N RAMACHANDRAN Vs. ELLORA OUTFITS (DISSOLVED PARTNERSHIP FIRM)

JUDGEMENT

(1.) This Civil Revision Petition is filed by the 3rd defendant in the Suit in O.S.No.326 of 2011 as against the order passed by the learned Principal Subordinate Judge, Thanjavur in I.A.No.166 of 2013 in O.S.No.326 of 2011. The 3rd respondent herein has filed the suit in O.S.No.326 of 2011 for declaration to declare the memorandum of deposit of title deeds executed by the plaintiff on 06.02.2009 as discharged and for a consequential mandatory injunction, directing the third defendant to return the list of documents mentioned in the suit scheduled within a time to be fixed by that Court.

(2.) It is not in dispute that the first defendant borrowed some amount from the third defendant. The plaintiff also executed a memorandum of deposit of title deeds in respect of the suit property in favour of the third defendant on 06.02009 as security for the loan. It is the specific case of the plaintiff that the plaintiff did not borrow any money from the third defendant to create a mortgage by depositing title deed and only obliged to the request of the first defendant to offer the title deeds as a security for the loan facility offered to the first defendant. The main contention of the plaintiff in the suit is that the second defendant, a proprietary concern, owned by one V.Senthilkumar, has taken over the business of the first defendant and that he has no knowledge about the transaction between the second defendant and the third defendant. Since, the third defendant is presumed to have discharged the loan and the security by permitting the first defendant in the suit being take over by a new proprietary concern, it is stated that the plaintiff is entitled to a decree as prayed for.

(3.) An application in I.A.No.166 of 2013 in O.S.No.326 of 2011 under order 14 Rule 2 of CPC was filed by 3rd defendant, to try the issue whether the Civil Court has jurisdiction to try the suit in view of the bar imposed by the SARFAESI Act. The lower Court dismissed the petition on the ground that the plaintiff is not a debtor and that he has independent right contract Act and hence he is not precluded from filing the suit before the Civil Court.