Madras High Court
K.P. Seethalakshmi vs Indian Bank, Esplanade Branch, Madras, ... on 31 July, 2002
Equivalent citations: (2002)3MLJ146
ORDER A.S. Venkatachalamoorthy, J.
1. The first respondent herein filed a suit in O.S.80 of 1999 against the petitioner herein as second defendant and respondents 2 to 4 herein as defendants 1, 3 and 4 on the file of Subordinate Court, Srivilliputhur, praying the Court to grant a decree directing defendants 1 and 2 to pay a sum of Rs.6,87,818.30 with interest thereon at the rate of 16.5% per annum with quarterly rest and for a preliminary decree for the said amount with the said interest thereon and in default permitting the plaintiff to apply for final decree and to bring the plaint 'B' schedule immovable mortgaged properties to Court auction sale and credit the sale proceeds towards the decree debt and further permit the plaintiff to bring plaint 'A' schedule movables to Court auction sale by way of charge and credit the sale proceeds towards the decree debt and for other reliefs. The plaint 'B' Scheduled property consist of (a) agricultural land measuring 3.56 acres in S.No.337/1 in Kunnor village, Ramanathapuram District; (b) an extent of 1.56 acres in S.No.945/1; and (c) 1.62 acres in S.No.945/2 in Sundarapandian village, Ramanathapuram District.
2. The case put forward in the plaint is that the first defendant is a Proprietary concern and for business purposes, availed a loan under Open Cash Credit facility and executed a pronote for the amount and it also executed an agreement of hypothecation, hypothecating the movables. Thereafter also first defendant availed some loans and the pronotes were periodically renewed. Suffice to mention that the first defendant borrowed moneys from the plaintiff and that the first defendant and second defendant periodically renewed the pronotes by execution of acknowledgment of debts on various dates. The second defendant stood as a guarantor for and on behalf of the first defendant for due repayment of the loans and executed an agreement of Continuing Guarantee on 11.2.1984 in favour of the plaintiff and she also deposited the title deeds of her properties viz., Plaint 'B' schedule properties already referred supra, with an intention to create an equitable mortgage.
3. Plaintiff initially filed the suit before the High Court of Madras and an application No.6263 of 1996 in the Original side, seeking leave to sue, was also filed. By an order dated 23.12.1996, the said application was ordered (i.e) leave was granted. But before numbering the suit, the Registry returned the papers with the following endorsement, "In view of the constitution of Debt Recovery Tribunal under Section 4 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (Central Act 51/1993), this may be represented before the Tribunal."
This order was passed by the Assistant Registrar No.2 on 7.3.1997. Thereafter, the plaintiff appears to have re-presented the matter before the City Civil Court, obviously because of the reason the suit claim is less than Rs.10 lakhs and the Debt Recovery Tribunal entertains only claims of Rs.10 lakhs and above. On 6.12.1997, the City Civil Court returned the papers directing the plaintiff to present the papers before the Court, which has got territorial jurisdiction. Pursuant to this, plaintiff filed the suit before Sub Court, Srivilliputhur, within whose jurisdiction the properties that are subject matter of the suit i.e, plaint 'B' schedule are situate. The Subordinate Court took the matter on file and numbered the suit as O.S.80 of 1999.
4. The second defendant in the suit filed I.A.119 of 2000 under Section 20 read with 21 of the Code of Civil Procedure in O.S.80 of 1999, praying the Court to dismiss the suit as not maintainable and pass further orders as it deems fit and proper in the circumstances of the case. In the affidavit filed in support of the application the petitioner/second defendant contended that the pleading that she had with an intention to create an equitable mortgage, deposited the title deeds, is a total surmise and that she never expressed any such intention nor did she express the same in writing. It is further stated that she did not submit the title deeds as alleged in the plaint on 11.2.1984 and she had not done anything thereby consenting to create an equitable mortgage on 13.2.1984 or on 17.2.1984. Alternatively it is pleaded even if it is taken that the documents were created for the purpose of creating equitable mortgage, the plaint pleadings had not made out any case for the renewal of the guarantees if at all she has given any guarantee in the past. In the affidavit it is also mentioned that she ordinarily resides in Madras and that the suit in Srivilliputhur is not maintainable.
5. The plaintiff/first respondent filed a counter statement inter alia contending that the creation of equitable mortgage or otherwise is to be decided as a matter of fact by framing an appropriate issue and that too has to be decided in the course of trial. As it is, the trial has to be proceeded with by the Court on the basis of the pleadings made in the plaint. Other contentions raised by the petitioner have also been disputed.
6. The learned Subordinate Judge dismissed the said application holding that the plaint 'B' scheduled properties are situated within the jurisdiction of that Court and that further as to whether the second defendant created mortgage by depositing title deed or not has to be gone into only at the time of trial and dismissed the application.
