Madras High Court
V.Sobia Lawrence vs Radha on 1 July, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.Nos.343 and 344 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.07.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit Nos.343 and 344 of 2012
and
M.P.Nos.1 to 4 of 2012, M.P.No.1 of 2012 & M.P.No.1 of 2014
A.S.No.343 of 2012
V.Sobia Lawrence .. Appellants
Versus
1. Radha
2. P.Albert
3. Subramani
4. Kumar
5. S.Gandhi
6. Annie Regina
7. Sheela .. Respondents
A.S.No.344 of 2012
1. V. Sobia Lawrence .. Appellants
Versus
1. Radha (Died)
2. P.Albert (Died)
3. M. Radhakrishnan
4. M/s. Katariya & Co.,
Auctioneers,
No.34, New No.67,
Arunahala Naicken Street,
Chinthadripet,
Chennai – 600 002.
1/76
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm )
A.S.Nos.343 and 344 of 2012
5. S.Gandhi
6. Mrs. Annie Regina
7. Mrs. Sheela .. Respondents
[R1 and R2 died, R5 to 7 are brought on record as legal heirs of Deceased R1
and R2 viz., Mrs. Radha and P.Albert vide Order of Court dated 10.07.2023
made in C.M.P. No. 9472 and 9473 of 2017 in A.S.No.343 and 344 of 2012
(TVTSJ)]
A.S.No.343 of 2012: Appeal Suit is filed under Section 96 r/w. Order XLI
and XLI-A of C.P.C and Order IV of the Madras High Court Appellate Side
Rules, to set aside the judgment and decree dated 29.10.2011 passed in
O.S.No.7456 of 2010 by the learned Additional District Judge, Fast Track
Court-I, City Civil Court, Chennai.
A.S.No.344 of 2012: Appeal Suit is filed under Section 96 r/w. Order XLI
and XLI-A of C.P.C and Order IV of the Madras High Court Appellate Side
Rules, to set aside the judgment and decree dated 29.10.2011 passed in
O.S.No.8681 of 2010 by the learned Additional District Judge, Fast Track
Court-I, City Civil Court, Chennai.
For Appellant : Mr.C.P.Hemakumar
(in both Appeals) for M/s. Ganesh & Ganesh
For R5 to R7 : Mr.D.Manimaran
(in both Appeals)
R1 and R2 : Died
R3 and R4 : Ex parte in A.S.No.343 of 2012
R3 and R4 : No appearance in A.S.No.344 of 2012
2/76
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm )
A.S.Nos.343 and 344 of 2012
COMMON JUDGMENT
Both the Appeal Suits are filed to set aside the judgment and decree dated 29.10.2011 passed in O.S.No.7456 of 2010 and O.S.No.8681 of 2010 by the learned Additional District Judge, Fast Track Court-I, City Civil Court, Chennai.
2. The plaint averments in O.S. No.7456 of 2010 in brief are as follows:-
2.1. The suit property originally belongs to the first Defendant Radha.
She along with her husband/2nd Defendant borrowed a loan of Rs.3 lakhs on executing a registered mortgage deed dated 03.12.1998 in favour of one Radhakrishnan. Since the Defendants 1 and 2 failed to repay the amount due on the mortgage, the said Radhakrishnan brought the property on public auction. The Defendants 1 and 2 filed a suit in O.S.No. 1828 of 2001 on the file of learned VIII Assistant Judge, City Civil Court, Chennai and prayed for interim injunction from bringing the property in public auction. After contest on 27.6.2001 in I.A.No.9463 of 2002 a conditional order was passed with direction to the Defendants 1 and 2 to pay the monthly interest regularly to the said Radhakrishnan. Since the Defendants 1 and 2 failed to comply with the conditions, he brought the property for sale by public auction through 3/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 M/s.Katariya & Co. In the said auction, on 14.08.2003, the Plaintiff purchased the property for Rs.6,30,000/-. After due notice, on deposit of entire sale consideration by the Plaintiff, the mortgagee Radhakrishnan executed the sale deed dated 29.09.2003 in respect of the suit property under Document No.3625 of 2003 on the file of Sub-Registrar, Kodambakkam.
2.2. After the said purchase, the Plaintiff issued notice to the Defendants 1 and 2 to vacate and deliver the possession. But they refused to receive the notice. Hence, the Plaintiff filed R.C.O.P. No. 2320/03 for eviction on ground of own occupation and wilful default in payment of rent. Instead of vacating, the Defendants 1 and 2 filed a frivolous suit in O.S.No.4935 of 2004 now O.S.No.8681 of 2010 for declaring the sale as null and void. The R.C.O.P. filed by the Plaintiff has been dismissed for want of landlord and tenant relationship. Against the said order RCA has been filed and the same is pending.
2.3. In spite of purchasing the property at the cost of more than Rs.7 lakhs, the Plaintiff is not able to take possession from the Defendants. The Defendants 3 and 4 are the tenants who are paying the rent to the Defendants 1 and 2 at Rs.3,000/- per month. Since the Defendants are squatting on the 4/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 property they are liable to pay damages for use and occupation at the rate of Rs.20,000/- per month. The possession of the Defendants is illegal. The Defendants 1 and 2 have even gone to the extent of alienating the property leading to complain before the Police authorities and hence, the suit for possession of the suit property, for damages of Rs.2,00,000/- for mental agony, Rs.2,00,000/- towards past mesne profits, for directing the Defendants 1 and 2 to pay future mesne profits at the rate of Rs.20,000/- per month and for costs.
3. The written statement filed by the Defendants 1 and 2 in O.S.No.7456 of 2010 in brief are as follows:-
3.1. The suit is not maintainable either in law or on facts. The Plaintiff is not having valid title to the suit property. The suit has not been properly valued. The suit property originally belonged to 1st Defendant. Having been purchased by her under a registered sale dated 08.05.1997. She borrowed a sum of Rs.3 lakhs from one Radhakrishnan on 03.12.1998 on executing a registered mortgage deed. Towards the discharge of the said mortgage, the Defendants 1 and 2 have paid major portions of the amount due. Taking advantage of the Defendants illiteracy, the payments made by them has not been given proper credit. Without furnishing proper accounts, the mortgagee/ Radhakrishnan brought the property for sale through auctioneer Sri Raj & Co. 5/76
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 by invoking Section 69 of Transfer of Property Act. In view of such illegal threat from them, the first Defendant filed the suit in O.S.No.1828 of 2001 for the relief of permanent injunction from bringing the property for sale. In I.A.No.9463 of 2002 of the said suit, the learned Judge passed a conditional order directing her to pay a sum of Rs.50,000/- each on 28.06.2002 and 08.07.2002 which has been duly complied with. While making arrangements to pay the balance, the Defendants came to know that in the very same order the 1st Defendant was directed to pay interest on the balance to the Counsel for Radhakrishnan till the disposal of the suit. The balance sum as well as the interest due has not been specified. In any event, the later part of the order has not been informed to the Defendants by the then Counsel. The Defendants 1 and 2 are illiterates. After engaging a fresh Counsel, on verification of the records alone, they came to know about the later part of the order. The said Radhakrishnan also deliberately refused to disclose anything to the Defendants.
3.2. Suddenly, they received a notice in R.C.O.P. No.2320/2003 filed by the Plaintiff as if she has purchased the suit property through public auction. Then, on verification, it came to light that the suit property has been sold in public auction through M/s. Katariya & Co. and a sale deed was also 6/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 executed by Radhakrishnan in favour of the Plaintiff for Rs.6,30,000/-. On the date of such sale, the value of the suit property is worth about Rs.20 lakhs. On enquiry, it reveals that the Plaintiff is not having capacity to purchase the property and the alleged sale deed has been formerly executed without consideration as a sham and nominal document. The mortgagee/ Radhakrishnan is the family friend of the Plaintiff. The Plaintiff Radhakrishnan and the auctioneer M/s. Katariya & Co. colluded and created documents. No legal right would pass under the sale deed dated 29.09.2003. The R.C.O.P. filed by the Plaintiff was dismissed. These Defendants already paid a sum of Rs.3,50,000/- towards discharge of mortgage. Inspite of repeated demands, the mortgagee/Radhakrishnan has not furnished the true and proper accounts. The auctioneer without following the mandatory procedures, conducted the sale. No notice was served on the Defendants about the sale of the mortgaged property of the Defendants. These Defendants filed a suit in O.S.No.4935 of 2004 on the file of the learned II Additional Judge, City Civil Court, Chennai to declare the sale deed dated 29.09.2003 as null and void. As a counter blast to the said suit, this suit has been filed vexatiously. The Defendants 3 and 4 are neither necessary nor proper parties to the suit. It is false to allege that the auctioneer followed proper procedures in bringing the property for sale. The sale deed 29.09.2003 was executed by 7/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 the mortgagee/Radhakrishnan without receiving any consideration. The Plaintiff and the mortgagee/Radhakrishnan are colluding together to grab the suit property for a meagre sum. The other allegations made in the plaint are all false. It is baseless to allege that the Defendants are in unauthorised possession. The Plaintiff is not entitled to any amount as past and future mesne profits, damages, etc. The Plaintiff has not come to the Court with clean hands. The suit is liable to be dismissed for misjoinder of parties and there is no cause of action for the suit. The suit is liable to be dismissed with compensatory costs.
4. The plaint averments in O.S.No.8681 of 2010 in brief are as follows:
4.1. The first Plaintiff is the owner of the suit premises bearing New No.7, Vanniar Street, Choolaimedu, Chennai-600 094 measuring an extent of 904 square feet more fully described in the schedule hereunder. The first Plaintiff having purchased the same by a deed of sale dated 08.05.1997 under registered Document No.1487 of 1997 on the file of the Sub Registrar, Kodambakkam. The value of the suit property is worth more than Rs.20,00,000/- as per the prevailing market value. The suit property was subjected to mortgage with the first Defendant/Radhakrishnan dated 8/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 03.12.1998 for a sum of Rs.3,00,000/-. Towards the discharge of the said mortgage, the Plaintiffs had paid major portions of the amounts due towards principal and interest. The first Defendant without giving proper credit and furnishing the accounts with connivance brought the suit property for sale through the Auctioneer Sri Raj & Co. by invoking Section 69 of the Transfer of Property Act. In view of such illegal threat from the first Defendant, the Plaintiffs filed a suit in O.S.No. 1828 of 2001 on the file of the learned VIII Assistant Judge, City Civil Court, Chennai, seeking the relief of permanent injunction restraining the first Defendant as well as Sri Raj & Co. the Autctioneer, their men, agents, servants and representatives from in any manner bringing the suit property for sale by Public Auction and also, for direction against the first Defendant to furnish the statement of accounts pertaining to the said mortgage deed dated 03.12.1998.
4.2. The Plaintiffs took out an interim application in I.A.No.9463 of 2002. After due contest, the learned VIII Assistant Judge, City Civil Court, Chennai, was pleased to pass conditional order directing the Plaintiffs to pay a sum of Rs.50,000/- each on 28.06.2002 and 08.07.2002 and the same was duly complied. When the Plaintiffs were making arrangements to pay the balance sum towards total discharge of mortgage deed, they were surprised to know 9/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 that in the very same order passed in I.A.No.9463 of 2002, they were further directed by the learned VIII Assistant Judge, City Civil Court, Chennai, to pay the subsequent interest of the balance sum to the Counsel for first Defendant therein till the disposal of the suit. Moreover, the said order does not specify the balance sum payable by the Plaintiffs. Also the first Defendant did not specify the balance sum payable by the Plaintiffs towards the discharge of the mortgage. The payment of interest was not at all informed to the Plaintiffs' by their Counsel. The Plaintiffs are illiterates and they are fully relying upon their Counsel. Only after verification of the Court records by the subsequent Counsel, the Plaintiffs came to know about the later part of the order passed in I.A.No.9463 of 2002 i.e. to pay the interest on the balance sum of mortgage to the Counsel for the first Defendant herein. The Plaintiffs were kept in the dark and they also do not know about the actual amount payable towards interest.
Also, the first Defendant deliberately refused to disclose the same despite the Plaintiffs made hectic attempts to pay the balance sum lawfully due, to discharge the said mortgage in toto.
4.3. Thereafter, the Plaintiffs received notice in the R.C.O.P.No.2320 of 2003 from the Court of the learned XVI Small Causes Judge, Chennai. This Rent Control Original Petition was filed by the third Defendant stating that she 10/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 has purchased the suit property through the public auction. On verification, the suit property has been sold in public auction through the second Defendant and the sale deed was executed by the first Defendant in favour of third Defendant on 29-09-2003, registered as Document No.3625 of 2003 on the file of the Sub-Registrar of Kodambakkam, Chennai. On perusal of the said Sale Deed, it came to the knowledge of the Plaintiffs that the suit property had been undervalued and registered in favour of third Defendant for lower amount of Rs.6,30,000/-. The suit property is worth about Rs.20,00,000/- (Rupees Twenty Lakhs). The first and third Defendant deliberately undervalued the suit property and registered the same in collusion. It is relevant to state that even the Sale Deed has been executed without there being an exchange of sale consideration by the third Defendant to the first Defendant, as the third Defendant has no means to pay such a huge sum. The first Defendant is no other than the uncle of the third Defendant. Both of them colluded with the second Defendant and made arrangements for the sale of the suit property for lower sum. The sale deed executed by the first Defendant in favour of the third Defendant is null and void. It cannot be acted upon. In any event the said sale deed is not binding on the Plaintiffs as the sale deed is executed is not accordance with the legal requirements. The first Defendant has no valid and legal right to execute the sale deed in respect of the suit property. The first 11/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Defendant has not produced any proper accounts relating to the sale transaction dated 29.09.2003. Taking undue advantage of the fraudulent sale deed, the third Defendant claiming right over the suit property and filed an eviction proceedings against the Plaintiffs as well as their tenants in R.C.O.P. No.2320 of 2003. The Plaintiffs as Respondents in the RCOP filed counter stating that the said R.C.O.P. is not maintainable in law as there is no relationship of landlord and tenant between the Plaintiffs and the third Defendant. If it is allowed to proceed further the Plaintiffs would be greatly prejudiced and put to irreparable loss and also the very purpose of filing this suit would also be defeated.
