Madras High Court
N.Chockalingam … vs Indian Bank
A.No.2352 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON PRONOUNCED ON
28.07.2025 08.08.2025
CORAM :
THE HON`BLE MR.JUSTICE K.KUMARESH BABU
A.Nos.2352 to 2354 of 2025
in
C.S.No.452 of 2019
N.Chockalingam … Applicant in all Appln
vs.
1.Indian Bank,
ARMB-II,
Rep., by its Assistant General Manager,
No.55, Ethiraj Salai,
Chennai – 600 008.
2.Manohar Prasad
3.M/s.J.D.A. Consultancy Services Pvt., Ltd.,
Rep., by its Managing Director,
1st Floor, Casa Blanca Complex,
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A.No.2352 of 2025
Casa Major Road, Egmore,
Chennai – 600 008.
4.Navaneethammal
5.Kannammal
6.Dilli @ Ayyakkannu Naicker
7.Munusamy Naicker
8.Chinnadurai
9.Muniammal
10.Padmavathy Ammal
11.M/s.Ravishankar Industries Pvt., Ltd.,
(Formerly known as Ravishankar Films Pvt., Ltd)
No.2, Sarangapani Street,
T.Nagar, Chennai – 600 017.
12.Manohar Prasad
13.M/s.Asian Capital Consolidates &
Holdings Pvt., Ltd.,
No.2, Sarangapani Street,
T.Nagar, Chennai – 600 017.
14.Palaniappa Estates,
Rep., by its Proprietor, S.Annamalai,
22/77, Venkatarathinam Nagar,
Adyar, Chennai – 600 020.
15.M.Gopalakrishnan
16.S.Maheswari
17.S.Palaniappan … Respondents in all Appln
For Applicant : Mr.R.Thiagarajan
For Respondent : Ms.N.Varsha for M/s.Aiyar & Dolia for R1
Mr.V.Raghavachari Sr., counsel for
Ms.Shubharanjani Ananth for R3
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A.No.2352 of 2025
No Appearance for RR2, 4 to 17
COMMON ORDER
The Application in A.No.2352 of 2025 had been filed to appoint N.Vijayakumari, D/o Late C.Natarajan residing at No.30, Anandavelu Street, Perambur, Chennai – 600011 as the guardian of the plaintiff to safeguard him and his property.
2. The Application in A.No.2353 of 2025 had been filed to recall the order dated 28.11.2024 made in A.No.6038 of 2023 in C.S.No.452 of 2019 rejecting the plaint thereby set aside the order.
3.The Application in A.No.2354 of 2025 had been filed to reopen the A.No.6038 of 2023 in C.S.No.452 of 2019 for advancing the arguments thereby granting an opportunity to file the counter affidavit and receive the same and proceed in accordance with law.
4.Mr.R.Thiagarajan, learned counsel appearing for the applicant, Ms.N.Varsha learned counsel appearing for the first respondent, Mr.V.Raghavachari, learned Senior counsel appearing for Ms.Shubharanjani 3/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 Ananth, learned counsel appearing for the third respondent.
5.The learned counsel appearing for the applicant would submit that the applicant had filed a Suit for a declaration that the SARFAESI proceedings initiated in respect of the land purchased by him, as not binding on the plaintiff, inter alia for a declaration to declare the compromise order passed by the Debt Recovery Tribunal also not binding and the sale certificate issued pursuant to the proceedings by the Debt Recovery Tribunal, as illegal, invalid, non est and not binding upon the plaintiff and for a permanent injunction. He would submit that the defendants had not filed any written statement and therefore the matter was listed under the caption of “undefended board” at which time, an application was filed by the third defendant under Order VII, Rule 11. The said application after initial listing was not listed thereafter before the Court and subsequently was listed on 13.11.2024, when the applicant had sought time to file counter. When the counsel contacted the applicant, it had come to his knowledge that the applicant had been affected with a mental disorder 'schizophrenia' and is unable to lead his life independently and as the applicant was unmarried, the applicant's sister had taken out an application on 27.11.2024, seeking herself to be appointed as 4/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 Guardian of the plaintiff by invoking the provisions of Order XXXII CPC. When the application to reject the plaint came to be listed before this Court on 28.11.2024, the counsel for the applicant had brought to the notice of the learned Judge that the application had been taken out to appoint a Guardian for the plaintiff, but however, the learned Judge proceeded to reject the plaint by holding that inspite of sufficient time granted to the plaintiff, he had not even filed any counter.
