R. Ravikumar vs Lakshmi Achi

R. Mala, J.—Civil Revision Petition is filed against the fair and decretal order dated 06.09.2012 made in I.A. No. 547 of 2011 in O.S. No. 484 of 1999 on the file of the Sub-Court, Namakkal.

At the time of admission, argument of the learned counsel for the revision petitioner is heard in length.

The respondent herein as a plaintiff filed a suit for recovery of money due on promissory note. During pendency of the suit, the second defendant/revision petitioner herein came forward with an application under Order VII Rule 11 of C.P.C. for rejection of the plaint stating that there is no cause of action against the second defendant for filing the suit. The trial Court, after hearing both sides, dismissed the application, against which, the present revision petition is preferred by the second defendant/revision petitioner.

Learned counsel for the revision petitioner/second defendant submitted that the application under Order VII Rule 11 of C.P.C. can be filed at any stage. Even though the suit is filed in the year 1999, the second defendant filed the application in the year 2011, which is not barred. It is further submitted that the suit has been filed on the basis of the unregistered mortgage deed, which is not an admissible in evidence and hence, the suit is barred by law. Further, there is no cause of action against the second defendant for filing the suit. Hence, he prayed for allowing the revision petition.

Considered the submissions made by the learned counsel for the revision petitioner and perused the typed set of papers.

The respondent herein as a plaintiff filed a suit for recovery of money due on promissory note dated 10.08.1996 and also deposit of title deeds by creating equitable mortgage. Since the defendants have not discharged the loan amount, after issuance of notice, the plaintiff filed the suit for recovery of money due. During pendency of the suit, the second defendant came forward with an application in I.A. No. 547 of 2011 under Order VII Rule 11 of C.P.C. for rejection of the plaint stating that the suit is barred by limitation.

Now this Court has to consider that whether the application filed under Order VII Rule 11 of C.P.C. can be entertained after commencement of trial? It is well settled dictum of the Apex Court that the application under Order VII Rule 11 of C.P.C. can be filed at any stage. So the first limb of argument advanced by the learned counsel for the revision petitioner in this aspect can be accepted.

The second limb of argument is that whether the suit is barred by any law. According to the learned counsel for the revision petitioner, since the suit is only for recovery of money due on unregistered simple mortgage deed, the suit is barred by law (i.e.) want of registration.

On perusal of confirmation agreement, which finds place in page-1 of the typed set of papers, it reveals that the revision petitioner along with his father and sister executed the promissory note on 10.08.1996 after borrowing Rs. 1,00,000/- by way of cheque from the plaintiff, for which, the defendants 1 to 3 executed the above said confirmation agreement dated 12.08.1996 by depositing of title deeds and created equitable mortgage. In the year 1996, for creating equitable mortgage, mere depositing of title deeds by way of confirming letter is sufficient and that document need not be registered. In such circumstances, argument of the learned counsel for the petitioner that the suit is bared under law, does not merit acceptance.

Now this Court has to decide whether the suit is barred for non disclosure of cause of action? In the plaint, it was stated that all the three defendants borrowed money from the plaintiff, for which, they executed promissory note and they also created equitable mortgage by way of depositing of title deeds and they paid interest for some time. In the cause of action also, the plaintiff mentioned all the above averments. Under such circumstances, all the three defendants were jointly liable to pay that amount. But the argument of the learned counsel for the revision petitioner that no cause of action arose against the second defendant/revision petitioner does not merit acceptance.

It is pertinent to note that on perusal of impugned order passed by the trial Court, it was specifically mentioned that the suit is of the year 1999, twice exparte decree has been passed, P.W. 1 was examined and documents were marked. Thereafter, the second defendant came forward with the present application only to drag on the proceedings. So the revision petition is mere abuse of process of the Court and hence, it is hereby dismissed with costs.

In the result, the Civil Revision Petition is dismissed with costs. The revision petitioner herein is directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) to the Tamil Nadu State Legal Services Authority, High Court, Chennai.