Madras High Court
M. Kowsalya vs The Manager on 8 September, 2022
Author: R. Hemalatha
Bench: R. Hemalatha
C.R.P. No.1456 of 2020 & CMP No.8370 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
CRP No.1456 of 2020
and
CMP No.8370 of 2020
M. Kowsalya ... Petitioner
Vs.
The Manager
Pallavan Grama Bank
Appakkudal Branch,
66/2, First Floor,
Kavindapady Road, Appakkudal post
Appakkudal village
Bhavani Taluk, Erode District. ... Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India against the fair and decretal order dated 09.01.2020 made in
I.A.No.201 of 2017 in O.S. No. 261 of 2016 on the file of the Sub Court,
Bhavani.
For Petitioner : Mr. N. Manokaran
1/12
https://www.mhc.tn.gov.in/judis
C.R.P. No.1456 of 2020 & CMP No.8370 of 2020
ORDER
This revision petition is filed against the orders dated 09.01.2020 passed by the learned Subordinate Judge, Bhavani, in I.A.No.201 of 2017 in O.S. No. 261 of 2016.
2. The revision petitioner filed a petition in O.S. No.261 of 2016 on the file of the Subordinate Judge, Bhavani, for a declaration that she is the absolute owner of the suit properties, namely, the gold jewels worth Rs.1,80,000/- and for a mandatory injunction directing the defendant/The Manager, Pallavan Grama Bank, Appakkudal Branch, to hand over the jewels to the plaintiff after the discharge of the jewel Loan A/c. No.10001817212 dated 08.03.2014. During the pendency of the suit, the plaintiff filed I.A. No.201 of 2017 under Order 6 Rule 17 and Section 151 of the Code of Civil Procedure to amend the plaint as follows:
01) To add the para No.10 (a) in the plaint as, "The plaintiff submit that the plaintiff has filed a suit against the defendant 2/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020 in O.S. No.493/2016 for the present suit property on the file of the Principal District Munsif of Bhavani for the relief of permanent injunction on 23.11.2016 and thereby the court Amin has served court summon and notice in I.A. No.1829/2016 and in O.S. No.493/2016 on the file of Hon'ble Principal District Munsif Court, Bhavani to the defendant on 24.11.2016 at about 10.30 a.m. But the defendant held Public Auction sale of the suit property on 24.11.2016 at 03.00 p.m. The above said act of the defendant was known to the plaintiff only on 23.12.2016 through the counter statement of the defendant in I.A. No.1829/2016 in O.S. No.493/2016, Principal District Munsif Court, Bhavani. The act of the defendant is illegal and unlawful. While the suit proceedings for suit property is pending. The act of the defendant is void and not enforceable by law. Hence, the defendant's public auction sale of the plaintiff's suit property on 24.11.2016 at about 03.00 p.m. is liable to be set aside as it is null and void and it is not binding to the plaintiff's legal right in the suit property. In this aspect, the plaintiff issued a lawyer notice to the defendant on 05.01.2017. The defendant had also received the lawyer notice dated 05.01.2017 on 07.01.2017 itself. But the defendant did not give any reply till now. The 3/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020 lawyer notice dated 05.01.2017 and acknowledgment of the defendant are filed herewith. The certified copy of the petition and order in I.A. No.1829/2016 in O.S. No.493/2016 and served notice and summon of the defendant are filed herewith. Hence the plaintiff is filing the present suit against the defendant for declaration that the defendant's public auction sale held on 24.11.2016 at 03.00 p.m for the suit property is liable to be set aside as it is null and void and it is not binding to the plaintiff's legal right in the suit property" after para No.10.
02) To add the words in Para No.11 of the plaint in the 15th line as, "on 23.12.2016, the plaintiff came to understand through the counter statement filed by the defendant in I.A. No.1829/2016 in O.S. No.493/2016, Principal District Munsif Court, Bhavani that the defendant has done Public Auction sale for the suit property on 24.11.2016 at 03.00 P.M. while the case is pending as Lispendens" before the word "are all".
03) To delete the words "Rs.1,81,000.00" and to add thereon as "Rs.1,82,000.00", to delete the words "Rs.13,575.50" and to add the words as "Rs.13,651.00" and to add the words 4/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020 "25(d)" after the word "27(c)" in Para No.12 and in details of valuation of the plaint.
04) To add the words in details of valuation in Para No.12 of the plaint as follows:-
III. For the relief of Declaration Value of the relief is incapable and a notional value is - Rs.1,000.00 A Court fee u/s 25(d) is - Rs. 75.50 after the word Court fee paid u/s. 27(c) of the Act is Rs.75.50.
05) To add the words in Para No.13(c) as, "declare that the defendant's Public Auction sale held on 24.11.2016 at 03.00 P.M. for the suit property is liable to be set-aside as it is null and void and it is not binding to the plaintiff's legal right in suit property" after para 13(b) of the plaint.
