M DHANASEKARAN Vs. PARK TOWN BENEFIT FUND LTD

JUDGEMENT

(1.) O.A. Nos.643 and 644 of 2006 are filed by the applicant/plaintiff to pass an order of interim injunction restraining the respondents from disturbing and interfering with the peaceful possession of the applicant in the suit property and from alienating, leasing or dealing in any manner of the suit property. A. No. 2946 of 2006 is filed by the 2nd defendant to vacate the order of interim injunction granted on 17.08.2006 in O.A. No.644 of 2006.

(2.) THE above Original Applications are filed by the mortgagor of a property situate in No. 76 (Old No.11-B), Eldams Road, Teynampet, Chennai-18, which was constructed in ground plus two floors with plinth area of 2550 sq.ft. THE remedy sought for is to grant interim injunction against alienation and any encumbrance in the above property. THE 1st respondent is a Nidhi and the 2nd respondent is the purchaser in the public auction held on 27.03.2003. THE mortgage was dated 01.08.1994 for a sum of Rs.20 lakhs upon the above property, which was obtained by the applicant, by a Partition Deed of the year 1985 with his parents and co'borns. Excepting a sum of Rs.2,22,381/-, the debt remains unpaid and so the mortgagee has brought it in the public suction, wherein 2nd respondent, one of the subscribers of 1st respondent, had purchased it for a sum of Rs.35 lakhs. On payment of the balance of Rs.21.50 lakhs, after making initial payment of Rs.13.50 lakhs by 2nd respondent, the sale was confirmed on 21.07.2004 and sale deed was also executed in his favour. This sale was resisted by applicant/plaintiff as devoid of statutory notice under Section 69 of Transfer of Property Act (hereinafter referred to as "the Act") and so, it was contended that the sale is bad.

(3.) AGAIN to say that notice was unclaimed by the mortgagor is not an answer for compliance of Section 69(2) because the statutory obligation on the part of mortgagee is to serve such notice upon the mortgagor. Further, the copy of unclaimed endorsement was found only for the earlier auction sale of the year 2001-2002. Similarly, the copies of publication in DHINA THANTHI dated 23.03.2003 may not also amount to service of notice as required under Section 69(2) of the Act. It has been held in Babamiya v. Jehangir, AIR 1941 Born. 339 that advertisement of sale of mortgaged property in newspaper is not sufficient intimation. In that case, it was held as follows: