C.R.P.(MD)No.2302 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 22.03.2024
PRONOUNCED ON: 30.04.2024
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD)No.2302 of 2019
and
C.M.P.(MD)No.12095 of 2019
1.G.Rajan
2.R.Shanmuga Lakshmi : Petitioners/Petitioners/Proposed
Respondents 2 & 3/Proposed Defendants
2 & 3
Vs.
1.Mariappan : 1st Respondent/1st Respondent/
Petitioner/Plaintiff
2.R.Kasi Mariappan : 2nd Respondent/2nd Respondent/
Respondent/Defendant
PRAYER:- Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decreetal order passed in
I.A.No.253 of 2017 in I.A.No.229 of 2017 in O.S.No.71 of 2017, dated
30.10.2019, on the file of the Sub Court, Kovilpatti.
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C.R.P.(MD)No.2302 of 2019
For Petitioner : Mr.H.Arumugam
For Respondents : Mr.D.Srinivasa Raghavan
for R.1
: R.2 – Dispensed with
-Memo filed
ORDER
The Civil Revision Petition is directed against the order passed in
I.A.No.253 of 2017 in I.A.No.229 of 2017 in O.S.No.71 of 2017, dated
30.10.2019, on the file of the Subordinate Court, Kovilpatti, dismissing
the petition filed under Order 1 Rule 10(2) C.P.C.
2. The revision petitioners are the third parties / proposed
respondents. The first respondent, as plaintiff has filed the suit in
O.S.No.71 of 2017 against the second respondent before the Subordinate
Court, Kovilpatti for recovery of Rs.4,00,633/- due on a promissory note
dated 13.04.2016 alleged to have been executed by the second
respondent / defendant to the first respondent/plaintiff. The first
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C.R.P.(MD)No.2302 of 2019
respondent/plaintiff has also filed an application in I.A.NO.229 of 2017
under Order 38 Rule 5 C.P.C., seeking attachment of the property before
the judgment. Pending the above petition for attachment before
judgment, the revision petitioners who are the third parties to the above
proceedings have filed the above application under Order 1 Rule 10(2)
C.P.C., seeking orders to implead them as respondents 2 and 3 in I.A.No.
229 of 2017 in O.S.No.71 of 2017. The first respondent/plaintiff has
filed a counter statement raising objections. The second
respondent/defendant has remained exparte. During enquiry, the revision
petitioners/third parties have produced and exhibited 11 documents as
Exs.P.1 to P.11. The first respondent has not adduced any documentary
evidence. The learned trial Judge, after enquiry, has passed the
impugned order dated 30.10.2019 dismissing the impleadment petition.
Aggrieved by the order of dismissal, the third parties have preferred the
present revision.
3. The case of the revision petitioners / third parties in the affidavit
filed in support of the impleadment petition is that the suit property was
belonging to the defendant, that the defendant has offered to sell the
property and the proposed parties have agreed to purchase the same, that
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C.R.P.(MD)No.2302 of 2019
they have entered into a sale agreement on 12.04.2017 fixing the sale
price at Rs.25,00,000/-, that the proposed parties have paid Rs.
10,00,000/- on the date of sale agreement itself and agreed to pay the
balance amount of Rs.15,00,000/- on or before 30.04.2017, that the
proposed parties have proposed to obtain a loan from Tamil Nadu
Mercantile Bank, Kovilpatti and also agreed to settle the loan amount
due by the defendant with Repco Bank, Thoothukudi, that in pursuance
of their agreement, the proposed parties have obtained loan of Rs.