4.4. The Plaintiffs already paid a sum of Rs.3,50,000/- towards the discharge of mortgage deed dated 03-12-1998 executed in favour of the first Defendant. The first Defendant had not furnished the true, proper and correct statement of accounts in respect of the mortgage deed till date, even though it has been specifically asked for by the Plaintiffs in earlier suit in O.S.No. 1828 of 2001. Even the sale of the suit property through the second Defendant Auctioneer. The sale has been conducted by flouting all the mandatory proceedings as contemplated under the Transfer of Property Act. There was no auction notice has been served on the Plaintiffs. The details of auction sale 12/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 more particularly the number of bidders, the prices of bidding involved etc. were not at all disclosed. The place, date and time of auction was not informed to Plaintiffs which clearly made them suspect that whether the public auction sale in respect of suit property had been properly conducted or held in accordance with the mandatory basic requirements. In the circumstances, such a fraudulent sale of the suit property is liable to be set aside. The Plaintiffs submits that they are always ready and willing to settle the balance sum which is lawfully due and payable in pursuant of the earlier mortgage, which could be only meagre sum. The first and third Defendant collusively swindled the suit property and registered the same for a paltry sum of Rs.6,30,000/- with the help of second Defendant whereas the same could fetch nearly Rs.20,00,000/- (Twenty Lakhs). Taking advantage of such fraudulent sale, the first and third Defendant along with their henchmen illegally attempting to interfere with the Plaintiffs' peaceful possession and enjoyment of the suit property. Therefore, the Plaintiffs seeks to declare the sale deed dated 29.09.2003 executed by the first Defendant in favour of the third Defendant with the collusion of the second Defendant, registered as Document No.3625 of 2003 on the file of the Sub Registrar, Kodambakkam as null and void, not executed as per law and the same will not bind the Plaintiffs. The Plaintiffs prays for permanent injunction restraining the Defendants, their men, servants or any other person claiming 13/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 through them from interfering with the Plaintiffs' peaceful possession of the suit property.
5. The written statement filed by 1st Defendant in O.S.No.8681 of 2010 in brief are as follows:-
5.1. The Plaintiffs have to prove all the allegations made in the plaint which are not expressly admitted by the first Defendant. It is false to allege that the property is worth more than Rs.20 lakhs on the date of sale through public auction. It is false to allege that the Plaintiffs paid major portion of the amount due on the mortgage. The amount paid has been properly given credit.
It is true that in O.S.No. 1828 of 2001 conditional order was passed by the Hon'ble Court. The other averments made in respect of conditional order are denied. He has advanced Rs.3 lakhs on 3.12.1998 to the Plaintiffs on mortgage. In fact, the Plaintiffs agreed to execute a sale deed in favour of the 1st Defendant after receiving Rs.3 lakhs, in case, they were unable to pay the amount due on mortgage by 02.02.2001. This Defendant has issued a legal notice calling upon the Plaintiffs to pay Rs.5,88,172/- towards the principal and interest due upto 02.02.2001 or in the alternative, to execute the sale deed as agreed. The Plaintiffs replied with false allegations. Inspite of lodging of caveat by this Defendant, the Plaintiffs obtained an interim injunction mala 14/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 fidely. The mortgage deed executed by the Plaintiffs, their son Gandhi is a witness. In O.S.No.1828/2001, I.A.No.9463 of 2002 is filed in which a conditional order directing the Plaintiffs to make a payment of Rs.75,000/-on or before 18.01.2002 has been passed. Due to non-compliance, that I.A. was dismissed. The Plaintiffs wantonly suppressed the said fact. It is false to allege that the Plaintiffs already paid Rs 3.50,000/- towards the mortgage debt. They could have very well produce the documents for such payments. In I.A.No.9463/2002 in O.S.No.1828 of 2001 the Hon'ble Court directed the Plaintiffs to pay the interest on the balance regularly on or before 10 of every month. In case of default, the mortgagee/1st Respondent is entitled to take appropriate action to bring the property for auction. The Plaintiffs failed to pay the interest stipulated by the Court and hence this Defendant had the right to bring the property for sale. There was no collusion between the Defendants as alleged by the Plaintiffs. The 3rd Defendant is having sufficient means, she is a bona fide purchaser for value. The auction sale was conducted after following the provisions of the Transfer of Property Act. The sale deed dated 29.9.2003 is true and valid and binds the Plaintiff. Hence the suit is liable to be dismissed with costs.
6. The written statement of the 2nd Defendant in O.S.No.8681 of 15/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 2010 in brief are as follows:-
6.1. The suit is false and vexatious. It is false to allege that the suit property worth about more than Rs.20 lakhs on the date of sale through public auction. Since the Plaintiffs failed to pay interest as per the conditional order dated 27.6.2002 in 1.A.No.9463/02 in O.S.No.1828 of 2001 the property was brought to auction by the 1st Defendant through this Defendant. After complying with all formalities on 14-08-2003 this Defendant conducted a public auction. The 3rd Defendant was the highest bidder for Rs.6,30,000/-.
On the same day of auction i.e., 14.08.2003, she has paid Rs.1,57,500/- on 4.9.2003 she has paid Rs.2,72,500/- and the balance amount of Rs.2,00,000/- was paid on 12.9.2003. The entire consideration was handed over to the 1st Defendant and he has executed the sale deed on 29.9.2003. It was false to allege that this Defendant failed to follow the mandatory provisions while conducting the auction.
7. The written statement filed by 3rd Defendant in O.S.No.8681 of 2010 in brief are as follows:-
7.1. The Plaintiffs mortgaged the suit property in favour of Radhakrishnan 3.12.1998 for Rs 3,00,000/-. I.A.No.9463 of 2002 in OS.No. 1828 of 2001 filed by the Plaintiffs on the file of City Civil Court, Chennai, in 16/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 which a conditional order was passed directing the Plaintiffs to make payment of monthly interest. Since the Plaintiffs failed to comply with the conditional order, the mortgagee/Radhakrishnan brought the property for sale through the second Defendant. In the auction held, the 3rd Defendant was the successful bidder. In pursuance of that the first Defendant executed the sale deed in favour of this Defendant on 29.9.2003. The notices issued by this Defendant to the Plaintiffs were deliberately returned as not claimed. In the portion of the suit property Subramani and Kumar are in possession as tenants. Since the 3rd Defendant is residing in a rented house she has filed R.C.O.P. on the ground of own occupation and wilful default. It was dismissed for want of landlord and tenant relationship. In R.C.O.P. the Plaintiffs denied the title of the 3rd Defendant. The Plaintiffs are in unauthorised possession and hence the 3rd Defendant filed a suit for possession. It is false to allege that the Defendants are colluded together to grab the property for meager amount. The intention of the Plaintiff is to keep the property with them unauthorisedly without paying anything. It is false to allege that the 1st Defendant is the uncle of 3rd Defendant. The Plaintiffs are not entitled to any reliefs prayed in the suit and the suit is liable to be dismissed with costs.
8. On the above pleadings the following issues and additional issues have been framed in O.S.No. 7456/2010:-
17/76
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
1. Whether the Plaintiff is entitled for seeking direction against the Defendants 1 and 2 to vacate and deliver vacant possession of the suit property to the Plaintiff or not?
2. Whether the Defendants 1 and 2 are liable to pay the Plaintiff a sum of Rs 2,00,000/- towards damages for physical and mental torture caused to the Plaintiff or not?
3. Whether the Defendants 1 and 2 are liable to pay the Plaintiff a sum of Rs.2,00,000/- towards mesne profit at the rate of Rs.10,000/- per month from 29.9.2003 to 29.5.2005 for 20 months or not?
4. Whether the Defendants 1 and 2 are liable to pay the Plaintiff a sum of Rs.20,000/- per month towards future mesne profit from the date of plaint till date of vacating the suit property or not ?
8.1. Additional Issues:
1. Whether the auction dated 14.8.2003 and the sale deed executed on 29.09.2003 are fraudulent and collusion?
2. Whether the Plaintiff is a bona fide purchaser for value?
3. Whether the suit has been valued properly for the purpose of Court fee and jurisdiction?
4. To what other relief?
9. The following issues have been framed in O.S.No.8681/2010:
1. Whether the Plaintiffs are entitled to the relief of declaration as sought for ?
2. Whether the Plaintiffs are entitled to the relief of injunction as prayed for ?
18/76
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
3. To what relief if any, the Plaintiffs are entitled to ?
10. The learned Counsel for the Appellant filed written arguments which lead to the filing of the suit in O.S.No.7456 of 2010 by the Appellant are as under:
10.1. The Respondents 1 and 2 had borrowed a loan of Rs.3 lakhs from N.Radhakrishnan, 3rd Respondent in A.S.No.344 of 2012 and they have mortgaged the suit property at Door No. 7, Vannier Street, Trustpuram, 10 th Cross Extension, Choolaimedu, Chennai – 600094 through mortgage deed dated 03.12.1998, registered as document number 3627 of 1998 (Ex.A-2).
10.2. The terms of Ex.A-2 disclose that the Respondents who had acquired the Suit Schedule Property through Sale deed under Doc.
No.1487/1997 (Ex.A-1) and mortgaging the same to the third Respondent for the money borrowed, namely Rs. 3 lakhs. The Respondents 1 and 2 have agreed to pay interest at the rate of Rs.3/- per hundred and the Respondents 1 and 2 have agreed that the entire loan money along with interest will be repaid within a period of 26 months.
10.3. The Respondents 1 and 2 have also agreed that the 3rd 19/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Respondent will have authority to invoke Section 69 and 69A of the Transfer of Property Act and sell the property without the intervention of the Court in the event of a failure to honour the mortgage terms.
10.4. The Respondent-3 herein who was not repaid with the mortgage debt has taken action to bring the property for sale through the Auctioneers Sri Raj & Co, immediately thereafter the Respondents 1 and 2 had filed a suit for permanent injunction in O.S.No. 1828 of 2001 as against Respondent 3 and the then auctioneers Sri Raj & Co. The plaint in O.S.No.1828 of 2001 is marked as Ex.A-3. In the said suit an Interlocutory Application was filed by the Respondents 1 & 2 in I.A. No. 9463 of 2002 in which an order was passed on 27.06.2002 which is marked as Ex.A-4. The order directed the Respondents 1 and 2 to pay Rs.50,000/- on or before 29.06.2022 and another sum of Rs.50,000/- on or before 08.07.2002. The Respondents 1 and 2 were also directed to thereafter pay the interest payable on the balance money regularly on or before the 10th of every month, till the disposal of the suit. If the same was not paid then the 3rd Respondent was at liberty to take appropriate action to bring the suit property for auction.
10.5. As there was no compliance of the Interim injunction order by the 20/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Respondents 1 and 2 herein, the suit property was brought up for sale through the auctioneers M/s Katariya & Co, the 4th Respondent herein and the suit property was sold by the 3rd Respondent in the public auction to the Appellant.
10.6. The Appellant on advice, initiated action by filing an eviction petition in R.C.O.P. No.2320 of 2003 before the learned XVI Judge, Small Causes Court and a notice was sent to the Respondents 1 and 2 which is marked as Ex.A-5 and also to one Mr. Subramaniam and Mr. Kumar, who were tenants under the Respondents 1 and 2 in the suit property. The Petition was filed by the Appellant under Section 10(2)(1) and 10(3) (a) (i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, which is marked as Ex.A-6. The prayer by the Appellant was that, since she has acquired the suit property through public auction by a sale deed dated 29.09.2003 registered as Document No. 3625 of 2003. The Respondents 1 and 2 along with Mr.Subramaniam and Mr.Kumar who were in occupation of the suit property were required to pay rents and that the Appellant had sent them notices dated 30.05.2003 and 31.10.2003. Since they did not respond to the notice, they were to be classified as continuous defaulters and that they have to be evicted from the Suit Property and so the petition was filed.
21/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 10.7. The Respondents 1 and 2 had filed their counter statement in R.C.O.P.No. 2320 of 2003 stating that the latter part of the conditional order passed in the Interlocutory Application was not informed by their Counsel and since they were uneducated, they were not aware of the condition that they had to pay the monthly interest to the 3rd Respondent. So they have changed their Counsel and that their present Counsel verified and informed the Respondents 1 and 2 about the said condition and that the 3rd Respondent was not entitled to sell the property and though the Appellant had purchased the suit property she was not entitled to collect the rents or claim rents and that the R.C.O.P. was required to be dismissed.
