S ABRAHAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner herein seeks a writ of certiorari from this court quashing the order of the second respondent dated 31.03.1981 confirming the order of the third respondent dated 21.07.1980 holding that the fourth respondent herein is entitled to the benefit of S.6 of Tamil Nadu Act XIII of 1980.

(2.) The petitioner herein had advanced a sum of Rs.15,000 on a house property owned by one Alagappa Pillai. the said Alagappai Pillai has sold the said house property to the fourth respondent for Rs. 31,500. In the sale deed executed by Alagappa Pillai in favour of the fourth respondent the mortgage amount payable to the petitioner has been deducted to discharge the mortgage. That the mortgage amount payable to the petitioner has been retained by the fourth respondent out of sale consideration, is not in dispute. After the purchase, the fourth respondent who has retained a sum of Rs.15,000 representing the entire mortgage amount with him out of the sale consideration has filed an application under Section 6 of the Tamil Nadu Act XIII of 1980 for a certificate of discharge of the mortgage on the ground that his annual house-hold income is less than Rs.4,800 and therefore his is entitled to the benefit of the Act. The said application was resisted by the petitioner on the ground that the sum of Rs.15,000 payable by the fourth respondent representing a portion of the purchase price which has been retained by him for payment to the petitioner as a mortgagee and as the said amount is a portion of the purchase price his is exempted from the provisions of the Act and therefore whether the fourth respondent is a debtor or not under the Act, the debt in question is not liable to be discharged. In view of the fact that the petitioner sought exemption of this debt from the provisions of the Act, he did not adduce evidence as regards the value of the property purchased by the fourth respondent and on the question whether the worth of the property will disentitle him from claiming the benefits under the Act.

(3.) Both the initial authority and the appellate authority have gone into the question whether the fourth respondent's annual income is less than Rs.4,800/ and whether the fourth respondent is a debtor as defined in the Act, and after holding that the annual income of the fourth respondent is less than Rs.4,800 they have proceeded to grant the relief sought for by the fourth respondent without going into the question whether the debt in question represents the purchase price of the property purchased by the fourth respondent and whether such a debt is excluded from the provisions of the Act.