M ANDIAPPA CHETTIAR Vs. R MOHANDOSS

JUDGEMENT

(1.) This petition has been filed with a prayer to withdraw the M.L.O.P. No. 111/2009 pending on the file of the Subordinate Judge, Pudukkottai and transfer the same to the file of the District Judge, Pudukkottai to be tried along with O.S. No. 114 of 2004 pending on the file of the District Judge, Pudukkottai.

(2.) The averments made in the affidavit filed in support of this petition are as follows:

(3.) The Respondent filed a counter affidavit refuting the allegations made by the Petitioners. It is averred therein that his father and mother had jointly availed the loan of Rs. 50,000/-by way of a cheque drawn on Indian Overseas Bank from the deceased Adaikammai @ A. Vedambal Achi and the fifth Petitioner herein on 09.01.1992. But whereas on the contrary, the deceased Adaikammai @ A. Vedambal Achi and the fifth Petitioner herein had forcibly insisted them to execute the registered mortgage deed for an excess amount of Rs. 60,000/-on 09.01.1992. It is also alleged that the Petitioners are not in the habit of issuing receipts whenever the interest amount was tendered by the father of the Respondent. As the Petitioners failed to issue receipts, his father asked for the full settlement at once. While so, the Petitioners herein demanded huge amount with an exorbitant interest in violation of the Tamil Nadu Money Lenders Act, 1957 and also Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 (Tamil Nadu Act 38 of 2003). The father of the Respondent approached the Petitioners with some mediators to levy simple interest instead of compound interest. But the Petitioners declined to act upon and insisted interest to be added once in three months and thereafter to charge interest thereon. Thereafter, they issued a legal notice claiming an exorbitant interest for the principal amount. On receipt of notice, the father of the Respondent approached the Petitioners herein for amicable settlement. But the Petitioners refused for amicable settlement. In the meanwhile, the Petitioners herein filed a suit in O.S. No. 114 of 2004 before the District Judge, Pudukkottai against the father and mother of the Respondent claiming exorbitant interest of Rs. 8,74,767/-for the principal amount of Rs. 60,000/-only as per the calculation sheet attached with the plaint. According to the Respondent, it amounts to "Kandu Vatti" as per the Act 2003. Having received the suit summons, the father of the Respondent died due to Heart Attack. The death was due to the shock and mental agony. Thereafter, the Respondent lodged a complaint on 28.01.2008 before the District Collector, Pudukkottai against the Petitioners herein for the claim of an exorbitant interest against the violation of the Tamil Nadu Money Lenders Act 1957 and also Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 and the District Collector, Pudukkottai was pleased to refer his representation to the Superintendent of Police, Pudukkottai and pursuant to the same, FIR was also registered in Crime No. 34/2008, under Sections 3 and 4 of the Act 2003 against the Petitioners herein in Thirumayam Police Station, Pudukkottai District. According to the Respondent, the interest legally chargeable is 9% only for the secured loan as per the Tamil Nadu Money Lenders Act, 1957 and the claim of Rs. 8,74,767/-is an exorbitant interest under Act 38 of 2003. Hence, the Respondent filed a petition in M.L.O.P. No. 111 of 2009 under Section 5(1) of the Act 38 of 2003 before the Subordinate Judge, Pudukkottai, against the Petitioners herein, praying for an order to deposit an amount of Rs. 1,54,290/-in full satisfaction of the loan amount and interest thereon. It is also stated that the said amount was deposited before the Subordinate Judge, Pudukkottai. It is further stated that the Petitioners did not file any counter in time as prescribed under Section 5(2) of the Act 38 of 2003 and in pursuant to the same, M.L.O.P. No. 111 of 2009 was decided exparte on 30.09.2009. It is also stated that the said amount of Rs. 1,54,290/-was deposited before the Subordinate Judge, Pudukkottai in full satisfaction of the loan amount. The original petition filed by the Respondent in M.L.O.P. No. 111 of 2009 under Section 5(1) of the Act 38 of 2003 being under the special enactment and the procedure provided therein is a summary one, the M.L.O.P. No. 111 of 2009 has to be decided at the earliest before deciding the civil suit in O.S. No. 114 of 2004. It is further stated that under Act 38 of 2003, the competent court alone can fix the amount payable under a decree. The competent authority under Act 38 of 2003 has got jurisdiction to fix the amount that is due under the mortgage. There is no question common to be decided in the M.L.O.P. and the suit and both are different in nature. No common question of facts and law is involved. The intention of the Petitioners herein is only to drag on the M.L.O.P., proceedings which was already decided exparte. As per the provisions of the Act 38 of 2003, the Court under the Act alone has got jurisdiction to try the matter and cannot be transferred to another Court.