7. The learned counsel appearing for the petitioner would put forth two fold submissions. Firstly that it is clear that she did not create an equitable mortgage on 13.2.1984 or on 17.2.1984 and it is nothing but total surmise of the plaintiff. Secondly, it is contended that following the ruling in Central bank of India v. Joseph and others, , the Court which has got jurisdiction to try the suit in the facts and circumstances of the case is the original side of the High Court of Judicature and the High Court ought not to have returned the papers, once granted leave to institute the suit.
8. As far as the first submission is concerned it has to be pointed out that in the plaint it has been categorically stated that first defendant and second defendant periodically renewed the pronotes by execution of acknowledgment of debts on 30.6.1986, 9.2.1987, 29.9.1987, to and in favour of the plaintiff and that the second defendant stood as a guarantor for and on behalf of the first defendant for due repayment of the loan and executed an agreement of Continuing Guarantee on 11.2.1984 to and in favour of plaintiff and also created equitable mortgage by depositing title deeds in respect of plaint 'B' schedule properties with the plaintiff on 13.2.1984 and she acknowledged the creation of equitable mortgage over the same on 17.2.1984 to and in favour of plaintiff. As to whether the plaintiff has established the above case or not is a matter to be gone into at the time of trial. Certainly the trial Court will frame necessary issues and consider the same on the basis of oral and documentary evidence that will be available before it. At this stage, this Court has to proceed on the basis of the averments made in the plaint.
9. As far as the second submission is concerned, admittedly 'B' scheduled properties are within the jurisdiction of the Sub Court, Srivilliputhur. The claim of the plaintiff is that the documents of title with reference to these properties were handed over to the plaintiff by the second defendant with an intention to create a security viz., creating equitable mortgage. Initially, the suit was filed in the original side of the High Court, Madras as part of the cause of action viz., handing over of the documents and creating an equitable mortgage took place in the City of Madras and a leave to sue was obtained as contemplated under Clause 12 of the Letters Patent. The Original side of the High Court returned the plaint with a direction to present the same before the Debt Recovery Tribunal. Of course, by virtue of powers vested under Clause 13 of the Letters Patent, the original side of the High Court could have proceeded with the matter notwithstanding the fact of change in the pecuniary jurisdiction if it so desired for the purposes of justice after recording the reasons. The plaintiff filed the papers before the City Civil Court and rightly the Court returned it by saying that the same has to be presented before the Court, which has got jurisdiction over the property viz., 'B' Scheduled properties. In such an event, two courses are open to the plaintiff i.e, (1) to file the plaint in the Sub Court, Srivilliputhur, or (2) to file it before the Original side of High Court praying the Court to invoke Clause 13 of the Letters Patent for the purposes of justice. That being so, plaintiff presenting the plaint before the Sub Court, Srivilliputhur is in order. The fact that initially the plaintiff moved High Court and filed application No.6263 of 1996 seeking leave to institute the suit in the Original side and obtained leave to file a suit would not stand in the way of Sub Court, Srivilliputhur taking the plaint on file and numbering it.
10. The learned counsel for the appellant placing reliance on the ruling (cited supra) would contend that the suit should have been filed before High Court and not before the Sub Court, Srivilliputhur. This Court is not inclined to accept the said submission of the learned counsel for the petitioner. That was a case where a suit of similar nature pending before the original side of the High Court and presumably pursuant to Section 4(1) the Tamil Nadu City Civil Courts and Madras City Civil Courts (Amendment) Act, 1995, was transferred to City Civil Court. But certainly that Court has no jurisdiction since the power available to Original side of High Court under Clause 12 of the Letters Patent is not available to City Civil Courts and the mortgaged properties are situated outside the City Civil Court. In those circumstances, plaintiff in that case filed a transfer application to transfer the suit from the file of City Civil Court, Chennai to the original side of High Court on the ground that Section 4(1) in fact does not authorise transfer of such suits to City Civil Courts. A Division Bench of this Court accepted the contention of the applicant that the properties are situated outside the jurisdiction of the City Civil Court and as such by virtue of Section 16 of Code of Civil Procedure, Civil Court has no territorial jurisdiction to try those suits and the Division Bench directed transfer of those suits to the original side of the High Court. Or in other words, in that ruling Division Bench has not held that the returned plaint cannot be filed in the Court which has got territorial jurisdiction over the mortgaged property and that Court has no jurisdiction to number the plaint and try the suit. The ruling cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of this case.
11. In the result the revision petition is dismissed. No costs.
Considering the fact that in fact the suit was instituted before this Court as early as in 1996, this Court directs the trial court to dispose of the suit on or before 31st October, 2002 and report compliance to this Court. All the parties in the suit shall render fullest co-operation so that the trial will dispose of the suit as per the above direction.