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Supreme Court of India
Paul vs T. Mohan on 24 April, 2020Author: Vineet Saran
Bench: Vineet Saran, Hemant Gupta, M.R. Shah
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6146 OF 2019
PAUL ….APPELLANT
VERSUS
T. MOHAN AND ANOTHER ….RESPONDENT(S)
JUDGMENT
Vineet Saran, J.
The appellant herein is the auction purchaser of the
scheduled property measuring 2 acres 43 cents in Village
Managiri, Madurai District, Tamil Nadu, which auction has
been quashed by the High Court, and hence, this appeal.
2. The brief facts of this case are that the respondent No.
Signature Not Verified
1 – T. Mohan was a guarantor of one Rajendran (who was
Digitally signed by
DEEPAK SINGH
Date: 2020.04.24
16:59:00 IST
Reason:
his son’s friend). The said Rajendran had taken a chit for a
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sum of Rs. 5,00,000/ (Rupees five lakhs only) from
respondent No. 2 Shriram Chits Tamil Nadu Ltd. (for short
“Chits Company”) for a period of 40 months and had
executed a pronote dated 18.01.2000 for a sum of Rs.
3,37,500/ (Rupees three Lakhs thirty seven thousand five
hundred only), for which the respondent No. 1 and his son
stood as guarantors, and for that, a collateral security of the
scheduled property had been executed. The said Rajendran
had paid the first 25 installments out of 40 and thereafter
failed to pay the remaining installments. A notice was
issued to the said Rajendran requiring him to pay the
remaining amount of Rs. 1,84,840/ (Rupees one lakh
eighty four thousand eight hundred forty only) along with
interest @ 24%, which he failed to pay. The respondent No.
2 Chits Company, thus filed a petition under Section 64
(1)(A) of Indian Chit Funds Act, 1982 before the Deputy
Registrar of Chits, Madurai South, in which an exparte
Award dated 21.1.2002 was passed and the respondent No.
1 was directed to pay a sum of Rs. 1,95,631/ (Rupees one
lakh ninety five thousand six hundred thirty one only) to the
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respondent No. 2Chits Company. Respondent No. 1
claimed that he was not aware of the exparte award.
3. The respondent No. 2 Chits Company filed Execution
Petition No. 21 of 2003 before the Ist Additional Subordinate
Judge, Madurai for execution of the exparte Award.
4. On receipt of the notice of the execution proceedings,
the son of respondent No. 1 started to repay the due
amount in instalments. However, in the meantime, the suit
property was auctioned on 01.03.2010, in which the
appellant was the highest bidder, for an amount of Rs.
1,77,000/ (rupees one lakh seventy seven thousand only)
and the same was confirmed on 04.03.2010, after the
appellant had deposited the said amount. On coming to
know of the said facts, the son of respondent No. 1
approached the respondent No. 2Chits Company and
repaid the entire amount. On 10.3.2010, respondent No. 1
preferred Revision being Executing Application No. 208 of
2010 under Order XXI Rule 89 and Section 151 of Code of
Civil Procedure, 1908 (CPC) for settingaside the auction of
the suit property. It is noteworthy that during the
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pendency of the said application, respondent No. 2 Chits
Company had issued a nodues certificate, as the entire
dues had been cleared by the respondent No. 1, which facts
was brought to the knowledge of the Executing Court.
5. The matter was kept pending, without any progress,
for nearly four years and in the meantime, respondent No.
1 had sold the suit property to a third party on 12.09.2011.
It was, thereafter that on 01.04.2014, the Revision filed by
the respondent No. 1 was dismissed and sale certificate was
issued in the name of auction purchaser – appellant on
21.7.2014. Based on the same, the appellantauction
purchaser made an attempt to take the possession of the
property, which was objected to by the third party
purchaser and on the complaint of the third party
purchaser, the respondent No. 1 and his family members
were arrested and later released on bail. The respondent
No. 1 contends that it was only after he was released on
bail that he came to know of the dismissal of his Revision
and after obtaining the certified copy of the order, he
preferred Civil Revision Petition before the High Court,
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which has been allowed by a detailed judgment dated
02.08.2018, the operative portion of which is extracted
hereinbelow:
“In the Result:
(a) This Civil Revision Petition is allowed and the
impugned order in EA No. 208 of 2010 in E.P.
No. 21 of 2003 dated 1.3.2014, on the file of
the learned Ist Additional Subordinate Judge,
Madurai is setaside and the auction sale
dated 04.03.2010 is also setaside.