10.8. After hearing and examining both the parties, R.C.O.P. No.2320 of 2003 was dismissed on 16.12.2004 as there was no landlord - tenant relationship and that the Appellant was only entitled to file a suit for ejectment before the Civil Court. The order and decretal order in R.C.O.P.No.2320 of 2003 was marked as Ex.A-10 and Ex.A-11.
10.9. After the dismissal of the R.C.O.P. No. 2320 of 2003 the Appellant had filed the suit for possession in C.S. No. 588 of 2005 for evicting 22/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 the Respondents 1 and 2, which was then transferred and renumbered as O.S. No. 7456 of 2010
11. The learned Counsel for the Appellants filed written arguments which lead to the filing of the suit in O.S.No.8681 of 2010 by the Respondents 1 and 2 are as under:
11.1. The Respondents 1 and 2 had mortgaged the suit property to the 3rd Respondent through a mortgage deed dated 03.12.1998 which is marked as Ex.A-2 and borrowed Rs.3 lakhs. Since there was no payment of the mortgage money as per the terms of the mortgage deed, the 3rd Respondent had taken action under Section 69 of the Transfer of Property Act to sell the property through public auction through the auctioneers, M/s Raj & Co against which a suit for injunction in O.S.No.1828 of 2001 was filed by the Respondents 1 and 2 and in the Interlocutory Application of the said suit a conditional order was passed, which according to the Respondents 1 and 2 were unaware and since the condition was not complied with, the 3 rd Respondent had sold the property through public auction through the auctioneers, namely, the 4th Respondent, M/s Katariya & Co and a document of sale bearing No.3625 of 2003 (Ex.A-7) was executed in favour of the 23/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Appellant. The said sale deed has been alleged to be a collusive sale without transfer of any consideration and so the suit for declaration that the sale deed under Document No.3625 of 2003 as null and void was filed by the Respondents 1 and 2 in O.S.No. 4935 of 2004, which was later renumbered as O.S.No.8681 of 2010, and which was decreed in favour of the Respondents 1 and 2 as against which the AS No. 344 of 2012 has been filed.
11.2. Both the suits, namely, O.S.No. 7456 of 2010 and O.S.No. 8681 of 2010 were jointly heard and a common judgment was passed by the learned Additional District Judge, Fast Track Court-I, City Civil Court, Chennai, on 29.10.2011.
12. Findings in the common judgment:
12.1. The Leaned Judge has held that the order passed in I.A.No. 9463 of 2002 in O.S.No. 1828 of 2001 is vague and unenforceable because the learned Judge therein has not given any finding as to what is the principal sum due and what was the interest and on what amount the interest due was payable after payment of Rs 50.000/- in two installments.
12.2. This finding of the Lower Court is absolutely wrong because there 24/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 is a mortgage deed which is a registered document under Ex. A-2. And the mortgage deed is clearly disclosing the money borrowed as Rs.3 lakhs and it is also disclosing the interest on the money payable at Rs.3/- per hundred. Under Section 92 of the Evidence Act, oral evidence cannot substitute a registered instrument. So the finding of the learned Judge that since the Respondents 1 and 2 have disputed the amount of money borrowed, the order in I.A. No. 9463 of 2002 under Ex. A-4 cannot be executed.
12.3. Though such a finding is being given it is held by the Lower Court that a clarification should have been sought by the Respondents 1 and 2 and they should have thereafter complied with the order and since the order in I.A.No.9463 of 2002 under Ex.A-4 was not complied with, then the 3rd Respondent was well within his right to auction the property under Section 69 of the Transfer of Property Act, which is actually disputed by the Respondents 1 and 2 as a sale by collusion.
12.4. The Learned Judge has further gone ahead and given a finding that the auction sale was a collusive sale in that no proper procedure has been followed, there is no proper consideration has been fixed and that the Appellant who has purchased the property is the daughter of the friend of the 25/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 3rd Respondent and that the transaction which has happened under Section 69 of the Transfer of Property Act was not a proper transaction and with the said findings the learned Judge has allowed the suit filed by the Respondents 1 and
2 for declaring the sale deed executed through the Auction sale, namely Ex.A- 7 as null and void and that the Respondents 1 and 2 are entitled for a permanent injunction and that the Appellant was not entitled for any other reliefs including the suit for possession and so the same was dismissed
13. Grounds for challenge of the decree and judgment passed by the lower Court:
13.1. It is not prohibited under Law for the Appellant who was the daughter of the friend of the 3rd Respondent to purchase the property. Towards this fact, the learned Judge has held that since it was an admitted fact in the cross examination of D.W-1 and D.W-3 that the Appellant was the daughter of the friend of Respondent 3. The auction sale and its associated facts should be checked with caution.
13.2. There is no dispute that there was a deed of mortgage executed by the Respondents 1 and 2 in favour of the 3rd Respondent and a sum of Rs.3 26/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 lakhs was borrowed for which the agreed time period for repayment was 26 months along with interest at the rate of Rs.3/- per hundred.
13.3. The 3rd Respondent was not repaid by the Respondents 1 and 2 and so the 3rd Respondent has sent a notice for auctioning the property under Section 69 of the Transfer of Property Act on 02.12.2000. The copy of this notice has not been marked, the same has been replied by the Respondents 1 and 2 through their Advocate Mr. J.J.R. Edwin on 09.01.2001 which was marked as Ex. B-1. It is only pursuant to this suit in O.S.No.1828 of 2001.
The plaint in O.S.No. 1828 of 2001 under Ex.A-3 is being filed by the Respondents 1 and 2 as against the notice which was sent on 02.12.2000. A bare reading of the suit Plaint in O.S.No. 1828 of 2001 will disclose that the Respondents 1 and 2 have prayed, a) to declare the proposed auction to be brought for the suit property as null and void; b) to declare that the mortgage deed alleged to have been executed does not contain the provisions of Section 69 of the Transfer of Property Act and that the mortgage deed has to be declared as null and void; c) permanent injunction and d) directing the Defendant-1 to furnish all statement of account. Though 4 prayers have been made as the prayer (a) and (b) were not maintainable, both the prayers have been struck off and the prayer for injunction and statement of account alone 27/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 retained.
13.4. From the above, it becomes vividly clear that as provided under Section 69(2)(a) of Transfer of Property Act, the statutory notice of 3 months required under law has already been served on the Respondents 1 and 2 by the 3rd Respondent before the Auction sale. It is pursuant to this notice the suit for Injunction O.S. No.1828 of 2001 was filed, in which a conditional order was passed against the Respondents 1 and 2 in I.A. No. 9463 of 2002 under Ex.A-
4. In the event of the failure to comply with the conditional order in I.A.No.9063 of 2002, then the Respondent-3 was free to proceed under Section 69 of the Transfer of Property Act. When such is the order and when the 3rd Respondent has already issued the Statutory notice under Section 69(2)(a) of the Transfer of Property Act, there was no prohibition for selling the property for the 3rd Respondent through any auctioneer instead of Sri Raj & Co, who were parties to the suit in O.S.No.1828 of 2001 and no further notice was required to be issued to the Respondents 1 and 2 for conducting a further auction.
13.5. So the finding of the learned Judge that no proper notice of the auction was given to the Respondents 1 and 2 as held in the judgment in page 28/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 15 paragraphs 4 and 5 is not maintainable, because there is no requirement under law to give a second notice for the auction sale and the suit in OS 1828 of 2001 is a clear proof that the Respondents 1 and 2 have been put on clear notice as required under law regarding the auction sale.
13.6. Now coming to the question whether the Auction sale was properly conducted by the auctioneers, M/s Katariya & Co the learned Judge has completely ignored the following documents:
(i) Ex.B-5 is the Auction sale notice issued by M/s Katariya & Co in which it is clearly disclosed that the property was going to be sold by the Auctioneers on 14.08.2023 at the place where the suit property was situated.
The time of Auction is also fixed at 4.00 pm and the place of auction is also fixed. The conditions of the sale are also found overleaf. When a clear notice was available regarding the sale which was to be conducted by the 4th Respondent auctioneers the learned Judge questioning the modus operandi of the auction was improper and so the order of the learned Judge is not maintainable and the same requires to be set aside.
(ii). The Learned Judge has also not taken into consideration that after the completion of the sale, the Appellant has sent a notice dated 30.09.2003 which was marked as Ex. B-12 to the Respondents 1 and 2 to vacate and hand 29/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 over the property and she has clearly stated that she has purchased the suit property through document of sale bearing number 3625 of 2003. The notice under Ex.B-12 dated 30.09.2003 sent by the Appellant which has not been received by the Respondents 1 and 2 on the same day and they have returned the envelopes and the same has also been filed as Ex.B-13 and the endorsement on the envelopes clearly disclose that the letters were “Not Claimed”. So a conclusion can be arrived that the Respondents 1 and 2 were aware of the contents of the notice and that they have wantonly refused to claim the notice.
14. After they refuse to receive the notice under Ex.B-12 they send a notice on 03.10.2003 under Ex.B-2 to the Respondents 3 and 4 herein, namely, Radhakrishnan and the auctioneer, asking for the details regarding the sale which has taken place through the auction proceedings and the details of the purchaser. If the Respondents 1 and 2 had received the notice dated 30.09.2003 under Ex.B-12 they would have got all the details relating to the transaction and this is a failure on the part of the Respondents. The learned Judge has not taken this fact into consideration while deciding the issues framed.
30/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
15. The Learned Judge who has held that no proper notice of the sale was given to the Respondents 1 and 2 has also completely ignored the document under Ex.B-21 which is the advertisement issued in the News Paper, Daily Thanthi by the Auctioneers, M/s Katariya & Co. on 07.08.2003 and in which the date and time of auction has been clearly spelt out as 14.08.2003 at 4.00 p.m.
16. The Learned Judge in paragraph 23 of the Judgment also goes on to hold that the Respondents 1 and 2 have filed a vexatious suit in O.S.No. 1828 of 2001 with a deliberate false allegation that they have only borrowed a sum of Rs.30,000/- and instead of settling the matter by discharging the mortgage and that is the root cause of all the complications. When such be the case as the foremost litigation initiated by the Respondents 1 and 2 in O.S. No.1828 of 2001 itself is a false one then the learned Judge would have been right only in dismissing the suit filed in O.S.No.8681 of 2010 and allow the suit filed in O.S.No.7456 of 2010.
17. The learned Counsel for the Respondents 5 to 7 filed written arguments inviting the attention of this Court with regard to non-compliance of conditional order dated 27.06.2002 in I.A.No.9463 of 2002 in O.S.No.1828 31/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 of 2001:-
It is pertinent to note that prior to institution of these suits, the Respondents 1&2 had filed a suit vide O.S.No. 1828/2001 Permanent Injunction restraining the said Mortgagee Radhakrishnan from bringing the suit property into public auction on 29.06.2002 on the file of VIII Assistant City Civil Court, Chennai. In lieu of the same, an order dated 27.06.2002 application vide I.A.No.9463/2002 (Ex.A4 Pg.No.335 of Consolidated Typeset) was passed by the Hon'ble Court stating as follows:
"The Petitioners are hereby directed to pay a sum of Rs.50,000/- on or before 29.06.2002 to the Counsel for the 1" Respondent and again another sum of Rs.50,000/- on or before 08.07.2002. Further, the Petitioners are hereby directed to pay the interest payable on the balance amount regularly to the Counsel for the Respondent without fail till the disposal of the suit. If the interest amount is not paid on or before 10th of every month, it is open for the " Respondent to take appropriate action to bring the suit property for auction.
18. This order dated 27.06.2002 is vague in nature as it failed to ascertain the actual mortgage amount as well as the actual due on the date of this suit proceeding. No document for claiming appropriate due amount was filed by the said Mortgagee viz., Radhakrishnan was filed in the said suit. Further, the Respondent's sought time extension for complying this order dated 27.06.2002 and also paid a sum of Rs.1,00,000/- which was admitted by the said Radhakrishnan in his deposition as D.W-1.
32/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
19. The learned Counsel for the Respondents 5 to 7 invited the attention of this Court to the deposition of D.W-1 which reads as under:-
////29/06/2002 U: 50 MapuKk; 08/07/2002 y; U:50 MapuKk; brYj;j ntz;Lbkd th/rh/M/4 cj;jutpy; cs;sJ/ mjpy;
thjpfs; fhy; ePog;g[ nfhup kD jhf;fy; bra;j gpd;dpl;L U: 1 yl;rk; bkhj;j gzk; bgw;Wf;bfhz;nld;/ ePjpkd;wk; epge;jid cj;jut[ gpd;gw;wjhf Fwpg;gpy; vGjpa[s;sJ vd;why; bgwg;gl;l bjhif kw;Wk; ghf;fpa[s;s epYit bjhif gw;wp fzf;F efy; jhf;fy; bra;njhk; me;j efiy ,e;j tHf;fpy; jhf;fy;
bra;atpy;iy///”
20. Even after admitting the same, the said mortgage had considered the said order dated 27.06.2002 to be uncompiled as the interest was not paid by the Respondents 1 and 2 and had clandestinely brought the suit property into alleged auction sale through another auctioneer viz., Katariya & Co., and sold the property to the Appellant herein on 14.08.2003 through alleged auction sale. Subsequently, the sale deed dated 29.09.2003 vide Doc.No.3625/2003 was registered in favour of this Appellant on the file of Sub Registrar Office, Kodambakkam.