6. He would submit that when an application had been filed to appoint a Guardian of the plaintiff who had been affected with 'schizophrenia', the Court ought to have first disposed of the said application before proceedings to hear the matter on merits. He would submit that the merits of Order VII Rule 11, would have to be only adjudicated after an application under Order XXXII CPC is disposed of by this Court. In support of his contention, he had relied upon various judgments. Referring to the judgment in the case of Moothetuth Kanari vs. Hari Shenoy & Ors., reported in 1917 AIR Madras 616, he would submit that when a mentally ill person is not represented by a Guardian ad litem, any order passed against him would be a nullity.
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7.Relying upon the judgment of the Hon'ble Apex Court in the case of Kasturibai & Ors., vs. Anguri Chaudhary reported in (2003) 3 SCC 225, he would submit that it would be proper only for the Court first to conduct an enquiry on an application filed under Order XXXII of CPC and thereafter proceed on the merits of the claim. Further relying upon the judgment of the Division Bench of this Court in the case of A.Manonmani vs. A.Sivasubramanian reported in 2004 (5) CTC 487, he would submit that the Court had revoked the grant of probate, which had been granted without following the mandatory provisions under Order XXXII CPC. Relying upon a judgment of the learned Single Judge in the case of Sunita Shakunthala Devi & Ors., vs. K.S.Naidu & Ors., made in CRP(PD) No.1018 of 2023, he would contend that an order without examining the mentally ill-person, an order could not have been passed on merits even in an application filed under Order XXXII. On the same proposition, he had relied upon the Division Bench judgment of this Court in OSA.No.5 of 2007. Relying upon an another Division Bench judgment of this Court in the case of L.Hemalatha vs. N.P.Jayakumar reported in 2008 1 CTC 681, he would submit that this Court finding that the annulment of marriage on the ground of insanity without exhausting the provisions of Order XXXII was a nullity. Relying upon the 6/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 judgment of the Bombay High Court in the case of Sushma vs. Umesh reported in 2018 1 MHLJ 51, he would contend that the Court should protect the interest of an unsound litigant, as he is incapable of protecting his or her interest. Relying upon the judgment of the Hon'ble Apex Court made in Civil Appeal No.1723 of 2008, dated 22.05.2012, he would submit that when an order had been made even against an illiterate in a hurried manner, then such order could only be termed to have been obtained by playing fraud on the Court and would have to be set aside.
8. Further, relying upon the decision of the Madras High Court made in the case of A.S.Mohammed Ibrahim Ummal vs. Shaik Mohammad Marakayar & Ors., he would submit that the Court has ample jurisdiction to enquire into the unsoundness mind of a litigant. Relying upon the Full Bench judgment of the Kerala High Court in the case of Pankajaksha Kurup vs. Fathima & Ors., reported in AIR 1998 Kerala 153, he would submit that any order passed against the mentally ill-person is null and void. He would also rely upon the judgment of the Calcutta High Court in case of Mahendra Kumar Karnani vs. Radha Devi Karnani reported on 2017 SCC Online Cal 8741, wherein the Court had upheld the order of the learned Single Judge, 7/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 where the Court had ordered assessment of the mental fitness of the plaintiff. He would submit that in the present case, the applicant had produced the medical records particularly the discharge summary of the plaintiff, which would vindicate that the plaintiff had suffered an illness of 'schizophrenia'. Hence, he would request this Court to recall the orders passed and refer the plaintiff for medical evaluation to ascertain his unsoundness and thereafter appoint the sister of the plaintiff as his Guardian to effectively defend the Suit.
9.Countering his arguments, Mr.V.Raghavachari, learned Senior counsel appearing the third respondent would submit that when the matter was taken up on 28.11.2024, there was no application that was on board before the Court filed under Order XXXII. Therefore, he would submit that there is no error in the learned Judge rejecting the plaint. He would further submit that such an order is only appealable and by invoking the powers of this Court under Section 151 CPC, such orders cannot be recalled, as the order itself had been made on merits after hearing the respective parties. He would further submit that he would have no quarrel on the authorities submitted by the learned counsel appearing on behalf of the applicant. He would submit that a prima facie case ought to have been made by the applicant in the application filed 8/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 under Order XXXII. He would submit that the applicant had not produced any medical records indicating findings of the mental illness by a qualified psychiatrist nor has the applicant produced any documents with regard to the treatment for the said mental illness.
