PULEECKAN P.M.SUDHAKARAN Vs. THANKAPPAN

JUDGEMENT

(1.) The suit for money, was decreed by the trial court. RFA 57/2015 is by the first defendant challenging the decree. The second defendant had remained ex parte. The applications filed by him seeking to set aside the ex parte decree on condonation of delay, were dismissed, against which he is in appeal in FAO 61/2016.

(2.) An extent of 37 cents of property belonged to the first defendant. As per Ext.A2 sale deed dtd. 28/9/2000 he conveyed 20 cents therefrom, to the plaintiff. Thereafter, he conveyed 15 cents of property to the second defendant. According to the plaintiff, though there was a subsisting mortgage over the entire property, the assignments were made by the first defendant without disclosing the same. The Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short "the SARFAESI Act") against the mortgaged property. Thereupon the plaintiffs approached this Court in W.P.(C) No.72/2009. Therein the plaintiffs sought permission to wipe off the liability. As per Ext.A13 judgment this Court granted permission to the plaintiff. Accordingly the liability was settled. The remaining two cents of property out of the 37 cents was also purchased by the plaintiffs. The suit is filed for realisation of the amount paid to the redeemed mortgage.

(3.) The first defendant contended that the subsistence of the mortgage was not suppressed by him. It was contended that the payment made by the plaintiffs was on their own volition. The fact that the plaintiffs had settled the liability with the Bank was admitted. The plaint claim was denied.