V P THAMARAISELVI Vs. INDIAN BANK

JUDGEMENT

(1.) THIS writ petition is filed for the issue of a Writ of declaration, declaring the entire process undertaken by the respondent Nos. 2 and 3 herein starting from the filing of O.A.No.287 of 2004 upto the auction sale dated 14.2.2007 is without jurisdiction, invalid and void abinitio.

(2.) THE case of the petitioner is the petitioner's husband Late V.P. Palanisamy was originally a partner of a Firm called V.P.Garments. THE said Firm availed certain loans and facilities from the first respondent Bank during the period between 4.12.1992 and 9.11.1994. However, the firm was dissolved and reconstituted into a partnership business in the name of the petitioner's husband Mr. V.P. Palanisamy. THE properties of the petitioner's husband comprised in S.F.No.330 of Rakyapalayam Village, Avinashi Taluk, Coimbatore District were given as collateral security for the loans availed and equitable mortgage in respect of the properties was also created by Late Mr. V.P. Palanisamy in favour of the Bank. Subsequent to the death of the petitioner's husband, the Bank filed a suit before the Sub-Court, Tirupur in O.S.No.470/2000 for the following relief: "26. THErefore, the plaintiff prays that this Honourable Court may be pleased to pass a preliminary decree:-

(3.) ON the other hand, the learned counsel appearing for the first respondent Bank has submitted that Late Mr. V.P. Palanisamy deposited the title deeds pertaining to the property in question on 19.12.1992 and on 21.12.1992 the said late V.P. Palanisamy executed a memorandum of deposit of title deeds in favour of the Bank, confirming the deposit of the title deeds and creation of equitable mortgage. According to the learned counsel for the first respondent Bank, after the death of Mr.V.P.Palanisamy with the full knowledge that V.P. Palanisamy has deposited the title deeds in question, his son seems to have filed a suit in O.S.No.37 of 1997 with a view to avoid probable legal action taken by the Bank against the property mortgaged, for partition. According to the learned counsel for the first respondent Bank, the said suit was a collusive one and was only filed with an intention to defeat and delay the claim of the first respondent as secured creditor in respect of the entire property mortgaged to the Bank by late V.P.Palanisamy. According to the learned counsel for the respondent Bank since the mortgage created over the property in question was not cleared, the first respondent Bank filed O.S.No.470 of 2000 and obtained a preliminary decree for a sum of Rs.8,52,228/-. As the decretal amount exceeds Rs.10 lakhs payable by the judgment debtor and since the Civil Court seized to have the jurisdiction over the execution of the decree, the first respondent Bank preferred O.A.No.287/2004 on the file of the 2nd respondent. According to the learned counsel, as per Sec.2[g] of Act 51 of 1993 definition "debt" includes "decreetal debt" also, consequently, the Bank had filed O.A.No.287/2004. According to the learned counsel, the petitioner has also entered appearance in the said O.A. and the said O.A. was disposed of by an order dated 4.10.2005 and the Recovery Certificate was also issued in R.P.No.150/2005 on 7.11.2005. According to the learned counsel, having knowing fully well that they do not have a case on merit, the petitioner and her son had submitted before the Tribunal. Apart from this, according to the learned counsel for the respondent Bank, no appeal has been preferred by the petitioner or her son as against the order passed in O.A.No.287/2004 and even as against the order passed in I.A.No.644/2006 to issue a fresh certificate only in respect of 1/3rd share of the petitioner's husband. No appeal was filed. As such, according to the learned counsel for the respondent Bank, the matter has attained its finality and now, the petitioner cannot raise the point with regard to the jurisdiction. Apart from this, the decree passed in O.S.No.37/2007 does not bind the respondent Bank nor will alter the position of the mortgage in respect of the entire property created by V.P. Palanisamy. Basing on this, learned counsel for the respondent Bank, has prayed for the dismissal of the above said writ petition.