Madras High Court
The vs Unknown on 29 November, 2010
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.11.2010 CORAM THE HONOURABLE Mr. Justice M.VENUGOPAL M.P.No.1 Of 2010 in M.P.No.2 of 2006 in A.S No.825 of 2006 ORDER :
M.VENUGOPAL,J.
The Petitioner/Respondent/First Respondent has filed the present Miscellaneous Petition to vacate the order of injunction granted in M.P.No.2 of 2006 in A.S.No.825 of 2006 dated 12.12.2006.
2.According to the Learned counsel for the Petitioner/Respondent/First Respondent, the Petitioner has filed the suit in O.S.No.12883 of 1996 on the file of the IV Fast Track Court, Chennai for specific performance of the agreement of sale dated 27.08.1990 as against the Petitioner's vendors Rukmani and S.Thirugnanam/Defendants 1 and 2 and that the Defendants 3 to 6 have been the subsequent purchasers of the suit property having full knowledge of the Petitioner's right to buy and the existence of the agreement of sale in favour of the Petitioner and pursuant to the Sale Agreement, the petitioner has been put in possession of the suit property, etc., and that after contest the suit has been decreed in favour of the Petitioner by means of Judgment and Decree dated 28.04.2006.
3.It is the further contention of the Learned counsel for the Petitioner/Respondent/First Respondent that the Respondents 1 to 4 have preferred Appeal against the Judgment and Decree dated 28.04.2006 in O.S.No.12883 of 1996 and has sought for stay of the Decree in M.P.No.1 of 2006 and in M.P.2 of 2006, also for an injunction restraining the Petitioner from collecting the original documents deposited by the vendors of the Petitioner with the State Bank of India, Siruthozhil Branch, Chennai 34 and moreover, in M.P.2 of 2006, on 12.12.2006, this Court has granted interim injunction pending Appeal and ordered notice to the parties.
4.The Learned counsel for the Petitioner/Respondent/First Respondent urges before this Court that the Petitioner's Vendors have created a mortgage with the State Bank of India, Siruthozhil Branch, Chennai 34 on the suit property and during the pendency of suit specific performance, the State Bank of India has instituted a suit O.S.No.9295 of 1996 for recovery of the amounts due to them on the mortgage and that the Petitioner contested the suit wherein a Decree has been passed directing the Petitioner to pay the amount due to the Plaintiff Bank and since the Bank has refused to receive the payment from the Petitioner, the Petitioner has filed I.A.No.138 of 2003 in O.S.No.9295 of 1996 to deposit the sum in the Court and the Respondents 1 to 4 who have been party to the said suit have not contested the suit but have remained Exparte and as per order in I.A.No.138 of 2003, the Petitioner has deposited a total sum of Rs.7,70,000/- to the credit of the suit and therefore, the entire Decree amount has been discharged by the Petitioner.
5.The principle contention advanced by the Learned counsel for the Petitioner/Respondent/First Respondent is that the Petitioner has stepped into the shoes of the Mortgagee by paying the Decree amount and further, by virtue of the interim order granted by this Court, the Petitioner is unable to obtain the return of the original documents in the custody of the Bank even though the Petitioner has paid a huge sum of Rs.7,70,000/- and discharged the total liability due to the Bank as early as on 16.06.2003 and after a lapse of 3 years, the Respondents 1 to 4 on the strength of their sale deed has filed an Application in I.A.No.105 of 2005 in O.S.No.9295 of 1996 and sought permission of the trial Court to pay the amount due under the Decree and prayed for passing of a final Decree in their favour and this Application has been dismissed after contest by means of an order dated 27.08.2008 by the Learned Additional District Judge, (Fast Track Court I), Chennai.
6.It is brought to the notice of this Court by the Learned counsel for the Petitioner/Respondent/First Respondent that the subsequent event viz., the dismissal of I.A.105 of 2005 on 27.08.2008 has to be taken note of by this Court and the Petitioner both in law and on facts is entitled to custody of the documents of title pertaining to the suit property in preference to the Respondents who are only subsequent purchasers and inasmuch as the Respondent's Application I.A.105/05 to pay the dues has been dismissed on 27.08.2008 as against the said order, no further proceedings have been taken either by the Bank or by the Respondents and since the said order has become final, the Petitioner is entitled to get the interim order of injunction granted by this Court in M.P.2 of 2006 to be vacated so as to enable him to collect the documents of title.
7.According to the Learned counsel for the Respondents 1 to 4/Petitioner/Appellant, the Petitioner filed I.A.138 of 2003 in O.S.9295 of 1996 to deposit the amount into Court and as per the orders of Court, the Petitioner has deposited a sum of Rs.7,70,000/- to the credit of the suit and it is incorrect to state that the entire Decree amount has been discharged by the Petitioner and indeed, the Petitioner/First Respondent has not stepped into the shoes of the mortgage by paying the Decree amount, etc.,
8.The Learned counsel for the Respondents 1 to 4 submits that the discharge of the total amount dues to State Bank of India will not entitle the Petitioner to apply for vacating the order of interim injunction for the reason that the interim injunction has been granted by this Court on the basis of undertaking given by the Petitioner/First Respondent's counsel who has discharged the mortgage and the said discharge will not amount to subrogation to the position of the mortgage vis-a-vis the mortgager, etc., and since the Petitioner/First Respondent continues to be an Agreement holder and the Petitioner/First Respondent is not entitled to recover the custody of the original documents of title and further, the Bank is not entitled to retain the original documents of title since they have no need or necessity to do so.
9.The substance of the contention advanced by the Learned counsel for the Respondents 1 to 4 is that so long as A.S.825 of 2006 is pending and also the order of injunction in M.P.2 of 2006 is also pending, the Petitioner/First Respondent is not entitled to vacate the order of injunction and hence, the vacate injunction petition is not maintainable per se in law.
10.Countering the submission of the Learned counsel for the Respondents 1 to 4/Petitioners/Appellants, the Learned counsel for the Petitioner/Respondent/First Respondent submits that the Petitioner/First Respondent by virtue of the order of interim injunction passed by this Court in M.P.2 of 2006 on 12.12.2006, the Petitioner is not in a position to approach the Bank for documents of title in relation to both the schedule of properties and the II Schedule property is not forming the part of the subject matter of the suit and therefore, prays for vacating the order of injunction granted by this Court in M.P.2 of 2006 dated 12.12.2006 in furtherance of substantial cause of justice.
11.On a careful consideration of respective contentions, even though the Petitioner in M.P.1 of 2010 (Vacate Injunction Petitioner) has paid a sum of Rs.7,70,000/- as a liability due to the Bank as early as on 16.06.2003, considering the fact that A.S.No.825 of 2006 filed by the Respondents 1 to 4 as Appellants is pending before this Court as on date and further, inasmuch as this Court has granted interim stay in M.P.1 of 2006 and interim injunction in M.P.No.2 of 2006 pending disposal of the Appeal, bearing in mind an important fact that an Appeal is continuation of proceedings in law and to avoid plurality and multiplicity of proceedings between the parties, this Court on the basis of the facts and circumstances of the case is not inclined to vacate the interim injunction granted by this Court in M.P.2 of 2006 and resultantly, dismisses the petition without costs. As a result thereof, the interim injunction granted by this Court in M.P.2 of 2006 dated 12.12.2006 is made absolute till the disposal of the Appeal.
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