21. The learned Counsel for the Respondents 5 to 7 invited the attention of this Court to collusion of Mortgagee, auctioneer and auction purchaser:
21.1. It is an admitted fact that the said Radhakrishnan i.e., Mortgagee 33/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 and the Appellant i.e., the Auction purchaser are well known to each. It is pertinent to note that the Appellant is none other than the Mortgagee's Friend's daughter who are well known to each other for 40 years.
Deposition of D.W-1 (Pg 118 of Consolidated Typed set) “.....3k; gpujpthjp nrhgpah yhud;!; thlif fl;Lg;ghL kD tprhuizapd; nghJ mtUila jfg;gdhUk; ehDk; 40 Mz;L fhy Flk;g ez;gu;fs; vd;W brhd;dhy; rupjhd;/ 3k;
gpujpthjpapd; tPL tz;zhug;ngl;ilapy; cs;sJ/ mtu;
Vyj;jpw;F te;jhu;/ mtu; Vyk; gw;wp jpdj;je;jp ngg;gupy; ghu;j;Js;shu;////” Deposition of D.W-3 (pg 155 of Consolidated typed set) “....vd;Dila jfg;gdhUk; uhjhfpUc&;zDk; Rkhu; 40 Mz;Lfhy ez;gu;fs; Vy brhj;J uhjhfpUc&;zd; cila gf;fj;J tPL” Hence, the Appellant ought to be considered as a money lender for the reason that there is collusion between the parties.
21.2. Apart from this, the Appellant had made contrary statements regarding her enquiry at the Office of Auctioneer. In her cross examination, the Appellant had stated that she had visited auctioneer's office and enquired regarding such alleged auction sale which is mentioned as follows:
Deposition of D.W-3 (Pg.No.155 of Consolidated Typed set) “...ngg;gu; tpsk;guk; 07/08/2003 md;W ghu;j;njd;/ 8k; njjp 34/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 rpe;jhjpupg;ngl;ilapypUe;J fl;lhupah md; nfh mYtyfj;jpw;F brd;W tprhupj;njd;/ vd;Dld; vd; jhahu; te;jhu;/ tHf;fwp["u; ahiua[k; miHj;Jr; bry;ytpy;iy/ m';F ehd; tprhupj;jjpy; nfhl; cj;jut[ cs;sJ th';fyhk; vd;W brhd;dhu;fs;///"
The same is contrary to her deposition made in R.C.O.P. proceedings wherein she had stated that she had not visited such office and the same is as follows:
Deposition of D.W-3 in R.C.O.P. proceedings (Pg 229 of Consolidated Typed set):
“....tpsk;guk; ghu;j;jt[ld; 14/08/2003 bghJ Vyj;jpy; fye;J bfhz;nld;/ ahiua[k; nfl;ftpy;iy/ ve;j tprhuiza[k; bra;atpy;iy/ ahu; Vyk; tpll; J vd;why; fl;lhupah mz;l; nfh Vyk; tpl;lhu;fs;/// ////me;j mYtyfj;jpw;F nghdJk; fpilahJ/ tpsk;guk; ghu;j;jt[ld; neuhf 14/08/2003 md;W Vy ,lj;jpw;F brd;nwd;/////” Deposition of D.W-1 (Pg.120 of Consolidated typed set):
“...Vy njjpapy; Vyj;jpw;F Kd;ghf ehd; 3k; gpujpthjpia ghu;j;njd;/ mg;nghJ vdf;Fk; 3k; gpujpthjpf;Fk; ve;j ngr;R thu;j;ija[k; epfHtpy;iy Vyk; Koe;j gpwFk; 3k; gpujpthjpaplk; md;W ngrtpy;iy///” Deposition of D.W-3 (Pg 155 of Consolidated typed set) “....vd;Dila jfg;gdhUk; uhjhfpUc&;zDk; Rkhu; 40 Mz;Lfhy ez;gu;fs;/ Vy brhj;J uhjhfpUc&;zdpd; gf;fj;J tPL/ uhjhfpUc&;zdplk; ehd; vJt[k; ngrtpy;iy/////” 35/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 21.3. No such an alleged auction sale conducted by the Mortgagee:
a) No notice in writing requiring the payment of the default due amount has been served to the Respondents 1 & 2 at the time prior to alleged auction sale and hence, such alleged sale is contrary to Section 69 of Transfer of Property Act. Hence, no auction sale has been conducted by the Mortgagee relating to the suit schedule property because of the reason that the collusion between the Mortgagee and the Auction purchaser would be revealed and thus, had sold the property surreptitiously. The deposition of the auctioneer's Representative indicates that no notice is served to the Respondents 1 & 2 regarding such alleged auction sale.
Deposition of D.W-2 “...brhj;J Vyk; nghd tptuj;ij mlkhdk; bra;jtUf;F mDg;g[nthk;/ mjw;F Mjhuk; jhf;fy; bra;atpy;iy///” This is a grave error and also against the actual/true owner i.e., the 1st Respondent herein. Sale or transfer of mortgaged property cannot take place without duly informing the mortgagor about the date and time of such sale. Further, such notice is required to enable the Mortgagor/Respondents 1 & 2 to take all efforts to retain their ownership by tendering dues to the Mortgagee. Hence, such sale effected without complying with statutory requirement would be a violation and would nullify the ultimate sale.
36/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
b) It is stated that there is no wide publication made for the alleged auction sale dated 14.08.2003. Needless to state that the Mortgagee viz., Radhakrishnan published advertisement dated 07.07.2003 in Tamil Daily "DhinaThanthi" alone for public auction and failed to publish in English Daily Newspaper. Furthermore, the said Mortgagee viz., Radhakrishnan, the auction purchaser i.e., the Appellant and the auctioneer never disclosed the bidders' name and particulars who participated in the alleged Public Auction dated 14.08.2003. Their blanket statement was also affirmed by the Auctioneer's representative i.e., D.W-2. In addition to that, D.W-1 i.e., the said Mortgagee viz., Radhakrishnan admitted that the balance amount of Rs.26,000/- was received by the Auctioneer's representative. The D.W-2 i.e., the Auctioneer's representative did not file any Statement of Accounts or any particulars for expenditure spent for alleged Public Auction dated 14.08.2003.
c) No document had been filed by the Auctioneer to show that proper notice was sent to the Respondents 1&2 with the details about the non- compliance of conditional order passed by Court in I.A.No.9463 of 2002 in O.S.No.1828 of 2001 and the balance amount to be paid by them.
d) Neither the Mortgagee nor the Auctioneer had chosen to produce any 37/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 document to show the market value of the suit property on the date of such alleged auction sale i.e., 29.09.2003.
e) No register containing the details of bidders, bid amount quoted, final bid amount, signatures of bidders are produced before the trial Court.
f) No tom tom held regarding such alleged auction sale. The deposition of the auctioneer's Representative makes it clear that no proper auction sale was conducted by them.
Deposition of D.W-2 (Page 134 of consolidated typed set) “...ngg;gu;
tpsk;guk; Vyjhuu;fs; bfhLf;f ntz;Lk; Rkhu; 7 ehl;fs; Kd;ghf bfhLj;njhk; Vy njjp epu;zak; bra;tjw;F Fiwe;jgl;r fhy bfL vJt[k; fpilahJ/ Fiwe;jgl;rk; 21 ehl;fs; fhy ,ilbtsp ,Uf;f ntz;Lbkd;why; rupjhd;/ Vyk; elbgWtjw;F 15 ehl;fs; Kd;ghf lhk; lhk; tpsk;guk; bra;ag;gl ntz;Lk; vd;why; vdf;F bjupahJ ,e;j Vyj;ij bghWj;J vj;jid ehl;fs; Kd;djhf lhk; lhk; bra;ag;gl;lJ gw;wp vdf;F bjupahJ///”
h) Apart from this, the said suit vide O.S.No. 1828/2001 has been pending at the time of such auction sale dated 14.08.2003 whereas, no intimation was brought before the said trial Court either prior or subsequent to such alleged auction sale by the said Radhakrishnan, Mortgagee. The trial Court had rightly pointed out the procedures followed in bringing the property for auction must be considered and stated the following in Page No.552 of 38/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Consolidate Typeset :
"... That being the circumstances we have to consider the procedures followed in bringing the property for auction with atmost caution, The alleged auction was the property was sold in the auction the suit in O.S.No. 1828 of 2001 becomes infructuous. The first Defendant has not filed any memo into the Court for disposal of the suit as infructuous. On the other hand judgment was pronounced on 08.03.2005 much after the auction sale. The Plaintiffs contended that they were in dark about the auction sale. They have not been informed etc., The Plaintiff and first Defendant are the neighbours. The first Defendant claims that the auction was held at the suit premises. No documents has been filed to prove that in fact an auction was conducted on 14.08.2003. No independent witness was examined to prove that auction. In this aspect, we have to consider the evidence of the 2nd Defendant. He has been examined as D.W-2. He claims himself as a licenced auctioneer. Originally at the time of filing of the suit in O.S.No. 1828 of 2001 the Plaintiffs tried to bring the property for auction through one Sri Raj & Co. Leaving that Sri Raj & Co, the first Defendant chosen to bring the property for auction through the 2nd Defendant Katariya & Co. There was a suit pending against Sri Raj & Co. Though there was no interim order, the suit was pending, it might have been the reason for not choosing the Raj & co as auctioneer.
The D.W-2 in his proof affidavit has categorically stated that he was aware of the Court proceedings and a Court order was shown to him and accordingly he brought the property for sale. His representative one Prabhakaran conducted the auction on 14.08.2003. there was proper tom tom and notice etc. In his cross he deposed as follows:
,e;j tHf;F rk;ge;jg;gl;l Vyk; jhd; jdp egUf;fhf ehd; Kjd;
Kjyhf elj;jpa Vyk;/ epWtd';fSf;fhf gy Vyk;
elj;jpa[s;nsd;/ Vyk; rk;ge;jkhf tHf;F Vw;gl;L ,Utiu
ePjpkd;wj;jpy; ehd; rhl;rpak; mspf;ftpy;iy/ ,Jjhd;
Kjd;Kiw/ jug;gpdu;ffSf;fpilna Kd;du; eilbgw;w
39/76
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm )
A.S.Nos.343 and 344 of 2012
tptfhu';fs; uhjhfpUc&;;zd; brhy;yp jhd; bjupa[k;/ Vyk;
elj;Jtjw;fhf ntz;o vd;dplk; uhjhfpUc&;zd; mlkhd gj;jpu efy; kw;Wk; nfhu;l; cj;jut[ Mfpatw;iw xg;gilj;jhu;/ me;j cj;jut[ th/ rh/ M/4 vd;W vd;dhy; brhy;y KoahJ/ me;j cj;juit ehd; ghu;j;J tpl;l uhjhfpUc&;zd; vd;gtuplnk bfhLj;J tpl;nld;/ Vyk; mlkhdk; itj;jtUf;Fk; mlkhdk; bgw;wtUf;Fk; nehl;O!; mDg;g ntz;Lk; gpwF Vyk; epu;zak; bra;J me;j nehl;Oira[k; mtu;fSf;F mDg;gt[k; ngg;gupy; tpsk;guk; bra;nthk; Vyk; tpLtjw;F 5 ehl;fSf;F Kd;g[ Vyk; eilbgWk; brhj;Jf;F brd;W lhk; lhk; moj;J tpsk;guk; bra;nthk;/ nehl;O!; moj;J me;j gFjpapy; xl;Lnthk;/ mJ bjhlu;ghf Mtz';fs; vJt[k; jhf;fy; bra;atpy;iy/ 14/08/2003 Vyk; ele;j ,lj;jpw;F ehd; nghftpy;iy/ mjdhy; m';F vd;d ele;jJ vd;W neuoahf bjupahJ/ CHpau;fs; brhy;yp jhd; bjupa[k;/ mlkhd jhuUf;F tuntz;oa ghf;fp vt;tst[ vd;W rk;ge;jkhft[k; mtUila Fiwe;jgl;r tpiy bjhlu;ghft[k;
MtzKk; vJt[k; jhf;fy; bra;atpy;iy/ mtUf;F tu ntz;oa ghf;fp vt;tst[ vd;W 1Mk; gpujpthjp brhd;dhu;/ Mdhy; vdf;F "hgfkpy;iy/ ///,e;j tHf;F Vyk; Koe;j gpwF jhd; fkpc&d; fl;lzk; th';fg;gl;Ls;sJ njjp "hgfkpy;iy/ fkpc&id jtpu kw;w bryt[ bjhifia Kd;Tl;ona th';fg;gl;lJ/ mJ bjhlu;ghf Mtzk; jhf;fy; bra;ag;gltpy;iy/ ////Vyj;jpy; vj;jid ngu; fye;J bfhz;lhu;fs; vd;gJ gw;wp bjupahJ gpughfud; jw;nghJ v';F ,Uf;fpwhu; vd;gJ gw;wpa[k; bjupahJ ,/vk;/o bjhif Vyj;jpy; fye;J bfhs;nthuplk; tR{ypj;J tpLnthk; Vyk; Koe;jt[ld; jpUk;g bfhLj;J tpLnthk; mJ bjhlu;ghd urPJ efy; kw;Wk; fzf;F g[j;jf';fs; jhf;fy; bra;Js;nshk;////” 21.4. Monetary Fraud in conduct of auction sale:
a) It is pertinent to note that no document has been produced to prove 40/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 the market value of the Property at the time of alleged auction sale. Needless to state that the property would have fetched a higher value. The entire extent of the property is 904 Sq.ft. the land value shown in Ex.A-7 is fixed at Rs.1050/-per sq.ft. This being so, the value falls to be Rs.9,49,200 whereas, the Mortgagee had sold the property for mere Rs.6,30,000/- through Ex.A7 to the Appellant herein. This being so, the Mortgagee and the Auction Purchaser i.e., the Appellant had clearly admitted they did not check the price of the Suit Schedule Property. Thus, it is evident that the Mortgagee and the Auction Purchaser i.e., the Appellant had colluded with each other and transferred the property for such a throwaway price. Actually, no sale consideration is passed during the auction for the reason that the said alleged public auction is a eyewash.
b) Further, the surplus amount i.e., balance amount remaining after deducting the mortgaged amount and interests were not either intimated or handed over to the Respondents 1&2 herein. The said Mortgagee admits that he chose to keep the surplus amount with himself for cost and expenses incurred by him for such alleged sale and no documents were filed for such expenses.
