Writ Petition No. 35387 of 2007 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 18.12.2007CoramTHE HONOURABLE Mr. JUSTICE P.JYOTHIMANIWrit Petition No.35387 of 2007and M.P.No.1 of 2007M/s. Premier Plass Pack LimitedRep. by its Director,231, Pollachi Road, Kurichi, Coimbatore - 641 021.... Petitioner -Vs.-1. The Central Bank of India Rep. by its Executive Director, No.21 Central Office, Chandramukhi, Nariman Point, Mumbai2. The Central Bank of India Regional Branch, Rep. by its Regional Manager 14-15 Variety Hall Road, Coimbatore - 641 001.... RespondentsPRAYER.: Writ Petition filed under Article 226 of the Constitutionof India for the issuance of a writ of mandamus to direct the respondents to forthwith return the title deeds pertaining to, (a)231 Pollachi Road, Coimbatore, (b) New No.35, D.B.Road, R.S.Puram, Coimbatore, and (c) New No.79, Venkataswamy Road, R.S.PuramCoimbatore, described as under:- S.No. DateSchedule / Description1.22.09.1899Sale Deed executed by Thavanna Pillai in favour of Chinna Konan (Doc. No.1566/1899)2. 18.09.1913Mortgage deed executed by Chinna Konan which is discharged on 27.01.19893. 27.01.1918Conveyance deed executed by Chinna Konan in favour of Rangaswami Konan4.28.01.1918Mortgage deed executed by Rangasamy Konan5.19.03.1928Conveyance deed executed by Rangasamy Konan to Sella Konan6. 07.12.1960Agreement to sell the land to E.B.P.Haran by Sella Konan https://hcservices.ecourts.gov.in/hcservices/

714.12.1960Sale Deed for conveying the land to Sri E.B.P.Haran, Smt. Kamalam, Sri P.Nagarajan and Sri. P.Ramamurthi (Doc. No.7032/1960)828.04.1935Sale Deed executed by Municipal Council of Coimbatore in favour of Smt. Valliammal907.02.1935Sale Deed executed by Valliammal in favour of E.B.P.Haran1015.12.1924Sale Deed executed by Municipal Council of Coimbatore in favour of J.Srinivasa Pillai under Doc. No.4011 of 1924 in the office of the Registrar of Coimbatore.1127.08.1925Sale Deed executed by J.Srinivasa Pillai in favour of Krishnaswamy Pillai under Doc. No.3260 of 1925 in the office of the Registrar of Coimbatore1207.05.1948Agreement of deed executed by Sri.M.K.Surya Pratapam, Sri M.K.Rajaram, Sri M.K.Ganesan, Sri M.K.Seshan and Sri M.K.sampath, sons of M.Krishnaswamy Pillai and Smt. Kumudammal, and Smt. Rajammal wife of Sri. K.Krishnaswamy Pillai in favour of Sri.K.M.Gopalakrishna Iyer, S/o.Mahadeva Jadavallaban for sale deed authorising Sri.M.K.Surya Pratapam to execute the deed of sale as Hindu Joint Family Member.1317.05.1948Sale Deed executed by Sri M.K.Surya Pratapam in favour of K.M.Gopalakrishna Iyer under Doc. No.1794 of 1948 in the office of the Registrar of Coimbatore.1412.07.1956Sale Deed executed by Sri K.M.Gopalakrishna Iyer in favour of Smt. Kamalam under Doc. No.3253 of 1956 in the office of the Registrar of Coimbatore.- - -For Petitioner : Mr. M.S.Krishnan, for M/s. Sarvabhauman Associates. For Respondents : Mr. F.B.Benjamin George- - -

O R D E RWith consent of the learned counsel on either side, the writ petition itself is taken up for final disposal.

The petitioner-Company was originally a partnership-firmunder the name and style of 'M/s.Premier Paper Products', in whichP.Nagarajan, P.Ramamurthy and P.Rajarathinam were the partners. The said partnership firm has availed credit facility from the second respondent-Bank in the form of cash credit and term loans. While availing the said loans, the petitioner-firm has deposited the original documents of title pertaining to the properties situated at (a) 231 Pollachi Road, Coimbatore, (b) New No.35,D.B.Road, R.S.Puram, Coimbatore, and (c) New No.79, Venkataswamy https://hcservices.ecourts.gov.in/hcservices/ Road, R.S.Puram Coimbatore. As per the affidavit the following 14original documents have been entrusted with the second respondent by the petitioner which are as follows:-S.No. DateSchedule / Description1.22.09.1899Sale Deed executed by Thavanna Pillai in favour of Chinna Konan (Doc. No.1566/1899)2.

