequently the petition was dismissed. It is by now well established that the making of a deposit of the mortgage money under S.83 does not ipso facto extinguish the mortgage where the mortgagee has refused to accept the deposit. To put it differently if the deposit is not accepted, the mortgage does not get extinguished; that means the parties continue to have the relationship of mortgagor and mortgagee. The mortgagee in such circumstances, holds the property as a kind of trustee for the mortgagor and as such accountable to the latter for profits. In other words the mortgagee continues to be a mortgagee with the statutory liability to account for the profits received by him from that date. In such circumstances it is for the mortgagor, if he wants to redeem the mortgage, to bring a suit for the enforcement of his legal rights and unless and until he does so successfully, the mortgage continues to subsist. (See Rukhminibai v. Venkatesh, ILR 31 Bom. 527 and Harbans v. Ramdhari (AIR 1960 Pat. 51)."
16. In Bishwanath Prasad Singh v. Rajendra Prasad And another [AIR 2006 SC 2965: 2006 KHC C.R.P. No.190 of 2020 ..17..
2025:KER:23883 608], the Supreme Court constructed the scope of Section 83 of the Transfer of Property Act. The suit therein was one for a declaration that the transaction entered into between the parties was, in fact, a transaction of usufructuary mortgage and for a further declaration that the said transaction stood redeemed under the Bihar Money Lenders Act, 1974. An application under Section 83 of the Transfer of Property Act was filed by the plaintiff in the suit. The defendants resisted the application, contending that the transaction in question was not a mortgage. The Court permitted the deposit to be made. The matter went up to the Supreme Court. The question raised before the Supreme Court was whether the subsequent suit for declaration was barred by res judicata in view of the order passed by the civil Court C.R.P. No.190 of 2020 ..18..
2025:KER:23883 in the miscellaneous application accepting the deposit. It was argued that while entertaining the application under Section 83 of the Transfer of Property Act, the Munsiff Court was exercising its limited jurisdiction and the findings of such a Court of limited jurisdiction would also operate as res judicata. Following Union of India v. Pramod Gupta [(2005) 12 SCC 1] the Supreme Court held that the principle of res judicata has no application in a case where the judgment or order had been passed by a Court having no jurisdiction.
17. Considering the rival contentions, the Supreme Court in paragraphs 37 and 38 of the judgment in Bishwanath Prasad Singh v. Rajendra Prasad And another, observed thus:- C.R.P. No.190 of 2020
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2025:KER:23883 "37. The provision merely permits the mortgagor to deposit the mortgage amount. Even in a case where such deposit is made, in the event the mortgagee refused to accept the deposit, the mortgagor would have no option but to institute a suit for redemption relying on the mortgage money deposited. The respondent did not file a suit for redemption. It may be that the appellant objected to the said deposit but despite the fact that the purported mortgage amount was allowed to be deposited, the same being not binding upon the mortgagee as he could not be compelled to accept the same, the question of applying the principles of res judicata would not arise. (See Chandramani Pradhan v. Hari Pasayat ( AIR 1974 Ori 47).) By reason of such deposit the status of the parties is not altered. For filing a suit for redemption by the mortgagor, deposit under S.83 is not a precondition.
38. It is well known that the function of a court in terms of S.83, Transfer of Property Act is procedural in nature."
18. The Supreme Court categorically held that in an application to record deposit under Section 83 of C.R.P. No.190 of 2020 ..20..
2025:KER:23883 the Transfer of Property Act, the question of the correctness of the amount could not be gone into and that such questions are beyond the Scope of Section 83 of the Transfer of Property Act, and therefore, it could not be argued that anything was heard and finally decided in a proceeding under Section 83 of the Transfer of Property Act so as to attract the bar of res judicata.
19. In Vasanthakumari and Others v. Sarojini and others [2008 (1) KLT 451: 2008(1) KHC 421], a Single Bench of this Court has elaborately considered the scope of Section 83 of the Transfer of Property Act and held thus:-
"12. ...........The petitioners wanted the charge to be redeemed and, therefore, filed the Original Petition with a prayer to permit them to deposit the amount payable under the terms of the settlement C.R.P. No.190 of 2020 ..21..
2025:KER:23883 deed. In view of the provision in S.100 that the provisions of the Transfer of Property Act relating to simple mortgage shall apply to the charge, the petitioners could file the Original Petition under S.83 of the Transfer of Property Act. Though the petition does not state that it was filed under S.83 of the Transfer of Property Act, in sum and substance, the petition is under S.83 as the averments in the petition and the relief prayed for in the petition would disclose. In order to record the deposit under S.83 of the Transfer of Property Act or to record the same by invoking S.151 of the Code of Civil Procedure, the Court is not expected to decide the disputes between the parties relating to the genuineness or otherwise of the document or the respective rights and liabilities of the parties or the entitlement of any party to receive any amount or as to the sufficiency of the amount or any other matter which is required to be settled in a properly constituted civil suit. The jurisdiction of the Court in disposing of such an Original Petition is only procedural and ministerial in character as held by the Supreme Court in 2006 KHC 608 : JT 2006 (3) SC 221 : AIR 2006 SC 2965 : 2006 (4) SCC 432. The Court need only look into the C.R.P. No.190 of 2020 ..22..
2025:KER:23883 document and ascertain whether the petitioners are liable to pay certain amounts to the respondents as per the terms of the said document. If the Court is satisfied that there is such a liability, permission can be granted to the petitioners to make the deposit. The Court shall not in such case decide the question whether the settlement deed is genuine or whether the donor had the required sound disposing state of mind at the time of execution of the document, or whether the document is vitiated by fraud, undue influence or coercion. Such questions are alien to a petition under S.83 of the Transfer of Property Act or one under S.151 of the Code of Civil Procedure to record the deposit. Once the deposit is recorded, the liability of the person bound under the document to discharge the liability would come to an end. The petitioners cannot be compelled to indulge in a suit on title or a suit for declaration, when according to them, there is no cloud on their title or when they do not want any declaration in respect of their title. It is not for the Court to compel a party to institute a suit. When a petition of the nature now under consideration is filed, the only requirement is to ascertain whether the petitioners are liable to pay the C.R.P. No.190 of 2020 ..23..
2025:KER:23883 amount and whether they are prepared to make the deposit. After service of notice on the respondents, the Court can record the deposit and relegate the parties to agitate all their contentions and the defence in a properly constituted civil suit."
20. In the present case, even when the petitioner resisted the genuineness of the averments raised in the petition and expressed their unwillingness to receive the money, contending that various other charges have been created on the property based on the financial transactions between the respondent and Kalpetta branch of the petitioner's institution, the Court proceeded to decide the dispute between the parties. The exercise of recording the findings considering the dispute between the parties is beyond the jurisdiction, and, hence, a nullity. C.R.P. No.190 of 2020
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2025:KER:23883 Resultantly, the Civil Revision Petition is allowed. The order dated 21.12.2019 passed by the Court of Munsiff, Koyilandy, in O.P.No.1/2019 stands set aside.
Sd/-
K.BABU JUDGE kkj