Deposition of D.W-1 (Pg No.120 & 121 of Consolidated typed set) 41/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 “...Vy bjhifapy; mlkhd ghf;fp bjhif nghf kPjKs;s bjhifia brhj;jpy; cupikahsu;fSf;F bfhLf;f ntz;Lk;
vd;gJ bjupa[k;/ mt;thwhd Kaw;rp vJt[k; ,e;j Vyk;
bjhlu;ghf eilbgwtpy;iy mjw;fhd mtrpakpy;iy/
Vyj;bjhifapy; U:gha; 26.000 kl;Lnk fld; nghf kPjk;
,Ue;jJ/ mjid ehd; tHf;F elj;jpa brytpw;fhf rup bra;J bfhz;nld;/ Vyk; tpl;l brytpw;fhf ntz;o vLj;Jf;
bfhz;nld;/ mJ bjhlu;ghf fzf;F gl;oay; vJt[k; tHf;fpy; jhf;fy; bra;atpy;iy/ fl;lhupah md; nfhtpw;F U:gha; 15.000 brYj;jpndd;/ mjw;F urPJ cs;sJ jhf;fy; bra;atpy;iy/ me;j Vyj;jpy; U:gha; 35 MapuKk; brythdJ///” “...Vyk; ele;j njjpapy; m/t/vz;/ 1828/2001 epYitapy; jhd; ,Ue;jJ/ Vyk; elj;jp brhj;J tpw;f;fg;gl;l tptuj;ij me;j tHf;fpy; ePjpkd;wj;jpy; bjuptpf;fg;gltpy;iy/ Vyj;jpd; mog;gilapy; fpiua[k; vGjpf; bfhLj;j gpwFk; ehd; thjpf;F nehl;O!; vJt[k; mDg;gtpy;iy/ Vyk; Koe;j gpwFk; ehd; nehl;O!; vJt[k; mDg;gtpy;iy///”
c) Further, the Mortgagee had also failed to inform the same to the Auctioneer as deposed by D.W-2 (Pg. 134 of consolidated typed set) which reads as under:
“....uhjhfpUc&;zd; Vyk; tpLtjw;fhf vdf;F bfhLj;j ntz;Lnfhs; fojj;ij jhf;fy; bra;atpy;iy/ mlkhdjhuUf;F tu ntz;oa ghf;fp vt;tst[ vd;W rk;ke;jkhft[k; mtUila Fiwe;jgl;r tpiy bjhlu;ghft[k; MtzKk; ghf;fp vt;tst[ vd;W 1Mk; gpujpthjp brhd;dhu;/ Mdhy; vdf;F "hgfkpy;iy mijg; gw;wpa tptuj;ij tHf;FiuapYk; gpukhz thf;FK:yj;jpYk; brhy;ytpy;iy////”
d) It is to be noted that transparent dealing/transaction is the essence of the matter. Such oblique transactions, underhand dealing and inconsistent 42/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 with the honest realization of the mortgaged money on the part of the mortgagee is sufficiently destructive of all pretension on bona fide. Hence, the such alleged sale is held to be unfair and has to be set aside.
e) Reliance is placed upon in 2006 (4) SCC 476 (Saheb Khan -Vs-
Mohd. Yousufuddin&Ots), wherein the Hon'ble Supreme Court had quoted twin conditions precedent for setting aside Auction Sale. In lieu of Order XXI, Rule 90 of CPC, for any auction sale to be set aside, (i) establishing a material irregularity or fraud and (ii) establishing to the satisfaction of the Court that the material irregularity or fraud had resulted in substantial injury to the Mortgagor. In the case on hand, both the conditions precedents had not been fulfilled for the reason of lack of notice, failure to intimate the Court, collusion with the prospective purchaser and upset price (sale consideration). In that event, the Respondents 1 & 2 has suffered substantial injury by reason of irregularity and fraud.
21.5. No documents/independent witness regarding Auction Sale:
a) It is pertinent to note that one Mr.Prabhakaran, Representative of M/s.Katariya & Co., had conducted the alleged auction Sale on 14.08.2003 whereas, he was not examined.
43/76
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
b) Another Representative of Katariya & Co., (D.W-2) had deposed that this alleged sale was the first auction sale conducted for private person. In addition to that, he had admitted that no documents were filed to indicate that service of proper notice and tom tom were produced before the Trial Court. Deposition of D.W-2 (Pg No.133 of consolidated typed set) “...Vyk; elj;Jtjw;F Kd;g[ vd;d vd;d eltof;ifis Kiwg;gLj;j ntz;Lk; gw;wp vdf;F bjupa[k;/ Vyk; mlkhdk; itj;jtUf;Fk; mlkhdk; bgw;wtUf;Fk; nehl;O!; mDg;g ntz;Lk; gpwF Vyk; epu;zak; bra;J me;j nehl;O!;a[k;
mtu;fSf;F mDg;g[nthk;/ ngg;gupy; tpsk;guk; bra;nthk;/ Vyk; tpLtjw;F XupU ehl;fSf;F Kd;g[ Vyk; eilbgWk; brhj;jpw;F brd;Wk; lhk; lhk; moj;J tpsk;guk; bra;nthk;/ nehl;O!;
moj;Jk; me;jg; gFjpapy; xl;Lnthk;/ mJ bjhlu;ghf
Mtz';fs; vJt[k; jhf;fy; bra;atpy;iy/ mJ gw;wp
tptuj;ijbay;yhk; tHf;Fiuapnyh gpukhz thf;FK:yj;jpnyh Fwpg;gpl;L brhy;ytpy;iy/ vd;Dila CHpau; gpughfud; Vyj;ij elj;jpdhu;/ 14/08/2003 Vyk; ele;j ,lj;jpw;F ehd; nghftpy;iy/ mjdhy; m';F vd;d ele;jJ vd;W neuoahf bjupahJ CHpau;fs; brhy;ypj;jhd; bjupa[k/; ///”
c) The paramount objective is to provide sufficient time an opportunity to the Mortgagor/Respondents 1&2 to take all efforts to safeguard their title either by tendering the dues to the creditor before the date and time of the auction sale or to ensure that the mortgaged property derives maximum price. Hence, it is vital for the Auctioneer to ensure that the Respondents 1&2 were 44/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 clearly put on notice of the date and time of the sale which the same has not been complied by the Auctioneer herein.
Deposition of D.W-3 (Pg 157 of Consolidated Typed set) “...vdf;F mg;nghJ tz;zhug;ngl;il g";rhg; ne&dy; t';fpapy; fzf;F ,Ue;jJ/ fzf;F vz; "hgfkpy;iy/ fzf;F g[j;jfj;ij jhf;fy; bra;fpnwhk;/ jw;nghJk; me;j t';fp fzf;F cs;sJ/ mij jtpu ntW ve;j t';fpapYk; vdf;F fzf;F ,y;iy///” Deposition of D.W-3 (Page 159 of Consolidated typed set) “...brhj;J tup fhnrhiy K:ykhf brYj;j ntz;Lk; vd;W vdf;F bjupa[k;/ gp/rh/M/27 brhj;Jtup nfhlk;ghf;fk; rpz;onfl; t';fp fhnrhiyapy; brYj;jg;gl;ljhf gp/rh/M 27 y; cs;sJ/ gp/rh/M 37y; brd;l;uy; ng';f; Mg; ,e;jpah fhnrhiy K:yk; nghJ tPlL ; tup vt;tst[ vd;W "hgfkpy;iy/ jw;nghija tupa[k; :"hgfkpy;iy////” 21.6. Conduct of Appellant in initiating R.C.O.P. proceeding after auction Sale:
a) It is pertinent to note that after Sale Deed dated 29.09.2003 executed in favour of the Appellant, she failed to intimate the same to the Respondents 1 & 2 whereas, with an oblique motive, she had chosen to file a petition vide R.C.O.P. No.2320 of 2003 against the Respondents 1 & 2 and other tenants seeking eviction on the file of the learned XVI Judge, Court of Small Causes, Chennai. After full-fledged enquiry, the said R.C.O.P. was 45/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 dismissed on 16.12.2004. The order of the said R.C.O.P. is marked as Ex.A-10 in which the operative portion states as follows:
Ex.A-10 (Pg.No.256 & 259 of Consolidated Typed set):
"..there is no documentary evidence to prove the landlord - tenant relationship also...
...But in this case, there is no landlord tenant relationship at all. From the beginning the petitioner himself admits that the respondents have not paid any rent from the date of Purchase of the petition premises. There is no attornment of tenancy also. Since the Petitioner failed to prove there is landlord tenant relationship, this R.C.O.P. is not maintainable. Eventhough the petitioner claims that she is having valid title of the petition premises, but the respondents are only unauthorized occupants. The Petitioner moreover only to file civil suit for ejectment. Hence the issue is decided as against the petitioner."
b) This exhibits the conduct of the Appellant acting in collusion with the Mortgagee in purchasing the suit property through surreptitious alleged auction sale and thereby becoming a money lender to the said Mortgagee and is interested in evicting the Respondents 1 & 2 with oblique motive. After full-
fledged trial, this R.C.O.P. was dismissed and hence, the Appellant had filed the present suit for possession and damages with an ill-motive to evict the Respondents 1&2 and grab the entire property.
22. In these circumstances, this appeal has no merit and is to be dismissed. The judgment of the learned trial Judge in O.S.No.7456 of 2010 and O.S.No.8681 of 2010 dated 29.10.2011 are to be confirmed. 46/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
23. In view of the arguments put forth by the Respondent in detail, both the appeals are liable to be dismissed in limine. Point for determination – A.S.No.343 of 2012 Whether the judgment of the learned Additional District Judge, Fast Track Court-I, City Civil Court, Chennai, in O.S.No.7456 of 2010 dated 29.10.2011 is perverse warranting interference by this Court exercising the power of Appeal under Section 96 and Order 41 of C.P.C?
Point for determination – A.S.No.344 of 2012 Whether the judgment of the learned Additional District Judge, Fast Track Court-1, City Civil Court, Chennai in O.S.No.8681 of 2010 dated 29.10.2011 is perverse warranting interference by this Court exercising the power of Appeal under section 96 and Order 41 of C.P.C?
24. Heard the learned Counsel for the Appellant Mr. C. P. Hemakumar for M/s. Ganesh and Ganesh and the learned Counsel for the Respondents 5 to 7 Mr. D. Manimaran in both the Appeals.
25. The parties in these Appeals will be referred as Plaintiff and Defendants as per their litigative status in O.S.No.8681 of 2010 pending before the learned Additional District Judge, Fast Track Court-I, City Civil 47/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Court, Chennai.
26. Perused the evidence of the 2nd Plaintiff as P.W-1 in O.S.No.8681 of 2010 and the evidence of the Defendant-1 in O.S.No.8681 of 2010 as D.W- 1 and D.W-2/Lalith Kumar Jain and the evidence of the Plaintiff in O.S.No.7456 of 2010 as D.W-3 in O.S.No.8681 of 2010. Perused the documents marked on the side of the Plaintiff in O.S.No.8681 of 2010 under Ex.A-1 to Ex.A-17 and the documents under Ex.B-1 to Ex.B-38.
27. On perusal of records, it is found that the second Plaintiff in O.S.No.8681 of 2010 P.Albert was examined as P.W-1. No other witness was examined on the side of the Plaintiff. The documents relied on by the Plaintiff in O.S.No.8681 of 2010 were marked as Ex.A-1 to Ex.A-17. The first Defendant in O.S.No.8681 of 2010 Thiru.M.Radhakrishnan was examined as D.W-1. Thiru.P.Lalith Kumar Jain, the Office of M/s.Katariya & Co. was examined as D.W-2. The third Defendant Mrs.V.Sobia Lawrence was examined as D.W-3. The documents relied by the Defendants 1 to 3 were marked as Ex.B-1 to Ex.B-38.
28. The second Plaintiff in O.S.No.8681 of 2010 P.Albert had 48/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 examined himself as P.W-1 for both the suits. Joint evidence was taken covering the pleadings of the Plaintiff in O.S.No.8681 of 2010 and the Defendants in O.S.No.7456 of 2010.
29. O.S.No.7456 of 2010 was filed by the Defendant-3 in O.S.No.8681 of 2010 as Plaintiff for recovery of possession of the suit property and for damages for Rs.2,00,000/- and for Rs.2,00,000/- towards mesne profits and also directing the Plaintiff in O.S.No.8681 of 2010 to pay future mesne profits at Rs.20,000/- per month and for cost.
30. The suit in O.S.No.8681 of 2010 is filed by the Plaintiff 1 and 2 who are the Defendants 1 and 2 in O.S.No.7456 of 2010. The suit in O.S.No.8681 of 2010 is filed by the Plaintiffs 1 and 2 to declare the sale deed dated 29.09.2003 as null and void and for consequential permanent injunction restraining the Defendants 1 to 3 from interfering with the peaceful possession of the suit property and for cost.
31. It is pertinent to note that prior to the institution of these suits, the Respondents 1 and 2 had filed a suit in O.S.No.1828 of 2001 for permanent injunction restraining the said mortgagee Radhakrishnan from bringing the suit 49/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 property to sale by public auction on 29.06.2002 on the file of learned VIII Assistant Judge, City Civil Court, Chennai. In lieu of the same, an order in I.A.No.9463 of 2002, dated 27.06.2002, was passed which reads as follows:
“The Petitioners are hereby directed to pay a sum of Rs.50,000/- on or before 29.06.2002 to the Counsel for the 1st Respondent and again another sum of Rs.50,000/- on or before 08.07.2002. Further, the Petitioners are hereby directed to pay the interest payable on the balance amount regularly to the Counsel for the Respondent without fail till the disposal of the suit. If the interest amount is not paid on or before 10th of every month, it is open for the 1st Respondent to take appropriate action to bring the suit property for auction”.
32. This Order dated 27.06.2002 is vague in nature as it failed to ascertain the actual mortgage amount as well as the actual due on the date of this suit proceeding. No document for claiming appropriate due amount was filed by the said Mortgagee viz., Radhakrishnan in the said suit. Further, the Respondent’s sought extension of time for complying the order dated 27.06.2002 and also paid a sum of Rs.1,00,000/- which was admitted by the said Radhakrishnan in his deposition as D.W-1 in O.S.No.8681 of 2010 which reads as under:
“…29.06.2002 y; U: 50 MapuKk; 8/7/2002 y; U: 50 MapuKk; brYj;j ntz;Lbkd th/rh/M 4 cj;jutpy; cs;sJ/ mjpy;
thjpfs; fhyePog;g[ nfhup kD jhf;fy; bra;j gpd;dplL ; U:/1 yl;rk; bkhj;jgzk; bgw;Wf; bfhz;nld;/ ePjpkd;wk; epge;jid cj;jut[ gpd;gw;wpajhf Fwpg;gpy; vGjpa[s;sJ vd;why; mJ gw;wp 50/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 vdf;F bjupahJ/ me;j tHf;fpy; vd;dhy; bgwg;gl;l bjhif kw;Wk; ghf;fpa[s;s epYit bjhif gw;wp fzf;F efy; jhf;fy; bra;njhk;/
33. In support of his contention, the Plaintiff had marked documents Ex.A-1 to Ex.A-17. The 2nd Plaintiff as P.W-1 was cross examined. In his cross examination, the contents of the pleadings of the Plaintiff in O.S.No.7456 of 2010 and the contents of the pleadings of the Defendants in O.S.No.8681 of 2010 were put as suggestions. P.W-1 was challenged regarding his claim in the plaint that he had paid Rs.3,50,000/- towards repayment of the mortgage amount. He was confronted regarding his claim in the earlier suit filed by him in O.S.No.1828 of 2001 copy of which was marked as Ex.A-3 and the conditional order passed by the learned VIII Assistant Judge in I.A.No.9463 of 2002 in O.S.No.1828 of 2001 which was marked as Ex.A-4.
(The Plaintiffs in O.S.No.8681 of 2010 who are the Plaintiffs in O.S.No.1828 of 2001) The suit in O.S.No.1828 of 2001 was filed for injunction restraining the 2nd Defendant in the suit in O.S.No.1828 of 2001 Sri Raj and Co. Auctioneer from auctioning the property belonging to the Plaintiff. Therefore, in the interim injunction granted on 27.06.2002, the learned VIII Assistant Judge had ordered as follows “The petitioners are hereby directed to pay a sum of Rs.50,000/- on or before 29.06.2002 to the Counsel for the 1 st 51/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Respondent and again another sum of Rs.50,000/- on or before 08.07.2002. Further the petitioners are also hereby directed to pay the interest payable on the balance amount regularly to the Counsel for the Respondent without fail till the disposal of the suit. If the interest amount is not paid on or before 10th of every month, it is open for the 1st Respondent to take appropriate action to bring the suit property for auction.
34. P.W-1 Albert was confronted regarding the dismissal of the suit in O.S.No.1828 of 2001 for which he answers he had paid Rs. 60,000/-, Rs.30,000/- and R.40,000/- through Indian bank draft and he could not recollect the dates. Also he would submit that in the suit in O.S.No.1828 of 2001, he had paid as per the conditions imposed on him after which the learned Counsel for the Defendant in O.S.No.1828 of 2001 had directed him to come only on intimation from him. Expecting communication from the learned Counsel for the Defendant he had not approached the Defendant. Subsequently he came to know that the suit in O.S.No1828 of 2001 was dismissed, from the notice in R.C.O.P.No.2320 of 2003 filed by the 3rd Defendant in O.S.No.8681 of 2000, Sobia Lawrence.
35. He had admitted that he had not preferred any appeal against the dismissal of the suit in O.S.No.1828 of 2001. The suit in O.S.No.1828 of 2001 was filed through advocate Edwin and there was a communication gap 52/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 between him and advocate Edwin, that is the reason for the dismissal of the suit and for not complying the orders. Due to the request of the learned Counsel for the Defendant, the Plaintiff had not preferred any complaint against the earlier Counsel Edwin. In the evidence in cross examination, he claims that Defendant-1/Radhakrishnan who had lent loan on mortgage of their suit property and who had brought the property for sale through Auctioneers. Based on the mortgage, the sale deed executed in favour of Defendant-3 by Defendant-1 who was the neighbour residing in the same street adjoining the house of the Plaintiff and the Defendant-3 is relative to the Defendant-1 and the Defendant-2 is the Auctioneer. D.W-2 is the Auctioneer, he had stated that he studied only up to 9th standard. He can understand Tamil, he can read English but could not understand English. So, his Counsel had explained things to him and he had instructed the Counsel based on which only the suit in O.S.No. 8681 was filed and written statement in O.S.No.7456 of 210 was filed. He would admit that he does not know the details of Ex.A-
16. Ex.A-16 is the certified copy of the sale deed executed by the Defendant-1 Radhakrishnan regarding the property of the Plaintiff to the Defendant-3 Sobia Lawrence. That is the subject matter of the suit in O.S.No.8681 of 2010 seeking to declare the sale deed dated 29.09.2003 as null and void. It is to be noted that in the earlier suit filed by the Plaintiff in O.S.No. 1828 of 2001, M/s 53/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Sri Raj & Co. was the Auctioneer as per the interim injunction granted by the learned VIII Assistant Judge, M/s. Sri Raj & Co. had been restrained from conducting auction. While so, the Plaintiff, who is the semi-literate and who is not worldly wise, was unable to read the conditional order. Subsequently, the learned Counsel for the Defendant in O.S.No.1828 of 2001 had informed the Plaintiff in O.S.No.1828 of 2001, Albert to come only after getting his instructions. Expecting communication from the learned Counsel for the Defendant, he was waiting and he came to know about the dismissal of the suit only from the notice received in R.C.O.P. No.2320 of 2003. He was taken by surprise which forced him to approach his earlier Counsel and engage the present Counsel, file the suit in O.S.No.8681 of 2010 seeking to declare the sale deed dated 29.09.2003 as null and void and consequential permanent injunction restraining the Defendants from interfering peaceful possession of the suit property.
36. In the course of the trial, the learned Counsel for the Plaintiff in O.S.No.8681 of 2010 had issued notice which was marked as Ex.A-17, calling upon the learned Counsel appearing for the Defendant and directing the Defendant-2, Lalith Kumar Jain proprietor of M/s.Katariya & Co. to produce the documents who had filed affidavit as D.W-2 and marked documents as 54/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Ex.B-6 to Ex.B-9 and furnished the following documents:
a. Bank statement/bank Passbook relating to Account with Central Co-operative Bank (CCB), Chintadripet Branch for the period from 01.04.2003 to 31.12.2004;
b. Receipt Book/Counterfoil pertaining to M/s. Katariya & Co., covering the period 01.01.2003 to 31.12.2004.
c. Income tax return of M/s. Katariya & Co., and in the individual name of Mr.Lalit Kumar Jain if any for the assessment years 2003-2004 and 2004-2-005;
d. All other records pertaining to the alleged auction dated 14.08.2003 including the proceedings recorded thereon as demanded in earlier notice dated 03.03.2005.
failing production of the above said documents at the time of D.W-2 cross examination would entitle my client insist upon the Hon'ble Court to draw adverse inference.