The second respondent has filed a suit in O.S.No.454 of1995 on the file of the learned Principal Subordinate Judge, Coimbatore, for recovery of the said loan amount. Consequent to the enactment of The Recovery of Debts Due to Banks and FinancialInstitutions Act, 1993, the suit in O.S.No.454 of 1995 was transferred initially to the Debt Recovery Tribunal - I, Chennai, in T.A.No.1499 of 1998 and subsequently to the Debt RecoveryTribunal, Coimbatore, in T.A.No.1458 of 2002. It is due to the https://hcservices.ecourts.gov.in/hcservices/ said litigations, a one-time settlement was arrived at between the parties as per the proceedings of the second respondent dated21.07.2006 and the respondents agreed to receive a sum of Rs.450lakhs together with interest detailed in the letter dated21.07.2006 towards the full and final settlement of the entire claims. The second respondent by a latter dated 17.08.2006 has assured to deliver all the original documents as stated above on payment of Rs.450 lakhs subject to the following conditions:-"a) Withdrawal of the case filed by the petitioner in W.P.No.11228 of 2005 on the file of the HighCourt, Madras.b) And filing of a memo of satisfaction with the Debt Recovery Tribunal, Coimbatore, in T.A.No.1458of 2002".

It is the case of the petitioner that pursuant to the said settlement, the petitioner has paid the entire amount with interest and the same has been duly acknowledged by the second respondent on 16.04.2007. Therefore all the conditions which were agreed between the parties have been complied with. After the settlement, it was the duty on the part of the second respondent to return the original documents to the petitioner.

A reference to the records in the Civil Court shows that at the time of filing of the suit the original documents were not filed. On enquiry from the Debt Recovery Tribunal it was found that the xerox copy of the documents-title deeds were only marked as exhibits and therefore the original documents are still with the second respondent. Since the second respondent has not handed over the original documents, the petitioner has filed the present writ petition.

The second respondent has filed a counter affidavit. Inthe counter affidavit, the second respondent has admitted the receiving of the original documents and also the settlement having been completed between the petitioner and the second respondent. It is also admitted that the title deeds referred to have been marked as exhibits with xerox copies; when the matter was pending in the Debt Recovery Tribunal, Coimbatore, a compromise was entered; while the second respondent took steps to get back the documents of title deeds from the Debt Recovery Tribunal, it was found that the original documents were not available with the Tribunal; the counsel appearing for the second respondent has intimated the Bank that the documents were filed in the Sub-Courtand further the original documents filed in the Sub-Court were not traceable; the counsel has also suggested the second respondent to reconstruct the documents by obtaining certified documents and taking out a newspaper publication vide its letter dated https://hcservices.ecourts.gov.in/hcservices/

04.12.2007. It is the case of the second respondent that the original documents were handed over to its counsel-Mr.M.V.Nagasubramaniam on 10.04.1995 and the second respondent is not able to find out the reason as to whether the documents were misplaced. According to the second respondent, the counsel is also taking earnest steps to locate the documents but till date the respondents are unable to locate the documents.

In the letter referred to in the counter affidavit dated04.12.2007 addressed by the counsel for the second respondent to the second respondent, it is stated as follows:-"The documents can be reconstructed and handed overto the party with an undertaking that the originals will be handed over to them as and when they aretraced. We can also give a paper publication informing the public that the documents are missing. These steps will adequately safeguard the interests of the parties. The party can always rely upon these facts to show that the original documents are really missing and that they have not been used in any other transaction. If any co-operation is required from my end, I am always prepared to extend it. I am sure quite upset over this issue since I have never been under such apredicament before"

Learned counsel for the second respondent fairly submitted that this is a case wherein the whereabouts of the original documents were not traceable inspite of the efforts taken by the second respondent as well as by its counsel. He further submitted that the second respondent-Bank is prepared to issue certified /attested copies of various documents stated above and in addition to that a publication will be issued in the leading newspaper about the missing of the documents. He also further submitted that the second respondent-Bank is prepared to take up this suggestion in safeguarding the interest of the petitioner.

On the other hand the learned counsel appearing for the petitioner submitted that the petitioner is ready to accept the said two suggestions made by the learned counsel for respondents. He further submitted that in addition to the the suggestions, the second respondent may be directed to furnish an Indemnity Bond to the effect that in the event of the petitioner sustaining any loss, due to the loss of original documents, the secondrespondent-Bank should indemnify the loss to the extent of the damages incurred by the petitioner.

I have heard the learned counsel for the petitioner and the learned standing counsel for the respondents. https://hcservices.ecourts.gov.in/hcservices/

Based on the undertaking given by the second respondent in the counter affidavit, I am able to see that the documents have been misplaced and not traceable. It may be due to the reason that originally the suit was filed in the Sub Court and subsequently by enactment of the Act the suit has been transferred to the Debt Recovery Tribunal, Chennai and on creation of the DebtRecovery Tribunal, Coimbatore, again it was re-transferred to the Debt Recovery Tribunal, Coimbatore and in that process of transfers, there is a possibility of misplacing the documents in question either by the second respondent or by its counsel or in any other manner.

In view of the same, I am of the considered view that as suggested by the second respondent in the counter affidavit the second respondent should be directed to issue certified / attested copies of the documents stated to have been entrusted by the petitioner to the second respondent and in addition to that the second respondent should be directed to give a public notice in the leading newspaper about the missing of the documents.