@JUDGMENTTAG-ORDER
R. Banumathi, J.@mdashThe Petitioner/Appellant has filed this Petition for return of documents Exs.A.7 to A.22.
2. The Respondent-Plaintiff Bank has filed the suit for recovery of a sum of Rs. 9,77,558/ - together with interest at the rate of 21.5% with quarterly rests from 06.12.1995 till the date of realisation and in default to pass final decree for sale of mortgaged properties described in ''B'' schedule and in case the sale proceeds is not sufficient to satisfy the decree by passing personal decree against the Appellant-Defendant. The trial Court decreed the suit for Rs. 9,77,558/- with subsequent interest at the rate of 21.5% from the date of suit till the date of realisation and passed preliminary decree. Trial Court also directed the Defendant to pay suit costs. The appeal in A.S. No. 933 of 2004 arose out of the decree and judgment in O.S. No. 11 of 2002 decreeing the Respondent/Plaintiff Bank''s suit and directing the Appellant/Defendant to pay a sum of Rs. 9,77,558/ - along with contractual rate of interest at 21.5% p.a. from the date of suit till the date of realisation.
3. When the Appeal came up for hearing, the Petitioner/Appellant offered to settle the claim by one time settlement, for which Bank was also agreeable, upon consideration of one time settlement proposal by Petitioner/Appellant and having regard to the facts and circumstances of the case, by our judgment dated 30.6.2010, we have modified the judgment of the trial Court as under:
12. In the result, the Judgment of the trial Court in O.S. No. 11/2002 dated 26.02.2003 is modified and the Appeal is allowed in respect of rate of interest alone. Appellant-Defendant shall pay the total sum of Rs. 26,87,347/ - [Rs. 9,77,558/ - (suit claim) plus Rs. 17,09,789/ - (interest)] within a period of four months from this date. Appellant-Defendant shall also pay interest at the rate of 6% p.a. on the said amount of Rs. 26,87,347/ - from 30.06.2010 till the date of payment or four months which ever is earlier. In the event of the Appellant/Defendant''s failure to pay the amount, Appellant-Defendant is bound to pay interest at the rate of 12% p.a. from 30.06.2010. Appellant-Defendant shall also pay the suit costs of Rs. 73,319/ - to the Respondent-Plaintiff bank. In the circumstances of the case, there is no order as to costs in the Appeal. Consequently, connected C.M.P. is closed.
It was stated before us that Appellant-Defendant has deposited a sum of Rs. 6,63,000/ - to the credit of O.S. No. 11/2002 on the file of Additional District Judge, Fast Track Court No. II, Salem. Respondent-Plaintiff Bank is at liberty to immediately withdraw the said amount along with accrued interest without recourse to issuing notice to the Appellant-Defendant immediately on production of the copy of this Judgment and appropriate the same towards the amount payable to the Respondent-Plaintiff bank viz., Rs. 26,87, 347/ -.
4. Petitioner/Appellant states that he has arranged to pay the amount of Rs. 19,07,715/ - plus the amount of Rs. 6,63,000/ - already deposited to the credit of O.S. No. 11 of 2002 on the file of Additional District Court-cum-fast Track Court No. II, Salem. Now, the Petitioner/Defendant claims that since he has paid the amount,as per the direction of the Court, the Petitioner prays for return of documents/title deeds - Exs.A.7 to A.22 produced by him.
5. Learned Counsel for petitioner Mr. S. Ramanarayan submitted that since the Petitioner/Appellant has paid the entire suit claim of Rs. 26,87,347/ - and also cost and therefore, the petitioner is entitled to return of documents - Exs.A.7 to A.22.
6. The Respondent/Plaintiff Bank resisted the Petition contending that the Petitioner is a guarantor and mortgagor in relation to the loan transaction between M/s. Sundaram Metals and Alloys represented by its Proprietrix S. Nagarathna, who is none other than the wife of the Petitioner and by the letter dated 25.6.1988 the Petitioner has extended the mortgage already created in favour of the Respondent. It is further averred that because of the default committed by the borrower, plaintiff Bank has filed O.S. No. 908 of 1995 on the file of Additional Sub-Court, Salem for recovery of Rs. 18,16,832/ - together with interest at the rate of 20.75% per annum with quarterly rests from 6.12.1995 till date of realization. The said suit - O.S. No. 908 of 1995 was transferred to Debt Recovery Tribunal (DRT) -I, Chennai and re- numbered as T.A. No. 24 of 2000 from where it was transferred to DRT, Coimbatore and re-numbered as T.A. No. 2116 of 2002 and again the same was transferred to DRT Madurai and now pending as T.A. No. 208 of 2008 and the next date of hearing was stated to be 30.8.2010. According to the Respondent/Bank, in view of the extension of mortgage already created in favour of the Respondent Bank, the documents are to be produced before the DRT, Madurai in the said T.A. No. 208 of 2008.
7. Learned Counsel for Petitioner Mr. S. Ramanarayanan submitted that as per Section 67-A of the Transfer of Property Act, if there are more than one mortgage created by the mortgagor in favour of the same mortgagee, the mortgagee should file a single suit, otherwise the mortgagee has no right to claim on the mortgage. It was further contended that unless mortgagee files single suit no mortgage suit shall lie u/s 67-A by the mortgagee and therefore the Plaintiff Bank cannot have a legitimate claim against the Petitioner in T.A. No. 208 of 2008 and therefore the Respondent Bank cannot any further retain the documents.
8. In support of his contention, learned Counsel for the Petitioner placed reliance upon judgments
9. Drawing our attention to the various dates and events, in respect of the loan transaction between M/s. Sundaram Metals and Alloys, the learned Counsel for Respondent bank has submitted that by the letter dated 25.6.1988, the Petitioner has extended the equitable mortgage already created in favour of the Respondent to guarantee the said loan transaction of M/s. Sundaram Metals and Alloys. It was further submitted that the letter of depositing the title deeds executed by the Petitioner dated 29.9.1981 filed in O.S. No. 11 of 2002 and the relevant documents are to be filed and marked in T.A. No. 208 of 2008 before DRT, Madurai and therefore the order for return of documents to the petitioner would cause serious prejudice to the Respondent/Plaintiff Bank.
10. We have considered the rival contentions. Section 67-A of Transfer of Property act reads as under:
67-A. Mortgagee when bound to bring one suit on several mortgages. - A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree u/s 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.
11. The questions falling for our consideration are (i) Whether the Petitioner had extended the equitable mortgage to cover the loan transaction of M/s. Sundaram Metals and Alloys and (ii) Whether, without filing a single suit, a mortgagee can recover the amount by a second suit. In our considered view, since the matter is pending before DRT, Madurai in T.A. No. 208 of 2008, the above questions are to be raised only before the DRT, Madurai and it is for the DRT to go into those questions on merit. This, being the Appellate Court, as against the judgment in O.S. No. 11 of 2002, this Court cannot express any views on those questions, lest it would prejudice the claim of the Bank in the pending proceedings before the competent authority/DRT. We are of the view that when the matter is pending before the DRT, Madurai, return of documents would cause serious prejudice to the Plaintiff Bank''s claim. In such view of the matter, the Petition is dismissed leaving the issue to be adjudicated before the DRT, Madurai. No costs.