10. He would further contend that what had been placed on record before this Court was a discharge summary issued by a private hospital, where he was admitted for swelling of his lower limbs and incidentally the discharge summary records past illness of the applicant/plaintiff as to also have been diagnosed with 'schizophrenia'. Such record cannot be taken by this Court to come to a prima facie conclusion for examining the applicant/plaintiff. He would submit that the affidavit filed in support of the said application does not disclose the period from which the plaintiff had been suffering from the said mental illness and it had been only filed to protract a proceedings which according to him is a deadwood, as the SARFAESI proceedings in which the property was sold, had been affirmed up till the Hon'ble Apex Court. He would further submit that on the admitted date, when the plaintiff had purchased the property, the property had already been attached by the Debt Recovery Tribunal and hence, any purchase of property by any individual after the order of attachment under the SARFAESI Act, would have to be statutorily 9/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 declared as a void sale and hence, the entire suit as framed by the applicant itself would have to be rejected and has been rightly rejected by the learned Judge.
11. He would further submit that the purchase of the applicant would be hit by the principles of lis pendens as enshrined under Section 52 of the Transfer of Property Act. In support of his contention, he had also relied upon a judgment of the Hon'ble Apex Court in the case of Guruswamy Nadar vs. P.Lakshmi Ammal (Dead) through Lrs., & Ors., reported in (2008) 5 SCC
796. He would contend that the plaintiff had alleged fraud on the part of the third defendant in colluding with the second defendant. He would submit that such claim of fraud cannot vitiate the order of attachment made by the Debt Recovery Tribunal and the subsequent sale made thereunder. Such pleadings of fraud cannot help the applicant in sustaining his claim as he is purchaser lis pendens. Hence, he prays this Court to dismiss these applications as bereft of any materials.
12. I have considered the rival submissions made by the learned counsels appearing on either side and perused the materials placed on record. 10/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025
13. An Application to recall the order dated 28.11.2024 passed by this Court had been primarily made on the contention that an application filed by the plaintiff's sister to appoint herself as a Guardian of the plaintiff, had been filed before the Registry on the day earlier when the application under Order VII Rule 11 was allowed by the learned Judge. The other averments, which have all been raised by the applicant to recall the order in the view of this Court can only be considered by the very same learned Judge, who had passed the order. To decide the primary contention as regards to the mental illness for the sister of the plaintiff to be appointed as Guardian, this Court had analyzed the arguments made by the respective counsels appearing on either side.
14. The various judgments relied upon by the learned counsel appearing for the applicant are all settled proposition of law and there can be no quarrel to the same. On the facts of this case, whether the applicant had made out a case for appointing the sister of the plaintiff as his Guardian, is to be first adjudicated.
15. The applicant had relied upon a discharge summary issued by a private hospital, where he had been treated for swelling of his bilateral lower 11/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 limbs, in which the plaintiff's illness of 'schizophrenia' has been shown to be his past illness. As rightly pointed out by the learned Senior counsel for the third respondent the affidavit filed in support of the said application does not disclose as to on which date, the plaintiff had been diagnosed with the said mental illness nor the name of the Doctor, who had diagnosed & treated the plaintiff for his illness have also not been mentioned, except to claim that he is under going treatment at a Rehabilitation Centre. The records of treatment at the rehabilitation centre has also not been produced before this Court. That apart, a careful perusal of the discharge summary, where the past illness had been recorded would show that the plaintiff is said to have been suffering from 'schizophrenia' for the past 35 years. When that being so, it is not known as to how the plaintiff had purchased the Suit Schedule Property and as to how he had also approached this Court by filing this instant Suit. If it is the claim of the sister of the applicant that he had been suffering from the said mental illness even at the time of instituting the suit, he ought to have been represented by a Guardian and not otherwise. This would only bring this Court to conclude that the plaintiff had been able to manage himself with the said mental illness even though this Court is not prima facie satisfied that the plaintiff is suffering from any mental illness for the reasons indicated supra. 12/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025
16. In view of the aforesaid reasonings and findings, this Court do not find any merits in application A.No.2352 of 2025, since this Court had found that the said application for appointing the sister of the plaintiff as Guardian is without any merits, which is primary ground seeking for recalling the order, dated 28.11.2024 made in A.No.6038 of 2023 and reopen the said application for advancing further arguments is also without any merits.
17. In fine, all the Applications in A.Nos.2352 to 2354 of 2025 are dismissed. However, the applicant is at liberty to challenge the order in the manner known to law. However, there shall be no order as to costs.
08.08.2025 Index : Yes / No Internet :Yes / No Pbn 13/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm ) A.No.2352 of 2025 K.KUMARESH BABU.J., Pbn Order in A.Nos.2352 to 2354 of 2025 in C.S.No.452 of 2019 08.08.2025 14/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/08/2025 02:09:31 pm )