37. The first Defendant Radhakrishan had examined himself as D.W-
1. The contents of the written statement filed by the Defendant-1 in O.S.No.8681 of 2010 was stated as affidavit filed as examination in chief of D.W-1. He was cross examined on behalf of the Plaintiff. In the cross examination, D.W-1 admitted the filing of the suit in O.S.No.1828 of 2001 which is extracted as under:
“vd;Dila tpyhrk; vz;/ 6. td;dpa bjU. 10tJ FWf;F bjUtpd; bjhlh;rr; p. brd;id-24 MFk;/ thjpfs; mnj bjUtpy; fjt[ vz;/7y; FoapUf;fpwhh;fs;/ ehd; 1972ypUe;J m';F FoapUf;fpnwd;/ thjpfs; m';F ve;j tUlj;jpy; te;jhh;fs; vd;W vdf;F bjhpahJ/ jhth brhj;ij mth;fs; vg;nghJ ahhplkpUe;J th';fpdhh;fs; vd;W bjhpahJ/ Foirkhw;W 55/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 thhpaj;jpd; K:yk; fpilj;jjhf Twpdhh;fs;/ fld; bfhLg;gjw;F Kd;ghft[k; thjpfSf;Fk; v';fSf;Fkpilna rpW rpW gpur;rpidfs; tUk; eh';fs; tpl;L bfhLj;J nghnthk; RK:fkhfj;jhd; gHfpndhk;/ mlkhdk; fld; bfhLg;gjw;F 6 khjj;jpw;F Kd;ghf thjpfs; j';fsJ njitfis brhy;yp fld; nfl;lhh;fs;/ 3/12/1998y; mlkhdj;jpd;nghpy; fld; bfhLj;njhk;/ 1998ypUe;J thjpfs; mlkhd fld;fSf;fhf tl;oia brYj;jp te;jhh;fs; vd;why; mJ bgha;/ ehd; tl;oia nfl;lnghJ fc&;;lkhf ,Uf;fpwJ jUfpnwhk; vd;W brhd;dhh;fs;/ 2001y; jhd; jhth brhj;ij Kjd; Kjyhf mlkhd flDf;fhf Vyj;jpw;F bfhz;Lte;njd;/ Vy jhuh; _uh$; md; nfh Mthh;/ thjpfs; nfl;Lf;bfhz;ljd;nghpy; mlkhdj;jpd;nghpy; mjw;F Kd;g[ ehd; eltof;if vLf;ftpy;iy/ brhj;ij Vyj;jpw;F bfhz;L tUtjw;F Kd;ghf Vyjhuh; K:ykhf thjpfSf;F nehl;O!; efiy tHf;fpy; jhf;fy; bra;atpy;iy/ me;j Vyj;ij epWj;jptpl;ljw;fhf thjpfs; mry; tHf;F vz;/ jhf;fy; bra;jhh;fs;/ me;j tHf;fpy; jila[j;jut[ ghpfhuKk;. fld; ghf;fp bjhlh;ghd fzf;fpy; nfl;L mt;tHf;F jhf;fy; bra;ag;gl;lJ/ me;j tHf;F epYitapypUe;jnghJ thjpfs; gy;ntW njjpfspy; U:/2.10.000-- brYj;jpdhh;fs; vd;why; ePjpkd;wj;jpd; K:ykhf U:/2 yl;rk; th';fpndd;/ me;j bjhifia ePjpkd;w cj;jut[ go brYj;jg;gl;lJ/ mjw;F gpdd ; pl;L ,ilfhy kDtpy; U:/50 Mapuk; tPjk; ,uz;L jtizfs; brYj;j ntz;Lk; vd;W cj;juthdJ vd;why; rhpay;y/ 29/06/2002y; U:/50 MapuKk;. 8/7/2002y; U:/50 MapuKk; brYj;j ntz;Lbkd th/rh/M/4 cj;jutpy; cs;sJ/ mjpy; thjpfs; fhy ePlo; g;g[ nfhhp kD jhf;fy; bra;j gpdd; plL; U:/ 1 yl;rk; bkhj;jk; gzk; bgw;W bfhz;nld;/ ePjpkd;wk; epge;jid cj;jut[ gpd;gw;whjhf Fwpg;gpy; vGjpa[ss ; J vd;why; mJ gw;wp vdf;F bjhpahJ/ me;j tHf;fpy; vd;dhy; bgwg;gl;l bjhif kw;Wk; ghf;fpas[ s ; epYit bjhif gw;wp fzf;F efy; jhf;fy; bra;njhk; me;j efiy ,e;j tHf;fpy; jhf;fy; bra;atpy;iy/ mJ gw;wpa tptuj;ij vjpUiuapYk; gpukhd thf;FK:yj;jpYk; brhy;ytpy;iy/ fzf;F gl;oay; me;j tHf;fpy; jhf;fy; bra;Js;sjhf bgha;ahf brhy;Yfpnwd; vd;why; rhpay;y/ fzf;F gl;oay; efy; thjpf;F rhh;g[ bra;J mjid ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy/ gpwF kPzL ; k; jhth brhj;ij Vyj;jpw;F bfhz;L te;njd;/ uh$; md; nfhtpy; Vyj;jpwF ; bfhz;L te;njhk;/ uh$; md; nfh Vyk; tpl kWj;J vGj;J K:ykhf fojk; bfhLf;ftpy;iy/ uh$; md; nfh Vyk; tpl Kaw;rpjj; nghJ thjpfs; jLj;Jtpl;lhh;fs; vd;w tptuj;ij vjpUiuapy; brhy;ytpy;iy/ ePjpkd;w cj;juit mDrhpj;Jjhd; brhj;ij ehd; kPzL ; k; Vyj;jpw;F bfhz;L te;njd;/ 29/07/2002y; njjpapl;l th/rh/M-4 cj;jut[go jhd; ehd; brhj;ij Vyj;jpw;F bfhz;L te;njd;/ $%d; 2003y; brhj;ij Vyk; tpLtJ bjhlh;ghf ehd; Kjd; Kiwahf fl;lhhpah md; nfhit mDfpndd;/ vdf;F rhpahf Vyjhuh; epWtdj;jpy; 56/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 fz;lwptJ fhy jhkjk; Vw;gl;lJ/ fl;lhhpah epWtdj;jhhpk; ehd; ePjpkd;w cj;jut[ mlkhd gj;jpuk; Mfpatw;iw bfhLj;njd;/ njjp "hgfk; ,y;iy/ md;iwa njjpapy; vt;tst[ ghf;fpa[ss ; J vd;gJ bjhlh;ghf fl;lhhpah md; nfhtpw;F fzf;F gl;oay; bfhLj;njd;/ mjid ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy/ mjd; efy; vd; trk; ,y;iy/ mjid fl;lhhpah bgw;Wf;bfhz;ljw;fhf mj;jhl;rpa[k; ,y;iy/ mt;thW Vyj;jpwF ; bfhz;LtUtjw;F Kd;ghf thjpfSf;F tHf;fwp"h; K:yk; nehl;O!; mDg;gpndd;/ me;j nehl;O!; efiynah mJ rhh;ghdjw;fhd m";ry; xg;g[if ml;ilfisnah ,e;j tHf;fpy; jhf;fy; bra;atpy;iy/ me;j Mtz';fis vd;dhy; ePjpkd;wj;jpw;F jhf;fy; bra;a Koa[k;/ mJ gw;wpa tptu';fbsy;yhk; vjpUiuapnyh gpukhz thf;FK:yj;jpnyh brhy;yg;gltpy;iy jw;nghJ tHf;fpwF; ntz;o fzf;F gl;oay; jhf;fy; bra;jjhft[k;. nehl;O!; bfhlj;jjhft[k; bgha;ahf brhy;Yfpnwd; vd;why; rhpay;y/ Fiwe;jgl;r Vy bjhif bjhlh;ghft[k;. ehd; ve;j fojKk; fl;lhhpah md; nfhtpw;F bfhLf;ftpy;iy/ 2k; gpujpthjp thjpfSf;F Vyk; tpLtjw;F Kd;ghf nehl;O!; mDg;gpdhh;fs; njjp bjhpahJ vdf;F efy; tutpy;iy/ 14/08/2003w;F xU thuj;jpwF ; Kd;ghf vd;id nehpy; miHj;J Vyk; elj;j ,Ug;gJ gw;wp brhd;dhh;fs;/ mt;thW jfty; brhd;d njjp vdf;F "hgfkpy;iy/ bjhiyngrp K:yk; jfty; te;jJ/ Fiwe;jgl;r tpiy eph;zak; bra;J 2k; gpujpthjp vd;dplk; xg;g[jy; bgWk; tifapy; ifbaGj;J vJt[k; bgwtpy;iy/ Fiwe;jgl;r tpiy bjhlh;ghf 2k; gpujpthjp vGj;J K:ykhf vdf;F bjhptpf;ftpy;iy/ 2003d; jhth brhj;ij md;iwa re;ij kjpg;g[ vt;tst[ vd;W vdf;F bjhpahJ/”
38. Therefore, it is found that in the earlier suit was dismissed by the clever ploy adopted by the learned Counsel for the Defendant in the suit in O.S.No.1828 by making the Plaintiff in the suit to believe that only on receiving communication, the Plaintiff could contact the Advocate. Expecting communication from him, the Plaintiff was waiting, but he was shocked to receive the notice from the Court in R.C.O.P. No. 2320 of 2003 only then he came to know that the property was sold in the public auction by the Auctioneer, M/s Katariya & Co. That shows the Defendant-1 had played clever 57/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 tricks to usurp the property on the ground that the Mortgagor had committed default, thereby making a made believe public auction. The evidence of D.W-
2 Lalith Kumar Jain in his affidavit states that he had taken steps and he claims that the auction was conducted after the beat of tom tom and the public auction was conducted in the evening on 14.08.2003. He had authorised one Prabhakaran to conduct the auction proceedings on 14.08.2003 in the premises of the suit schedule property by beat of tom tom in the affidavit he had stated that the number of persons participated in the auction proceedings there was only 3 bidders. Defendant-3 Sobia Lawrence is the highest bidder and she was declared as the successful bidder. For payment of the bid amount, he had granted 5 hours time initial payment of Rs.1,56,000/- was paid in 5 hours. Thereafter the balance amount paid. Therefore, he claims that auction conducted by them was legally valid. In his evidence he had marked the following documents viz.. notice given by Defendant-1 on 28.08.2003, the notice given to the Defendant-3 on 23.08.2003, the Bill for auction notice charges which was paid by the 1st Defendant on 15.09.2003 and the letter given by the 1st Defendant to the 2nd Defendant regarding acknowledgement of auction sale.
39. Based on the following 4 documents, Ex.B-6 to Ex.B-9, the 58/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 learned Counsel for the Plaintiff in O.S.No.8681 of 2010 had issued notice under Ex.A-17 directing him to produce documents, but, he had not furnished those documents, as demanded by the learned Counsel for the Plaintiff during trial. In his cross examination, he admits that this is the first auction conducted by him. He claims ignorance regarding transaction between the Defendant-1 and the Plaintiff in O.S.No.8681 of 2010. He claims that Radhakrishnan had handed over the copy of the Court order in I.A.No.9463 of 2002 in O.S.No.1828 of 2001 (Ex.A-4). He had clearly stated that before ever conducting auction, the auctioneer has to send notice to the parties concerned. And as proof of such notice, no document had been marked in the suit in O.S.No.1828 of 2001. Also he had admitted that the details of such transaction were not stated either in his affidavit or in his written statement.
40. He admitted that he had not been in the place of auction. The information regarding conduct of auction was provided by his staff. He does not know the qualification of his own staff Prabhakaran who is claimed to have conducted the auction. To the suggestion in the cross examination by the learned Counsel for the Plaintiff, before ever proceeding with the auction, whether staff had verified the records of the Sub Registrar Office as well as the concern area regarding guideline value and market value of the property and 59/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 whether they had fixed the upset price he was unable to answer. Whether he has perused his records regarding the auction notice alleged to have been issued to the Mortgagor and mortgagee he claims that he has to verify the records. Before ever proceeding with the public auction only seven days time is granted through paper publication. The person who brings the property to sale by public auction alone has to give (a mortgagee) he claims ignorance on the date on which Tom Tom was ordered or Tom tom was carried out in the locality of the suit property. How many persons participated in the public auction whether their details are available in the records of the Defendant-2, he was unable to answer those questions. The suggestion of the learned Counsel for the Plaintiff to the D.W-2 that while conducting the public auction they had not followed clear steps as mandated in the Code of Civil Procedure was denied by him.
41. From the cross examination of D.W-2, it is found that he was not aware of the formalities and procedures regarding conduct of public auction. Whatever is stated by him in the affidavit filed as examination in chief is an empty formality without verifying facts. Therefore, the contention of the learned Counsel for the Plaintiff that public auction was not at all conducted. It was a made believe public auction and using the Defendant-2, the 60/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Defendant-1 had executed a sale deed in favour of the Defendant-3 as though she is the successful bidder is found probable in the facts and circumstances of this case as gathered from his evidence. The Defendant-3 was examined as D.W-3, the Defendant-3 in O.S.No.8681 of 2010, Sobia Lawrence is the Plaintiff in O.S.No.7456 of 2010. She had filed the suit in O.S.No.7456 of 2010 claiming to be the purchaser of the property in public auction and seeking recovery of possession and past and future measne profits from the Defendants in O.S.No.7456 of 2010, who are the Plaintiff in O.S.No.8681 of 2010 claiming damages, mesne profits and etc. The affidavit filed as examination in chief of D.W-3 had covered the pleadings in O.S.No.7456 of 2010 and the pleadings in the written statement of Defendant-3 in O.S.No.8681 of 2010. D.W-3 was cross examined on behalf of the Plaintiff in O.S.No.8681 of 2010.
42. The suggestion on behalf of the Plaintiff that the Office of M/s.Katariya & Co. is opposite to the office of the learned Counsel for the Defendants was admitted by her. She claims ignorance to the suggestion that the advocates of M/s.Katariya & Co. and the advocates of the Defendant belong to the same office. When Defendant-2 as D.W-2 was confronted regarding the resources of the Defendant-3 to purchase the property for 61/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Rs.6,30,000/-, she claims that she was working in private concern Cosmos Enterprises and drawing a salary of Rs.3000/- per month and also she had income from private tuition Rs.2500/- per month. D.W-3 claimed ignorance to the suggestion of the learned Counsel for the Plaintiff that in the evidence before the learned Rent controller, she had filed affidavit claiming that her monthly income was Rs.2500/-. In the cross examination, she has stated that based on the paper publication in Dhina Thanthi news paper, she had gone to the place of auction, believing that there will not be any encumbrance. The claim made by her in the R.C.O.P. that she had not gone to the office of M/s.Katariya & Co. she claims ignorance. She claims that her father and the Defendant-1/Radhakrishnan had been friends for more than 40 years and this property that was brought to public auction was the property adjacent to the residence of Radhakrishnan. She had paid advance of Rs.6000/- on the date of auction and she admits that receipt for the same had not been marked during trial in O.S.No.8681 of 2010. She admits that she does not know the market value of the property before attending the public auction. On the date of the auction she was directed to pay Rs.1,57,500/- as part of the sale consideration for which she went home and obtained the money from her acquaintances and from pledging her jewels and by 7:30 p.m. she came to the office of the Defendant-2 and paid it. D.W-3 had admitted that she had not marked the 62/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 receipt issued by the auctioner to the D.W-3, regarding payment of the advance money paid by her was not marked during the R.C.O.P. proceedings or in the trial in O.S.No.1828 of 2001.
43. To the suggestion of the learned Counsel for the Plaintiff regarding documents marked by her regarding her claim for payment of the entire amount after pledging her jewels, she admitted that no documents were furnished by her. She claimed that she has maintained the account with the Punjab National Bank, Washermenpet Branch, but she had not produced her bank account. She claims that she had paid Rs.2,72,500/- as demand draft to M/s Katariya and Co.
44. Subsequently, she approached the Sub Registrar office where Prabhakaran from Defendant-2 Company M/s.Katariya & Co, Radhakrishnan accompanied her. She denied suggestion that the property was purchsed in her name by the Defendant-1 and she is actually the name lender. The suggestion of the learned Counsel for the Plaintiff that the entire transaction was fraudulent transaction was denied in her cross examination by D.W-3.
45. From the evidence of D.W-1 to D.W-3, it is found that the 63/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Defendant-1 Radhakrishnan admitted that during the pendency of the earlier suit in O.S.No.1828 of of 2001 he had received Rs.2,00,000/-. Subsequently, Rs.1,00,000/- after two installments based on conditional order in I.A.No.9463 of 2002 in O.S. No.1828 of 2001. Therefore, the claim made by the Plaintiff that after payment of the two instalments, the learned Counsel for the Defendant informed that the Plaintiff in O.S.No.1828 of 2001 to come only after getting an intimation from him is found to be a ploy adopted by the Defendants and his Counsel to usurp the property.