(b) The revision petitioner/guarantor is hereby
directed to deposit the entire auction sale
amount of Rs. 1,77,000/ along with the
interest at the rate of 9% per annum from the
date of auction i.e. on 04.03.2010 till the date
of deposit, before the Executing Court namely;
the learned Ist Additional Subordinate Judge,
Madurai, within a period of two weeks from the
date of receipt of a copy of this order;
(c) The 2nd respondent/auction purchaser shall be
entitled to claim the amount by making
necessary application before the Executing
Court;
(d) The Executing Court namely; the learned Ist
Additional Subordinate Court, Madurai is
directed to pass orders for proclamation
informing the concerned Registrar of
Registration Department for making necessary
entry to this effect and further cancel the entry
regarding the sale certificate dated 21.7.2014
issued in favour of 2nd respondent/auction
purchaser;
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(e) The Executing Court is directed to complete
the said exercise within a period of two weeks
from the date of deposit of the amount by
revision petitioner as directed in clause (b);
(f) The revision petitioner is entitled to make
necessary application before the executing
court seeking refund of the amount deposited
by the 2nd respondent/auction purchaser,
pursuant to the auction held on 04.03.2010,
which application shall be decided by the
Executing Court after giving notice and
sufficient opportunity to the Ist respondent
chits, which exercise shall be completed within
a period of two months from the date of such
application. No costs. Consequently,
connected miscellaneous petition is closed.”
6. The specific case of respondent No. 1 before the High
Court was that the petition filed by the respondent No. 2
Chits Company before the Deputy Registrar of Chits,
Madurai South was itself not maintainable, as no prior
notice was issued to the respondent No. 1. It was also
contended that straightaway upset price fixed as Rs.
1,77,000/ was very much lower than the guidelines
contemplated under CPC and those issued by this Court. It
was further contended that respondent No. 1 was merely
the guarantor of one Rajendran and the Deputy Registrar of
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Chits should have first considered recovering the amount
from the said Rajendran before proceeding against the
respondent No. 1. The specific case of respondent No. 1 was
that he had paid the entire amount within a week of the
auction and obtained the nodue certificate from respondent
No. 2 Chits Company, of which the Executing Court did not
take notice and the matter was kept pending for nearly four
years. With regard to dismissal of his Revision by the Ist
Additional Subordinate Judge on the ground that the
provisions of Order XXI Rule 89 CPC were not complied
with, it was contended that the application preferred by
respondent No. 1 to setaside the auction was also filed
under Section 151 CPC and since the entire amount had
already been paid by the respondent No. 1 to the
respondent No. 2Chits Company, which had also issued a
nodue certificate, there was no necessity to deposit the
auction amount along with 5% interest as required under
Order XXI Rule 89 CPC.
7. The main contention of the appellant before the High
Court was that the Revision of respondent No. 1 was rightly
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dismissed by the Revisional Court for noncompliance of
the provisions of Order XXI Rule 89 CPC and as such, the
auction was rightly held and confirmed.
8. The High Court took notice of the said contentions of
both the parties and was of the opinion that “before
applying the legal provisions and testing their applicability,
the Court has to look into the facts and circumstances of that
particular case”. The High Court noted that the
respondent No. 1 was merely a guarantor and not a
borrower and that the entire due amount was deposited by
respondent No. 1 with the respondent No. 2 – Chits
Company, for which nodues certificate was also issued, of
which due information was given to the Execution Court,
which had not been considered. Thus, since the Revision
had been filed within less than a week of the auction and
entire dues had been settled, the confirmation of the
auction was not justified.
The High Court further held that the application
had been filed also under Section 151 CPC and the
inherent powers ought to have been invoked in the facts of
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the present case, as the entire amount due had been paid
and the respondent No. 1 was merely a guarantor, and not
the borrower. After noticing that the right to property is a
constitutional right, which could not be infringed in the
manner as has been done in the present case, the High
Court allowed the Civil Revision Petition. The High Court
further held that the present case was that of a real fraud
committed by the borrower, and the guarantor had lost his
property and was knocking the doors of the High Court to
save his right to hold the suit property. The High Court
noticed that there would be substantial injury caused to the
respondent No. 1guarantor, if his property was allowed to
be taken away. It was, in such facts and circumstances of
this case, that the Civil Revision Petition was allowed with
the directions, as have been quoted hereinabove.
9. The submission of the appellant herein is primarily
based on the Revision of respondent No. 1 having been
dismissed by the Revisional Court on the ground of non
compliance of Order XXI Rule 89 CPC. In our view, the said
question has been dealt with by the High Court in detail and
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in the peculiar facts and circumstances of this case, we are
of the opinion that the view taken by the High Court is not
such, which would call for interference under Article 136 of
the Constitution of India, as in our view, substantial justice
between the parties has already been done. Without laying
down any law with regard to the issue relating to the
application or noncompliance of Rule XXI Order 89 CPC, in
the peculiar facts and circumstances of this case, we are not
inclined to interfere with the view taken by the High Court.
Accordingly, this Civil Appeal stands dismissed. The
question of law is kept open.
No order as to costs.
………………………………..J.
[UDAY UMESH LALIT]
……………………………..J.
[VINEET SARAN]
NEW DELHI;
APRIL 24, 2020.
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