15,00,000/- on 21.04.2017 from Tamil Nadu Mercantile Bank, Kovilpatti
and paid the same into Repco Bank, Thoothukudi and got back the
original documents submitted by the defendant with Repco Bank and
handed over the same to their creditors – Tamil Nadu Mercantile Bank,
that since there were some problems for registering the unapproved sites,
they were not in a position to register the sale deed immediately and the
defendant has executed a document dated 07.06.2017 admitting the
receipt of the sale price and to execute the sale deed and also hand over
the possession of the property, that the defendant after 21.04.2017 has no
right, title or interest in the property, that since the proposed parties were
ready and willing to take the sale deed, the defendant with ulterior
motive has been postponing the same on some pretext or the other, that
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the proposed parties and the Tamil Nadu Mercantile Bank have submitted
an objection petitiion before the Sub Registrar Office, Kovilpatti and also
lodged a complaint with the Deputy Superintendent of Police, Kovilpatti,
that the proposed parties have then filed a suit for specific performance
in O.S.No.56 of 2017 and the same was pending, that the plaintiff by
alleging that the defendant has borrowed some amount, has filed the
above suit and also filed an application to attach the property before the
judgment, that if the property is attached, then the proposed parties and
the Tamil Nadu Mercantile Bank will suffer irreparable loss and hardship
and that therefore, it has become just and necessary for the proposed
parties to get themselves impleaded in the petition for attachment before
judgment.
4. The defence of the first respondent / plaintiff is that the
proposed parties in collusion with the defendant has filed the above
petition to cheat the plaintiff, that the contention of the proposed parties
that they have entered into a sale agreement dated 12.04.2017 is not true
and the same was created for the purpose of the petition, that the sale
agreement alleged by the proposed parties is not legally valid, that the
proposed parties who are not the parties to the above proceedings are not
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C.R.P.(MD)No.2302 of 2019
entitled to file the above petition, that the sale agreement will not confer
any title over the property, that the impleading petition itself is not
legally maintainable and that therefore, the petition is liable to be
dismissed.
5. It is pertinent to note that the proposed parties by alleging that
they have entered into a sale agreement with the defendant on
12.04.2017, have filed a suit for specific performance in O.S.No.56 of
2017 against the second respondent/defendant and the Tamil Nadu
Mercantile Bank, Kovilpatti and that the Principal District Judge,
Thoothukudi has passed a judgment and decree dated 03.12.2018
granting the relief of specific performance of the agreement directing the
defendant to execute and register a sale deed and also granted permanent
injunction restraining the defendant from making any encumbrance or
sale to the third parties in contravention of the sale agreement dated
12.04.2017.
6. The learned Counsel for the revision petitioners would submit
that subsequent to the filing of the revision, the Principal District Judge,
Thoothukudi has executed a sale deed in favour of the revision
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C.R.P.(MD)No.2302 of 2019
petitioners on behalf of the second respondent / defendant dated
23.09.2020 and the same came to be registered on the file of the Sub
Registrar Office, Kovilpatti. The learned Counsel for the revision
petitioners has also produced a copy of the sale deed dated 23.09.2020.
The learned Counsel for the revision petitioners would submit that the
proposed parties have paid Rs.10,00,000/- on the date of sale agreement
itself and subsequently they have paid the remaining sale price of
Rs.15,00,000/- by taking a loan from the Tamil Nadu Mercantile Bank
and paid that amount to Repco Bank, Thoothukudi towards settlement of
the loan amount due by the second respondent/defendant.
7. The learned Counsel would further submit that since there were
some problems for registering the unapproved sites, they were not in a
position to get the sale deed registered, but the defendant, after executing
necessary documents admitting the receipt of sale price and agreeing to
execute the sale deed, has also handed over the possession of the
property to the proposed parties and that therefore, they have become the
owners of the property. The learned Counsel would further submit that
since the defendant has not executed the sale deed, the proposed parties
were constrained to file the suit for specific performance and the suit was
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C.R.P.(MD)No.2302 of 2019
decreed vide judgment and decree dated 03.12.2018 and that the
Principal District Judge, Thoothukudi has executed a sale deed dated
03.12.2018 in favour of the proposed parties on behalf of the second
respondent/defendant and that therefore, the proposed parties have
become the absolute owners of the property and are in possession and
enjoyment of the same and that therefore, the respondent/plaintiff cannot
proceed with the attachment petition as the defendant is not the owner of
the property.
8. As rightly contended by the learned Counsel for the revision
petitioners, they have not sought for their impleadment in the main suit,
which was filed for recovery of money due on the promissory note, but
they have only sought for their impleadment in the petition for
attachment of the property in dispute before judgment and that in case if
the properties are ordered to be attached, then the proposed parties as
well as their creditors – Tamil Nadu Mercantile Bank will suffer loss and
hardship. Admittedly, the second respondent / defendant has remained
exparte in the petition in I.A.No.229 of 2017 filed under Order 38 Rule 5
C.P.C., and also in the present application in I.A.No.253 of 2017 filed
under Order 1 Rule 10(2) C.P.C.
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9. No doubt, as rightly contended by the learned Counsel for the
first respondent / plaintiff, the sale agreement will not confer any title
over the property. It is settled law that an agreement to sell does not
confer title or transfer the ownership to the intended purchaser and that
an agreement to sell is not a conveyance, but at the same time, what the
agreement for sell created is a right for the purchaser to purchase a
property in question on satisfaction of certain conditions. But as rightly
contended by the learned Counsel for the revision petitioners, in the case
on hand, even on the date of sale agreement itself, the proposed parties
have paid a substantial payment of Rs.10,00,000/- out of Rs.25,00,000/-
fixed as the sale price. More importantly, the proposed parties have also
paid the balance sale price of Rs.15,00,000/- to Repco Bank,
Thoothukudi to clear the loan due by the defendant.
10. It is the specific contention of the revision petitioners that after
paying the entire sale price, the original title deeds which were with the
Repco Bank were received and the same were handed over to the
proposed parties' creditors – Tamil Nadu Mercantile Bank and more
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importantly, they have taken possession of the property in dispute from
the defendant. Even assuming for arguments sake, even after the above
aspects, the sale agreement does not confer any right or title over the
property, as already pointed out, the proposed parties have obtained a
decree for specific performance and thereafter while executing the
decree, has taken a sale deed from the Court itself and the same came to
be registered.
11. Considering the above, as rightly contended by the learned
Counsel for the revision petitioners, the proposed parties cannot be
considered as strangers, but their presence is very much necessary while
deciding the application for attachment before the judgment. But the
learned Subordinate Judge, without considering the above aspects in
proper perspective by simply observing that whether the sale agreement
entered into between the proposed parties and the defendant is legally
valid, whether the proposed parties are having any rights in the property
can only be decided after the disposal of the suit in O.S.No.56 of 2017
and that the proposed parties cannot be stated to have any rights in the
property, their impleadment is not necessary, dismissed the petition.
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12. As rightly pointed out by the learned Counsel for the revision
petitioners, the revision petitioners in the enquiry before the trial Court,
have specifically produced and exhibited the judgment and decree passed
in O.S.No.56 of 2017, on the file of the Principal District Court,
Thoothukudi, whereunder the third parties were granted the decree for
specific performance and the learned trial Judge even without looking
into the same, had made the above observations that the rights of the
proposed parties can be decided only after the disposal of the suit in
O.S.No.56 of 2017. Considering the above, the impugned order
dismissing the impleadment petition cannot be sustained and as such, the
same is liable to be set aside.
13. In the result, the Civil Revision Petition is allowed and the
impugned order, dated 30.10.2019, passed in I.A.No.253 of 2017 in
I.A.No.229 of 2017 in O.S.No.71 of 2017, on the file of the Sub Court,
Kovilpatti is set aside and the petition in I.A.No.253 of 2017 stands
allowed. The learned Subordinate Judge, Kovilpatti is directed to
conduct enquiry in I.A.No.229 of 2017 and dispose of the same within a
period of one month from the date of receipt of a copy of this order.
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C.R.P.(MD)No.2302 of 2019
Consequently, the connected Miscellaneous Petition is closed. There
shall be no order as to costs.
30.04.2024
NCC : Yes : No
Index : Yes : No
Internet : Yes : No
SSL
To
1. The Subordinate Court, Kovilpatti.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.2302 of 2019
K.MURALI SHANKAR,J.
SSL
PRE-DELIVERY JUDGMENT MADE IN
C.R.P.(MD)No.2302 of 2019
30.04.2024
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