46. On perusal of the documents, it is found that Ex.A-1 is the allotment order from the Slum Clearance Board to the first Plaintiff Radha, Wife of the second Plaintiff. It is allotted only in the year 1997. In the year 1998, the mortgage deed had been executed between Plaintiff and the Defendant-1 and based on the mortgage, the auction was conducted. The auction was conducted on 14.08.2003 and based on the so called “Public auction”, the Defendant-1 had executed the sale deed on 29.09.2003 in favour of the Defendant-3.
47. The evidence of D.W-2 Lalit Kumar Jain itself falsifies the case of the Defendants regarding claim of public auction. No document had been 64/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 furnished regarding conduct of public auction as claimed by Defendants 1 to 3 in their respective written statements regarding the steps taken and the number of participants who participated in the so-called public auction. On assessment of evidence by the learned Additional Judge, Fast Track Court, Chennai, had answered the Issue-1 in O.S.No.8681 of 2010 and additional Issues 1 and 2 in O.S.No.7456 in paragraph 14 to 19 in favour of the Plaintiff in O.S.No.8681 of 2010.
48. In Ex.A-7 sale deed dated 29.09.2003 as pointed out by the learned Judge, the sale had been executed for Rs.6,30,000/- value of the building was shown as Rs.20,000/- , the land value was shown as Rs.6,30,000/-. Therefore, the document was undervalued, deficit stamp duty was collected, as per the endorsement on the document under Ex.A-7 the sum of Rs.4,505/- was collected as deficit Registration fees by the Sub Registrar, Kodamabakkam. The land value was fixed at Rs.1,050/- per sq.ft. The suit property measures 904 sq. ft. with building. Therefore, it is presumed that under Ex.A-7, the value of the property will be more than Rs.6,30,000/-. It is to be noted that Choolaimedu is a place near Nungambakkam where the value of the property is high. It is to be noted that the property was given to the landless poor by the slum clearance board. Therefore, there is a specific 65/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 restrictions that for initial period of 10 years it shall not be sold or mortgaged. Ignoring the condition, the Defendant-1 had extended loan and misused the ignorance of the Plaintiff in O.S.No.8681 of 2010 to create a mortgage. Therefore, the claim of the Defendants that the Plaintiff committed default of mortgage and therefore he had exercised his right under section 69 of the Transfer of Property Act is found unacceptable in the light of the conditions imposed by the Tamil Nadu Slum Clearance Board while allotting house sites to landless poor. The claim made by the Defendant-2 as D.W-2 that auction was conducted in the suit property also is found unacceptable. If it had been so, the Authorities under the Slum Clearance Board would have seized the property as per the conditions in the allotment order or the neighbours of the Plaintiff in O.S.No.8681 of 2010 should have objected and taken notice prior to conduct of the auction. The Defendant-2 as D.W-2 claims to have issued notice to the mortgagor and the mortgagee. No document had been furnished or marked during trial of the suit in O.S.No.1828 of 2001. The notice issued by the learned Counsel for the Plaintiff under Ex.A-17 directing to furnish those documents the Defendant-2 as D.W-2 had not conceded to the request under Ex.A-17. Therefore, the Court has to draw adverse inference against the conduct of the Defendant-2 that if they furnish documents the claim made by them will be known to the Court, the Court will reject their contention based 66/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 on such document. That is why they had not produced such documents. The claim made by the Defendant-3 during evidence that she has income Rs.3000/- per month working in a private concern and from tuition Rs.2500/-. Therefore, she had the resources to purchase the property for Rs.6,30,000/- is found unbelievable from the point of view of the normal ordinary prudent man.
49. In all the above circumstances, the claim made by the Plaintiff in O.S.No.8681 of 2010 that suit property was grabbed by the Defendant-1 exploiting the financial condition of the Plaintiff and creating fictious sale deed is found acceptable in the light of the evidence available through D.W-1 to D.W-3 and in the light of the evidence available in the cross examination of D.W-1. In the cross examination, D.W-1 had conceded that the Plaintiff had paid in equal instalments. In the cross examination of Defendant-1 as D.W-1, he admitted that during the pendency of the earlier suit in O.S.No.1828 of 2001 under the condition imposed in I.A.No.9463 of 2002, the Plaintiff had paid two installments of Rs.50,000/- each. Earlier to that, the Plaintiff had paid Rs.2,00,000/-. Therefore, for the mortgage amount he had paid Rs.3,00,000/-. When there is part payment, what is the urgency for execution of the sale and bringing a property to sale by public auction? The Court is unable to accept any circumstances favouring the Defendants 1 to 3. The 67/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Defendant-1 is a neighbour of the Plaintiff. Immediately after the property was allotted to the Plaintiff by the Slum Clearance Board, the Defendant-1 had extended loan and created mortgage within a year which itself is against the provisions of the Slum Clearance Board Rules and against public policy. Apart from that, as per the provisions of Section 60 of the Code of Civil Procedure, a person’s dwelling house shall not be attached. Here the subject matter of both the suits is the house and house site allotted to the first Plaintiff in O.S.No.8681 of 2010 by the Tamil Nadu Slum Clearance Board to the landless poor.
50. Here, it is the claim of the Plaintiff that it is their residential property. The Court can take judicial notice of the acts by the State. Here, the Slum Clearance Board had granted house site to the landless poor within the city limits which property was taken away, grabbed by the Defendant-1. The attempt of the Plaintiff in filing the Interlocutory Application in earlier suit seeking injunction against the auctioneer not to bring the property to public auction was defeated by the clever ploy adopted by the Counsel and the party/Defendant-1. By making the Plaintiff to believe that they will communicate to him regarding balance payment. Instead of communicating to him for balance payment, bringing the property to sale behind his back, there 68/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 is no proof to the claim of the Defendant-2 as D.W-2 that prior to the sale by public auction, notice was given to the mortgagor and mortgagee. Sufficient time was given to the mortgagor to repay the amount, before the conduct of the public auction within seven days from the date of paper publication in Dhina Thanthi dated 07.08.2003. The Defendant-2 as D.W-2 claims ignorance on the suggestion of the learned Counsel for the Plaintiff that the claim of Defendant- 2 regarding the number of participants or any records had been maintained or produced. D.W-2 is unable to give particulars in spite of the notice by the learned Counsel for the Plaintiff under Ex.A-17. Therefore, the Court has to draw adverse inference against the conduct of Defendants 1 to 3.
51. On perusal of the judgment of the learned Additional District Judge, Fast Track Court-1, City Civil Court, Chennai, in the discussion of evidence in paragraph 14 to 19, the reasoning of the learned Additional District Judge is found proper. If the trial Judge on proper appreciation of evidence arrived at a conclusion, even though in the same set of evidence, if the appellate judge arrives at an opposite finding, the finding of the Appellate Court shall not be thrust on the trial Judge. The Appellate Court shall not disturb the finding of the learned trial Judge as per the guideline issued by the Honourable Supreme Court in the reported decisions in Betal Singh -vs- State 69/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 of M.P. reported in (1996) 8 SCC 205 and in V.Sejappa - Vs - State reported in 2016 (12) SCC 150 to the Appellate Courts while re-appreciating evidence based on the materials available before the learned trial Judge. Here on independent assessment of evidence, this Court arrives at a conclusion that what had been stated by the Plaintiff in O.S.No.8681 of 2010 is found probable. The presumption drawn against the Defendants 1 to 3 under section 114 also is in favour of the Plaintiff. There are loopholes in the conduct of the Defendants 1 to 3 regarding the claim made by the Defendants 1 to 3. Before proceeding with the sale by public auction, no notice had been caused on the Plaintiff at the earlier attempt was by a different auctioneer Sri Raj & Co. Therefore, he had approached the Court by filing a suit for injunction. At that stage, the Court had imposed certain conditions in the order in I.A.No.9463 of 2002 by which he had paid the outstanding dues in installments. While so, they informed him that they will contact him later. Instead they made representation to the Court as though he had committed default and thereby the Court had dismissed the suit. Even after dismissal before ever initiating auction under Section 69 of the Transfer Property Act by the mortgagee, the Defendant-1 through the Auctioneer/Defendant-2. They had not issued notice to the Plaintiff. Therefore, the conduct of the Defendants 1 to 3 is found unfair and the conduct of the Defendant-1 and Defendant-3 in executing a sale deed 70/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 as though Defendant-3 is the successful bidder among the so called bidders itself is found fictitious and unacceptable. Therefore, the learned trial Judge had rejected the claim of the Defendants 1 to 3. The claim of D.W-3 that she was under the belief that a property sold in public auction by the auctioneer will be free from encumbrance. Therefore, she approached the Office of the Defendant-2 and then came to the place of the property to participate in the public auction itself is rejected by the learned Additional District Judge on the ground that she had not verified the encumbrances. If she had verified the encumbrances, she could have come to the know that there was a mortgage executed by the Plaintiff in favour of Defendant-1which is a registered mortgage. Therefore, the evidence was rejected by the learned trial Judge.
52. On assessment of evidence, the finding of the learned Additional District Judge, Fast Track Court-1, City Civil Court, Chennai, is found proper. It is a well reasoned Judgment that does not warrant any interference by this Court. Therefore, the Appeal filed by the Defendant-3 against the grant of decree in favour of the Plaintiff in O.S.No.8681 of 2010 has no merit. The Appeal preferred by the Plaintiff in O.S.No.7456 of 2010 against the dismissal of the suit also has no merit.
71/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012
53. In the light of the above discussion from paragraphs 26 to 52, the judgment of the learned Additional District Judge, Fast Track Court-I, City Civil Court, Chennai in O.S.No.7456 of 2010, dated 29.10.2011 is not perverse. It is a well reasoned judgment based on proper appreciation of evidence. The same does not warrant any interference by this Court exercising the power of Appeal under Section 96 r/w. Order XLI and XLI-A of C.P.C and Order IV of the Madras High Court Appellate Side Rules. The Point for determination in A.S.No.343 of 2012 is answered against the Plaintiff in O.S.No.7456 of 2010 and in favour of the Defendants 1 to 4.
54. In the light of the above discussion from paragraphs 26 to 52, the judgment of the learned Additional District Judge, Fast Track Court-I, City Civil Court, Chennai in O.S.No.8681 of 2010, dated 29.10.2011 is not perverse. It is a well reasoned judgment based on proper appreciation of evidence. The same does not warrant any interference by this Court exercising the power of Appeal under Section 96 r/w. Order XLI and XLI-A of C.P.C and Order IV of the Madras High Court Appellate Side Rules. The Point for Determination in A.S.No.344 of 2012 is answered in favour of the Plaintiff in O.S.No.8681 of 2010 and against the Defendants 1 to 3. 72/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 In the result, both the Appeals are dismissed. The judgment and decree dated 29.10.2011 passed in O.S.No.7456 of 2010 and O.S.No.8681 of 2010 by the learned Additional District Judge, Fast Track Court-I, City Civil Court, Chennai is confirmed. No costs. The Miscellaneous Petition Nos.1 to 4 of 2012, M.P.No.1 of 2012 are closed. The Miscellaneous Petition filed by the auctioneer M/s. Katariya & Co. in M.P.No.1 of 2014 seeking to receive document as Additional evidence and mark as Exhibits in the Appeal in A.S.No.344 of 2012 cannot be accepted in the light of the fact that those documents were in the custody of the Defendant- 2 during trial and he had the opportunity to mark those documents during trial. Defendant-2 had withheld such document during trial, inspite of notice under Ex.A-17 by the learned Counsel for the Plaintiff before the trial Court. After having suffered the judgment now, the Defendant-2, seeking permission to let in evidence amounts to filling up the lacunae at the Appeal stage and overturning the judgment on the Appeal stage with the evidence that was not available before the trial Court. The ruling of the Honourable Supreme Court reported in AIR 1956 SC 912 holds good regarding additional document at the stage of Appeal. As per the reported decision the judgment of the Honourable Supreme Court in in Haji Mohammed Ishaq wd. S.K. 73/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 Mohammed and others Vs. Mohamed Iqbal and Mohamed Ali & Co. reported in AIR 1978 SCC 798, the party on whom the onus of proving a certain point lies fails to discharge the onus he is not entitled to fresh opportunity to adduce evidence in Appeal when he had the opportunity to mark documents during trial and had not marked documents inspite of request by the learned Counsel for the Plaintiff under Ex.A-17. As the Court can in such a case pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment in order to enable a party to raise a new point in Appeal. Therefore the petition under M.P.No.1 of 2014 is dismissed.
01.07.2025 Shl Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order 74/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 To
1. The Additional District Judge, Fast Track Court No.I, City Civil Court, Chennai.
2. The Section Officer, V.R Section, High Court of Madras.
75/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm ) A.S.Nos.343 and 344 of 2012 SATHI KUMAR SUKUMARA KURUP, J.
shl Judgment made in A.S.Nos.343 and 344 of 2012 01.07.2025 76/76 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 04:53:42 pm )