472 and 488 of Sanganur Village of one Shri M.C. Kallikutty Guarantor.
2587/2013, by which the High Court has dismissed the said revision applications preferred by the appellant herein Canara Bank and has companyfirmed the orders passed by the learned trial Court dismissing the applications preferred by the appellant herein to reject the respective plaints in exercise of powers under Order 7 Rule 11 of the CPC, original defendant number5 Canara Bank in O.S. No.
152/2010 came to be registered on 2.11.2005.
In the suits, the original plaintiffs have prayed inter alia for the following reliefs a declaring that the alleged order dated 27.8.03 passed by the Debt Recovery Tribunal, Coimbatore in T.A. No.
822/2002 as numberest, ultra vires, null and void and number binding on the suit property and also for a companysequential permanent injunction restraining the Recovery Officer from interfering with their peaceful possession and enjoyment of the suit property by taking any action as against the suit property by way of attachment, sale or otherwise.
P.C. for the offences under Sections 120B read with 465, 466, 467, 468, 471, 420 and 419 of the IPC against the partners of the principal borrower and also against one K.V. Roshan Babu, Agricultural Extension Officer of the appellant bank.
That in the aforesaid two suits, the appellantbank was joined as defendant number5 in O.S. No.
However, in the meantime, the said Kallikutty initiated the criminal proceedings against the partners of the partnership firm principal borrower alleging forgery with respect to the partnership deed.
That after a period of 5 years the said Shri Kallikutty filed an interlocutory application before the DRT to set aside the exparte decree dated 27.08.2003, which came to be dismissed by the DRT on 12.06.2009.
That the said Shri C. Kallikutty hereinafter referred to as the Guarantor signed Guarantee Deed dated 28.09.1995 and created equitable mortgage by deposit of Title Deeds of the disputed lands in question.
489 of 2001 before the Debt Recovery Tribunal, Chennai in the month of October, 1997 against the principal borrower, its partners as well as against the Guarantor.
By the impugned companymon judgment and order, the High Court has dismissed the said revision applications and has companyfirmed the orders passed by the learned trial Court rejecting the applications to reject the respective plaints in exercise of powers under Order 7 Rule 11 CPC by observing that the issue of either fraud or impersonation or whether mortgage created by the Guarantor, vendor of the original plaintiffs, in favour of the bank is legal or number is a matter to be adjudicated in the civil suits and in criminal case.
That in the said suits, it is the case on behalf of the original plaintiffs that they have purchased the suit property, which have been mortgaged while taking the term loan, from their vendor vide sale deeds dated 30.01.1996 and 10.03.1997 respectively and as the suit lands purchased by them vide sale deeds dated 30.01.1996 and 10.03.1997 respectively were put to mortgage by fraud by the principal borrower partners of the partnership firm and therefore the decree passed by the DRT shall number bind them.
That thereafter after a period of five years from the date of the order passed by the DRT dated 27.08.2003, the Guarantor filed I.A. No.
822/2002 previously O.A. No.
3.8 Feeling aggrieved and dissatisfied with the impugned companymon judgment and order passed by the High Court in refusing to reject the respective plaints in exercise of powers under Order 7 Rule 11 CPC, the appellantbank original defendant number 5 in O.S. No.
The term loan was further secured by the partners of the partnership firm principal borrower by mortgaging the lands of the firm and also by the Guarantor Shri C. Kallikutty by mortgaging the lands owned by him.
The facts leading to the present appeals in nutshell are as under That the appellant bank sanctioned and granted a term loan of Rs.49,50,000/ to M s Coimbatore Hatcheries, a partnership firm in which one Shri Ravichandran and G. Suresh Babu were the partners, in the year 1995.
At this stage, it is required to be numbered that the said Shri M.C. Kallikutty stood as a Guarantor.
1821 of 2008 in the year 2008 for setting aside the exparte decree dated 27.08.2003 before the DRT, Coimbatore.
3.1 That as the original borrower failed to repay the loan amount due to the appellantbank, the appellantbank filed O.A. No.
822/2002.
3.4 That thereafter after a period of 15 years from the date of mortgage and after seven years from the date of the decree dated 27.08.2003 passed by the DRT, the respondents herein filed O.S. No.
3.7 Feeling aggrieved and dissatisfied with the orders passed by the learned trial Court dismissing the aforesaid applications and refusing to reject the respective plaints under Order 7 Rule 11 d of the CPC, the appellantbank preferred two separate revision applications before the High Court.
1269/2010 and O.S. No.
1269/2010 and original defendant number6 in O.S. No.
141/2003 to the principal borrower, its partners and the Guarantor directing them to pay the sum of Rs.1,55,75,443/ as decreed in T.A. No.
That the Guarantor filed a writ petition before the High Court of Madras denying his guarantee and creation of EMT and sought direction to the Crime BranchCID to register an FIR and investigate into the matter.
That the said loan was secured by mortgage of immovable property belonging to the said firm and the land situated at Survey Nos.
Thus, basically the plaintiffs are challenging the decree passed by the DRT being purchasers.
472 and 488 of Sanganur Village of one Shri M.C. Kallikutty Guarantor is the subject matter of dispute.
233/2011 respectively in the Court of learned Second Additional Subordinate Court, Coimbatore against the Guarantor, principal borrower and its partners and the appellantbank for a declaration to declare the order dated 27.08.2003 passed by the DRT in T.A. No.
489/2001 to proceed exparte against the Guarantor.
R. SHAH, J. Leave granted.
Feeling aggrieved and dissatisfied with the impugned companymon judgment and order dated 09.11.2017 passed by the Signature Not Verified Digitally signed by High Court of Judicature at Madras in C.R.P. PD No.
2586/2013 ARJUN BISHT Date 2020.02.28 145859 IST Reason and C.R.P. PD No.
1269/2010, who is original defendant number6 in O.S. No.233/2011, has preferred the present appeals.
822/2002.
822/2002 is numberest, ultra vires, null and void, and number binding on the suit property and for a companysequential permanent injunction restraining the 6th defendant from interfering with the plaintiff peaceful possession and enjoyment of the suit property by taking any action as against the suit property by way of attachment or sale or otherwise b declaring the alleged mortgage said to have been created by the first defendant was the 5th defendant in respect of the suit property is number est, null and void and binding on the same and for a companysequent permanent injunction restraining the 5 th defendant from interfering with the plaintiffs possession and enjoyment of the suit property by taking any action as against the suit property by way of sale or otherwise.
489/2001 filed by the appellantbank came to be decreed by the DRT for Rs.57,35,770/ with 18 interest per annum in favour of the appellantbank and against the principal borrower as well as Guarantor.
That the judgment and decree came to be passed by the DRT as far back as on 27.08.2003 and even the recovery certificate was issued in favour of the bank on 16.09.2003.
That thereafter after a period of 15 years from the date of mortgage and after seven years from the date of decree passed by the DRT, the original plaintiffs filed the present suits basically challenging the decree passed by the DRT dated 27.08.2003 alleging fraud.
233/2011 has preferred the present appeals.
1269/2010 and defendant number6 in O.S. No.
That on directions of the High Court of Madras, FIR No.
It appears that thereafter the criminal proceedings against the officer of the bank Roshan Babu came to be quashed by the High Court vide judgment and order dated 28.06.2011.
That the land bearing Survey Nos.
