The Authorized Officer v. Tamil Nadu.2. Pappammal3. M/s. Asia Pacific International

W.P. No. 33020 of 2023For Petitioner: Mr. M.L.GaneshFor Respondents: Mr. S.J.Mohamed Sathik (R1) Government Advocate Mr. I.M.Siddartha Ramarajan (R2) Ms. Dhanalakshmi (R3) Mr. N.Damodaran (R4 and R5)O R D E RHeard Mr. M.L.Ganesh, Learned Counsel for the Petitioner, Mr. S.J.Mohamed Sathik, Learned Government Advocate appearing for the First Respondent, Mr. G.Prabhu, Learned Counsel for the Second Respondent, Ms. Dhanalakshmi, Learned Counsel for the Third Respondent and Mr. N.Damodaran, Learned Counsel for the Fourth and Fifth Respondents and perused the materials placed on record, apart from the pleadings of the parties.2.The Fourth and Fifth Respondents are the grandsons of one K.Velusamy, who owned the property situate at Door Nos.9 & 10, Perumanallur Road, 3rd West Lane, Tiruppur Town, Tiruppur Taluk, Coimbatore District, and had by Will dated 13.06.2003 bequeathed the said property in their favour after providing life interest to his wife, viz., Pappammal. The said K.Velusamy died 2/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023on 12.07.2006 and the said Pappammal on receipt of a lump sum consideration of Rs. 6,00,000/-, executed a Release Deed dated 25.07.2011 registered as Document No. 6888 of 2011 in the office of the District Registrar, Tiruppur relinquishing her life interests in that property in favour of the Fourth and Fifth Respondents. An equitable mortgage a deposit of title-deeds was then created in favour of the Petitioner, which is a Bank, by the Fourth and Fifth Respondents as security for the credit facilities of Rs. 32,50,00,000/- availed by the Third Respondent from it has reflected the Memorandum of Deposit of Title-Deeds dated 25.04.2012 executed by them, which has been registered as Document No. 3492 of 2012 in the office of the District Registrar, Tiruppur. 3.As there was default in the repayment of the borrowing made by the Third Respondent from the Petitioner, proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, to enforce the security interest in the property belonging to the Fourth and Fifth Respondents was initiated, and sale in public auction of the secured asset was proposed to be conducted on 24.02.2023, but was adjourned as there was no bidders as on that date. The suit in O.S. No. 165 of 2020 before the Principal Sub-Court, Tiruppur filed by the Second Respondent claiming rights to the said property was struck off from its file by order dated 05.06.2023 on an 3/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023application to reject the plaint filed by the Petitioner. The Second Respondent had also made a representation dated 23.08.2021 before the Revenue Divisional Officer, Tiruppur for treating the Release Deed dated 25.07.2011 registered as Document No. 6888 of 2011 in the office of the District Registrar, Tiruppur executed by her in favour of the Fourth and Fifth Respondents as void invoking Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act' for short), which was dismissed by order dated 29.10.2021 and had attained finality. 4.While the matter stood as narrated supra, the Second Respondent had made another application dated 07.03.2023 for treating the Release Deed dated 25.07.2011 registered as Document No. 6888 of 2011 in the office of the District Registrar, Tiruppur executed by her in favour of the Fourth and Fifth Respondents as void in terms of Section 23 of the Act. However, according to the Petitioner without taking note of the earlier rejection of the similar representation and without affording any opportunity of the Petitioner, the First Respondent by Proceedings in Na. Ka. No. 1348/2023/E3 dated 18.04.2023 has held as follows:-4/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023“kDjhuu; jdJ kfd; ghyRg;gpukzpad; vdgtupd; bgha;ahd thf;FWjpia ek;gp jdJ ngud;fs; Kuspjud; kw;Wk; tpˆDgpurhj; vd;gtuJ bgau;fspd; $Ptdhk; ghj;jpa tpLjiy Mtzk; vGjpf;bfhLj;Js;sjhft[k;. nkw;fz;l Mtzj;jpy; vGjpf;bfhLj;jJ nghy; U:gha; 6.00.000-?j;ij jdf;F bfhLf;ftpy;iy vd;Wk;. jhd; jw;nghJ jdJ cwtpdu; tPl;oy; trpj;J tUtjhft[k; jd;id jdJ kfDk; jdJ ngud;fSk; guhkupf;ftpy;iy vd;Wk; jd;id guhkupf;f jtwpa jdJ kfd; ghyRg;gpukzpad; kfd;fshd Kuspjud; kw;Wk; tpˆDgpurhj; vd;gtUf;F vGjpf;bfhLf;fg;gl;l jpUg;g{u; khtl;lg;gjpthsu; mYtyf Mtz vz; 6888/2011?I uj;J bra;J jUkhW nfl;Lf;bfhz;Ls;shu;/vjpu;kDjhuu;fs; nkw;fz;l Mtzj;jpy; vGjpf;bfhLj;jJ nghy; kDjhuu; ghg;gk;khs; vd;gtUf;F U:gha; 6.00.000-? j;ij bfhLf;ftpy;iy vd;Wk; ghg;gk;khspd; kUkfSk; ghyRg;gpuzpad; kidtpa[k; kw;Wk; $Ptdhk;ghj;jpatpLjiy bgw;Wf;bfhz;l Kuspjud; kw;Wk; tpˆDgpurhj; Mfpnahupd; jhahUkhd ,e;Juhzp vd;gtu; kDjhuu; ghg;gk;khs; vd;gtUld; mof;fo rz;il rr;rut[fspy; <LgLtjhft[k;. mtu;fs; ,Utiua[k; jh';fs; 5/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023rkhjhdk; ,Jtiu bra;aKoatpy;iy vd;Wk; Mifahy; kDjhuuhd ghg;gk;khs; vd;gtiu j';fshy; ftdpf;fKoatpy;iy vd;W vjpu;kDjhuu;fs; xg;gjy; thf;FK:yk; mspj;Js;sdu;/ fpuhk epu;thf mYtyu; mwpf;ifapy; nkw;go kDjhuu; ghg;gk;khs; vd;gtiu vjpu;kDjhuu;fshd ghyRg;gpukzpad; kw;Wk; mtuJ kfd;fs; Kuspjud; kw;Wk; tpˆDgpurhj; Mfpnahu;fs; kDjhuupd; mwpahik cly;epiy tnahjpfk; Mfpatw;iw gad;gLj;jp tw;g[Wj;jp $Ptdhk;r ghj;jpa tpLjiyg;gj;jpuk; vGjpg;bgw;Wf; bfhz;ljhfnt bjupatUtjhf mwpf;if rku;g;gpj;Js;shu;/,e;neu;tpy; bgw;nwhu;. Kjpnahu; guhkupg;g[ kw;Wk; ey;thH;t[ rl;lk; 2007?d; gpupt[ 23?d;go K:j;j Fokf;fs; xUtupd; brhj;J bfhilahf my;yJ mJ nghd;w tifapnyh xUtUf;F khw;wg;gl;lhy; mt;thW mr;brhj;jpid bgw;wtu; me;j K:j;j Fokf;fSf;F cupa cjtpfisa[k; kw;Wk; cly;uPjpahf ntz;oa njitfisa[k; bra;a flikg;gl;ltu; Mthu; vd;Wk; mt;thW bra;;a jtwpdhy; me;j brhj;J nkhroahf bgwg;gl;ljhf fUjg;gLk; vdt[k; me;j brhj;J cupikkhw;wj;ij bra;ahjbjd;W mwptpf;fyhk; vdt[k; 6/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023bjuptpf;fg;gl;Ls;sJ/” The said order is assailed by the Petitioner in this Writ Petition. 5.The narration of sequence of events supra leading to the filing of this Writ Petition would convincingly establish that the impugned proceedings is evidently a collusive endeavour of the Second to Fourth Respondents to defeat the legitimate rights of the Petitioner to enforce its mortgage rights over the property, which cannot be countenanced.6.It remains unexplained by the First Respondent has to how he has entertained another application dated 07.03.2023 under Section 23 of the Act and granted relief by the impugned proceedings for the asking despite knowledge of the dismissal of a similar application dated 23.08.2021 made by the Second Respondent against the Fourth and Fifth Respondents earlier. In this context, reference must be made to the law relating to finality of litigation, as deduced from various binding judicial decisions, which has been summarized below:-(a) The doctrine of finality of litigation is founded upon two age old salutary principles of public policy, viz., interest reipublicae ut sit finis litium which signifies that it is in the interest of the State that there should be an 7/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023end to litigation, and the other principle, viz., nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa conveys that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities or by adopting a procedure prescribed by law. The other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice. In the absence of such principle, great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a resourceful and malicious litigant may succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The universally acclaimed rule of res judicata has been evolved to prevent such anarchy. (See M.Nagabhushana –vs- State of Karnataka [(2011) 3 SCC 408] and Union of India –vs- Major S.P.Sharma [(2014) 6 SCC 351]).