Madras High Court
A.P.Subramanian vs R.Sivasamy on 4 August, 2008
Equivalent citations: 2008 A I H C 3774, (2009) 1 BANKCAS 514, (2008) 4 CTC 499 (MAD), (2008) 70 ALLINDCAS 945 (MAD)
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.08.2008
CORAM:
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
Civil Revision Petition (NPD) No.1759 of 2008
A.P.Subramanian .. Petitioner
Vs.
1. R.Sivasamy
2. The Manager
Canara Bank,
Avinashi, Coimbatore District. .. Respondents
Civil Revision Petition filed against the Order, dated 05.12.2007 in unnumbered I.A.S.R.No.7951 of 2007 in O.S.No.374 of 2006 on the file of the Additional District Court / FTC No.V, Tiruppur.
For petitioners : Mr.Ma.P.Thangavel
O R D E R
Heard the learned counsel appearing for the revision petitioner / plaintiff. No representation, either in person or through counsel for the respondent, though service of notice is sufficient.
2. The Court below, Additional District Court / Fast Track Judge No.V, Tiruppur, has passed an order, dated 10.08.2007, based on the compromise decree in O.S.No.374 of 2006 on the file of the said court. As per the compromise arrived at by the parties to the suit, it is seen that the memo of compromise, dated 10.08.2007 was signed by both the parties and filed before the court below. A compromise petition in I.A.No.995 of 2007 was also filed and the following are the terms of compromise decree passed by the court below, as per the memo of compromise.
"1. that the plaintiff be and the same is hereby directed to pay the entire dues to the second defendant bank within two months from today, as per compromise memo, dated 10.08.2007.
2. that the plaintiff be and the same is hereby directed to hand over the documents except suit property document to the first defendant, as per compromise memo, dated 10.08.2007.
3. that the plaintiff be and the same is hereby directed to pay sum of Rs.4,75,000/- to the first defendant within two months from today, as per compromise memo, dated 10.08.2007.
4. that the first defendant be and the same is hereby directed to execute the same deed in favour of the plaintiff after receiving the above said amount at the expenses of the plaintiff, as per compromise memo, dated 10.08.2007.
5. that the first defendant failing to comply with the Clause No.4 above that the plaintiff be entitled to Execution Proceedings against the first defendant as per compromise memo, dated 10.08.2007.
6. that the both parties do bear their respective costs; and
7. that the compromise petition in I.A.No.995 of 2007 and compromise memo, dated 10.08.2007 shall form part and parcel of this compromise Decree."
3. According to Mr.Ma.P.Thangavel, learned counsel appearing for the revision petitioner, the plaintiff was directed to pay a sum of Rs.4,75,000/- to the first defendant, who is the first respondent herein, within two months from the date of the compromise memo and the first respondent herein, being the first defendant in the suit shall execute sale deed in favour of the plaintiff, in respect of the suit property, after receiving the aforesaid amount and sale deed has to be executed and registered at the expense of the revision petitioner / plaintiff, as per the compromise memo, dated 10.08.2007. Under mortgage, the first respondent herein had to pay a sum of Rs.5,80,000/- to the second defendant Bank. As per the compromise arrived at between the parties, the same was paid by the revision petitioner and he obtained a receipt for the said payment made by him.
4. According to the learned counsel appearing for the revision petitioner, the revision petitioner / plaintiff approached the first respondent / first defendant, but he declined to receive the amount Rs.4,75,000/-, as per the compromise decree arrived at, hence, he issued a legal notice and on the very next day, the first respondent deposited the said amount of Rs.4,75,000/- in the name of his counsel on 11.10.2007 at State Bank of India, Avinashi Branch, in order to show his bonafide, for which he has produced xerox copy of the chalan as a supporting document. He has also filed Lodgment Schedule before the court below for deposing the amount. However, the same was returned with an endorsement that the amount sought to be deposited beyond the period covered under the compromise decree and the court below returned the Lodgment Schedule on the ground that the court became functus officio and not empowered to order for the deposit of the amount.
5. As contended by the learned counsel appearing for the revision petitioner / plaintiff, under Section 148 of the Code of Civil Procedure, 1908, extension of time for payment of cost beyond the prescribed maximum period can be permitted by court, if the act was not performed within the specified period, for reasons beyond the control of party. In such circumstances, the court does not become functus officio and it has power to extend time for making such a payment. This Court has also decided the same in the decision in Pichammal vs. Annamalai reported in 2008 (1) CTC 47.
6. In the instant case, as per the compromise decree, the revision petitioner / plaintiff has to pay a sum of Rs.4,75,000/- to the first respondent / first defendant within two months from the date of the compromise decree, dated 10.08.2007. Accordingly, the last date fixed is 10.10.2007 for payment of the aforesaid amount and the first respondent, after receiving the consideration shall execute the sale deed in favour of the revision petitioner / plaintiff. It is seen that the revision petitioner has discharged the mortgage debts by making payment of Rs.5,80,000/- to the second respondent Bank, for which he has produced xerox copy of the receipt obtained from the second respondent Bank. Further, to establish his bonafide, he issued a legal notice, dated 10.10.2007 to the first respondent herein, since the first respondent did not receive the amount of Rs.4,75,000/-, for which there was no reply from the respondent herein. In order to prove his bonafide, the petitioner has deposited the amount in the State Bank of India, Avinashi Branch in the name of his counsel. In such circumstances, the court below could have held that the petitioner has established the bonafide reason and permitted the petitioner herein to deposit the amount under Lodgment Schedule. It could be presumed from the available materials that the first respondent had deliberately evaded to receive the amount, as per the compromise decree for the reasons best known to him.
7. Even in this Civil Revision Petition, after service of notice, there is no representation for the first respondent herein either in person or through counsel and therefore, to meet the ends of justice, I find it reasonable to allow this Civil Revision Petition, directing the court below to permit the revision petitioner herein to deposit the amount Rs.4,75,000/-, by way of Lodgment Schedule, within two weeks from the date of receipt of a copy of this order, failing which the petitioner will lose his right available under the compromise decree. Accordingly, this Civil Revision Petition is allowed. No order as to costs.
8. The Registry is directed to return the original Lodgment Schedule to the revision petitioner, so as to produce it before the trial court.
tsvn To The Additional District Court / FTC No.V, Tiruppur