E PAZHANI NATTAR Vs. S EZHUMALAI

JUDGEMENT

(1.) THE above writ petition has been filed for the issue of a writ of certiorari the records and quash the proceedings of the second respondent in R.C.ANo.1/26205/1982, dated 23.9.1983 and of the third respondent in Pa.Mu.Ka.Ni.Ma.No.715 of 1980, 20.10.1982.

(2.) THE petitioner, in the affidavit filed in support of the writ petition, states that the respondent borrowed a sum of Rs.6,000 from the petitioner under a registered mortgage deed dated 13.9.1973 undertaking to repay the same with interest at 12% per annum. copy of the mortgage deed produced in the typed set discloses that the total extent of mortgaged was about 4.61 acres with well and electrical pump set with installations and even as on the date of the mortgage, the property was said to be of the value of Rs.20,000. THE first respondent did not discharge the mortgage, but moved the third respondent means of an application under Sec.6(1)(a) of the Tamil Nadu Debt Relief Act, 1980 certificate of release and redemption on the ground that he was entitled to the benefits the said Act. It was his claim that he receives only an annual income of Rs.3,500 and sold about two acres of land and that the remaining land would be worth Rs.17,000 only further he was living in a rented house. On that basis, the first respondent claimed relief. third respondent, on the view that though time was granted to enable the petitioner produce materials to substantiate his claim that the mortgaged properties were of the of Rs.50,000 and add has not produced such materials, sustained the claim of respondent and allowed release and discharge, Aggrieved, the petitioner has filed an before the second respondent. THE second respondent also merely placed reliance upon the certificate of the Tahsildar regarding income of the first respondent and held that the petitioner has not proved that the respondent was in possession of properties worth more than Rs.25,000. Aggrieved, above writ petition has been filed.

(3.) I have carefully considered the submissions of the learned counsel appearing on side. In my view, respondents 2 and 3 have miserably failed to be alive to the duties responsibilities cast upon those authorities under the statute. Respondents 2 and 3 ought have seen that the orders passed by them have the effect of depriving substantial rights parties involving civil consequences on the claims of the creditors for necessary of due and, therefore, the functions and duties are expected to be discharged with degree of responsibility. So far as the case on hand is concerned, the debt in respect which the discharge and release was claimed was a mortgage and the deed itself contained the description of the property, the extent and the rough valuation as on the date mortgage. It is common knowledge that the value of the properties were ever increase, though the parties are obliged to substantiate the extent of such increase individual case. From the order of the third c respondent, it is seen that the first respondent claims to have sold about 2 acres of land and that the remaining land even according would, be of the value of Rs.17,000. There is no controversy over the fact that no copy sale deed to support the claim of the alleged sale of two acres of land has been produced before the authorities. In the light of such a position, and each having regard to the valuation admitted of the remaining lands, the third respondent faded to properly advert question of valuation and discharge his duties judiciously and properly by due application mind by objective standards. That apart, the third respondent does not appear to taken into account the value of the well as weft as of the value of electrical installations these are mattes which ought to have been taken into account by respondents 2 and determining the value of the assets of the first respondent before according the relief debtor. Maybe, in a case where there is no proof of possession of any properties, the will be heavy on the part of the creditor to substantiate that the debtor was at possession the properties worth more than Rs.5,000. But, in this case, as pointed out earlier, the itself is a mortgage debt and the description and other details of the properties ate available very much in the copy of the mortgage deed itself. If that be the position, dehars attempt, if any node by the Creditor, the authorities themselves have duties and obligation to assess properly the value of the properties with the knowledge and resources that have as authorities of the Revenue Department at the taluk level The debtor also totally exonerated of his liability to place particulars about the value of the properties he admittedly mortgaged. No attempt has been made by the first respondent also even produce evidence regarding the alleged sale of a portion of the property. All these aspects would go to show that the consideration by the statutory authorities viz., respondents 3 vested with quasi-judicial powers have been more in a shipshod and perfunctory manner and final orders were passed in such cursory manner, without due or judicial and judicious application of mind and consequently such orders cannot have the approval of this even while exercising jurisdiction under Art.226 of the Constitution of India. Perversity preach and non-application of mini are writ large on the impugned orders. Consequently, impugned orders are hereby quashed. The third respondent is directed to restore application filed by the first respondent to its file and dispose of the same afresh accordance with law, after giving due opportunity to the parties concerned. The writ, petition shall stand allowed to the extent indicated above. No costs. Petition allowed.