(b) The rule of res judicata is common to all civilized system of 8/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should forever set the controversy at rest. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties. Any proceeding which has been initiated in breach of the rule of res judicata is prima facie a proceeding which has been initiated in abuse of the process of Court. (See M.Nagabhushana –vs- State of Karnataka [(2011) 3 SCC 408] and Union of India –vs- Major S.P.Sharma [(2014) 6 SCC 351]).(c) If a litigant has chosen to put his case in one way, he cannot thereafter bring the same transaction before the court, put his case in another way and say that he is relying on a new cause of action. The adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject-9/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. It also does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned. Such consequence follows both to an order from which an appeal lies but has not been preferred, as well as to an order from which no appeal is provided. In a country governed by the Rule of Law, finality of judgment is absolutely imperative to which great sanctity is attached and it is not permissible for the parties to re-open the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far reaching adverse affect on the administration of justice. (See Ambika Prasad Mishra –vs- State of Uttar Pradesh [(1980) 3 SCC 719], Direct Recruit Class II Engg. Officers' Assn. –vs- State of Maharashtra [(1990) 2 SCC 715], M.Nagabhushana –vs- State of Karnataka [(2011) 3 SCC 408] and Union of India –vs- Major S.P.Sharma [(2014) 6 SCC 351]).(d) It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be 10/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023barred as res judicata, but if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of court. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. (See K.K.Modi –vs- K.N.Modi [(1998) 3 SCC 573]).Applying the aforesaid legal principles to the facts of the case on hand, there cannot be any iota of doubt that the entire conduct of the Second to Fifth Respondents amounts to re-litigation, which cannot be countenanced in law. Further, when the Petitioner has advanced a huge amount of Rs. 32,50,00,000/- to the Third Respondent and the repayment of which has been personally guaranteed by the Fourth and Fifth Respondents, it becomes apparent that it is only with the malafide intention to defraud the Petitioner and defeat its rights to effectively recover its dues by enforcing the mortgaged security that the Second to Fifth Respondents have indulged in judicial adventurism by engineering this vexatious litigation abusing the legal process. In that view of the matter, the impugned Proceedings Na.Ka.No.1348/2023/E3 dated 18.04.2023 passed by the First Respondent, which is totally vitiated, stands set aside. In the result, the Writ Petition is ordered on the aforesaid terms. 11/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023Consequently, the connected Miscellaneous Petition is closed. The Second to Fifth Respondents shall jointly and severally pay a sum of Rs. 50,000/- towards exemplary costs by way of Demand Draft in favour of the Tamil Nadu Legal Services Authorities, within a period of 30 days from the date of receipt of a copy of this order under written acknowledgment and file report of compliance before the Registrar (Judicial) of this Court, failing which proceedings to recover the said amount as arrears of land revenue shall follow in accordance with law. 26.02.2024Index: Yes/NoNCC: Yes/NoNote: (i) Issue order copy by 22.05.2024.(ii) If report of compliance is not filed, the matter shall be listed before this Court. gsaTo The Revenue Sub-Divisional Officer cum Sub-Collector,Tirupur,Tamil Nadu.Copy toThe Registrar (Judicial),Madras High Court,Chennai – 600 104.12/13 https://www.mhc.tn.gov.in/judis W.P. No. 33020 of 2023P.D. AUDIKESAVALU, J.gsaW.P. No. 33020 of 202326.02.202413/13