06) To add the word "(d)" instead of "(c)" and to add the word "(e)" instead of "(d)" in Para No.13 of the plaint.
07) To add the word "Declaration" after the word "Mandatory injunction" in the docket sheet of the plaint.5/12
https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020
08) To delete the word "25(b)" and to add the word "25(d)"
in the docket sheet of the plaint.
09) To delete the word "Rs.1,81,000.00" and to add "Rs.1,82,000.00" and to delete the word "Rs.13,575.50" and to add the word "Rs.13,651.00" in the docket sheet of the plaint."
3. The defendant namely, the Branch Manager, Pallavan Grama Bank, filed a detailed counter and after full contest, the learned Subordinate Judge, Bhavani, dismissed the amendment petition vide his order dated 09.01.2020. Aggrieved over the same, the present Civil Revision Petition is filed.
4. Heard Mr. N. Manokaran, learned counsel for the petitioner. No appearance on behalf of the respondent.
5. The revision petitioner/plaintiff's father availed gold loan from the defendant by pledging 114 gms of gold jewels worth 6/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020 Rs.1,80,000/- on 08.03.2014. Subsequently, the father of the plaintiff died on 25.03.2015 leaving behind the plaintiff and others as legalheirs. The plaintiff, on an earlier occasion filed a suit in O.S. No.493/2016 before the Principal District Munsif, Bhavani, for a relief of permanent injunction restraining the present defendant from conducting any public auction and also filed temporary injunction petition in I.A. No.1829/2016 in respect of the gold jewels. The defendant filed a counter in the injunction application in the said suit filed by the plaintiff contending inter alia that auction of gold jewels was already conducted on 24.11.2016. Thereafter, the plaintiff withdrew the said suit in O.S.No.493/2016 and filed the present suit in O.S. No.261/2016 before the Subordinate Judge, Bhavani. In the instant suit the prayer sought for by the plaintiff is that to declare her as absolute owner of the gold jewels and for a mandatory injunction directing the defendant to hand over the gold jewels to her after the plaintiff discharges the jewel loan. Now the present amendment petition is filed to set aside the public auction sale in favour of one Baskaran (third party).
7/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020
6. The contention of the counsel for the revision petitioner is that only after the filing of the present suit, the revision petitioner/plaintiff came to know that the gold jewels were already sold in favour of one Baskaran. Therefore, he sought for setting aside the sale by way of amendment in the suit. His further contention is that without considering the averments made in the plaint as well as in the petition, the trial court judge dismissed the petition in I.A. No.201 of 2017 filed under Order 6 Rule 17 and Section 151 of the Code of Civil Procedure.
7. At the outset, it may be observed that the plaintiff's father availed gold loan of Rs.1,80,000/- from the defendant bank by pledging gold jewels under a Loan A/c. No.10001817212 dated 08.03.2014. In the suit in O.S. No.493/2016 filed by the revision petitioner / plaintiff, no order of injunction restraining the defendant bank from selling the gold jewels in public auction was granted. Therefore, the defendant bank proceeded with the public auction of gold jewels and on 24.11.2016, public auction was conducted in which one Baskaran became the 8/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020 successful bidder and the gold jewels were sold to him. In fact, the defendant in paragraph No. 20 of the written statement had clearly stated that on 20.08.2016, the plaintiff's brother and plaintiff came down to their bank and gave an undertaking letter stating that they are aware of the loan availed by their father by pledging the gold jewels and the outstanding liabilities due to the bank. It is further stated in the undertaking letter that they are aware of the public auction notice issued by the bank. In such circumstances, the plaintiff cannot now contend that she came to know about the public auction only on 23.12.2016. It is also seen from the records that till date neither the plaintiff nor her brother had taken any steps to repay the loan amount due to the bank. In any event, since the gold jewels have already been sold in favour of third party, the suit has become infructuous. By allowing the amendment petition no useful purpose would be served. In view of the above, the Civil Revision Petition is liable to be dismissed.
9/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020
8. In the result.
(i) The civil revision petition is dismissed with liberty to the petitioner to challenge the sale executed in favour of Baskaran in the manner known to law. No costs. Consequently connected miscellaneous petition is closed.
(ii) The orders dated 09.01.2020 passed in I.A.No.201 of 2017 in O.S. No. 261 of 2016 by the Subordinate Judge, Bhavani, is upheld.
08.09.2022
Index : Yes/No
Internet : Yes/No
Speaking/non speaking
bga
10/12
https://www.mhc.tn.gov.in/judis
C.R.P. No.1456 of 2020 & CMP No.8370 of 2020
To
1. The Subordinate Judge, Bhavani.
2. The Section Officer, VR Section, High Court, Madras. 11/12 https://www.mhc.tn.gov.in/judis C.R.P. No.1456 of 2020 & CMP No.8370 of 2020 R.HEMALATHA, J., bga CRP No.1456 of 2020 and CMP No.8370 of 2020 08.09.2022 12/12 https://www.mhc.tn.gov.in/judis