to repay a sum of Rs.1 v. in HML0052 and 1/68 https://www.mhc.tn.gov.in/judis Comp.A.No.5

Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022later closed in view of the order passed in C.A.No.97 of 2008.12. The Trial in O.S.No.6891 of 2010 however commenced before the 1st Additional City Civil Court, Chennai without taking note of order dated 17.04.2006 in C.P.No.230 of 2004 ordering winding up of the said company. Documents were also marked on behalf of the Borrower as the plaintiff in the above suit in O.S.No.6891 of 2010 [Formerly C.S.No.916 of 2000] on 23.11.2010 before the 1st Additional City Civil Court, Chennai.13. On behalf of the Borrower, the Borrower himself tendered evidence as P.W.1 and Ex.A1 to Ex.A15 were marked.14. An ex-parte decree was also passed by the 1st Additional City Civil Court, Chennai on 23.11.2010, unaware of the fact that the said company was earlier ordered to be wound up on 17.04.2006 in C.P.No.203 of 2004 to C.P.No.230 of 2004. The Borrower suppressed the fact that the Borrower had earlier filed C.A.No.97 of 2008 and was pending orders.6/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202215. After the said Company was ordered to be wound up on 17.04.2006, Statement of Affairs was filed by the former Director of the Company under Liquidation. It is at this stage, the Office of the Official Liquidator realized that as per the records maintained by the said Company under Liquidation, the Borrower was still in arrears of the amounts under various Loans advanced to the Borrower by it.16. Thus, Comp.A.No.1515 of 2007 was filed by the Office of the Official Liquidator before this Court to direct the Borrower, [the applicant in C.A.No.516 of 2011] to pay a sum of Rs.1,40,54,738.50/- after adjusting the amounts paid by the Borrower together with interest at 24% per annum from 01.01.2000 as detailed below:-Table-IIAmount due as on 31.12.1999 Calculated by the Official Liquidator’s office:- HML No.52 in (Rs.)253 in (Rs.)Total Amount in (Rs.)Principal Amount9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* Total49,75,00050,00,00099,75,000Principal Amount paid25,13,402-25,13,402Principal Amount due24,61,59850,00,00074,61,5987/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Interest due15,75,41628,00,00043,75,416Penal Interest due7,18,117.9013,55,704.6020,73,822.50Interest Tax due49,51294,4451,43,957Total Amount due48,04,633.9092,50,149.601,40,54,783 Interest at *22% Interest at #24% HML: House Mortgage Loan17. Comp.A.No.1515 of 2007 filed by the Official Liquidator was however closed vide order dated 20.06.2011 by this Court, since O.S.No.6891 of 2010 [Formerly C.S.No.916 of 2000] had already been decreed Ex-Parte on 23.11.2010, with a liberty to the Office of the Official Liquidator to file appropriate application and in the event of it succeeding in the application filed for setting aside the Ex-Parte decree dated 23.11.2010 passed in the above suit by the 1st Additional City Civil Court, Chennai and was allowed.18. Thus, the Office of the Official Liquidator filed Comp.A.No.396 of 2011 to set aside the Ex-Parte Decree dated 23.11.2010 passed by the 1st Additional City Civil Court, Chennai in O.S.No.6891 of 2010 [Formerly C.S.No.916 of 2000]. This Court allowed Comp.A.No.396 of 8/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 20222011 on 15.07.2011 and thus set aside the Ex-Parte Judgment and Decree dated 23.11.2010 passed by the 1st Additional City Civil Court, Chennai in O.S.No.6891 of 2010 (Formerly C.S.No.916 of 2000) by the 1st Additional City Civil Court, Chennai. Thus, O.S.No.6891 of 2010 (Formerly C.S.No.916 of 2000) was restored to the file and renumbered as C.A.No.516 of 2011 which is now under consideration.19. After the Judgment and Decree passed on 23.11.2010 by the 1st Additional City Civil Court, Chennai was set aside wherein Ex.A1 to Ex.A15 were marked on 19.08.2013, the Borrower once again deposed evidence before the learned Master’s Court on various dates starting from 28.03.2014.20. On behalf of the company under liquidation, Mr.J.Perumal, Upper Division Clerk from the Office of the Official Liquidator tendered evidence as R.W.1 and Ex.R1 to Ex.R9 were marked through him. This Court had thereafter marked Ex.C1 to Ex.C3. The details of these Exhibits marked on behalf of Borrower and the Office of the Office Liquidator for the company under liquidation and by this Court are given in chronological order:- 9/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Table-IIIExhibitsDateDescriptionA1/R722.08.1990Certified copy/ Photo copy of Simple Mortgage for Rs.9,75,000/- executed by the Borrower in favour of the company of Schedule ‘A’ propertyR8 Series23.08.199001.02.1993Photocopies of the promissory notes executed by the Borrowers in favour of company for Rs.9,75,000/-Rs.15,00,000/-R6 Series31.01.1993Promissory note dated 31.01.1993 01.02.1993Photo copy of the Memorandum of Deposit of title deeds of Schedule ‘A’ property executed by the Borrowers in favour of company on 01.02.1993R128.02.1993* Photocopy of the application for House Mortgage Loan for Rs.50,00,000/- submitted by the Borrower to the company of Schedule ‘B’ property.A2/R516.03.1993Certified copy / Photo copy of Simple mortgage for Rs.9,00,000/- of Shedule ‘B’ propertyA3 Series Photo copy of Certified copies of the receipts issued by the Company for payments made to the Royapettah Benefit Fund LimitedR2 Series18.03.1993 22.03.1993Photocopies of the promissory notes executed by the Borrowers in favour of companyRs.9,00,000/-Rs.41,00,000/-R320.03.1993Photo copies of the Promissory Note executed by the Borrower in company for Rs.41,00,000/-R421.03.1993Photo copies of the Deposit of Title Deeds for Rs.41,00,000/- of Schedule ‘B’ propertyR9 Series13.05.1993Promissory Note for Rs.25,00,000/-14.05.1993 Photo copy of Deposit of Title Deeds of Schedule A & B property executed by the Borrower in favour of the Company A1030.05.1994Certified copy of the Banker’s Cheque bearing No.065637 issued by the Canara BankC110.02.2000Letter issued by the Company to the Borrower demanding Rs.39,96,359/- in respect of HML.No.52C210.02.2000Letter issued by the Company to the Borrower demanding Rs.50,00,000/- in respect of HML.No.253A416.02.2000Certified copy of Letter of Borrower in response to Ex.C1 letter dated 10.02.2000A5 Series06.03.2000Certified copy of Letters of the Borrower in response to Ex.C2 letter dated 10.02.2000 and another letter dated 01.03.200010/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022A607.05.2000Certified copy of the paper publication in one issue of Tamil Daily “Dina Malar”A707.05.2000Certified copy of the paper publication in one issue of English Daily “Hindu”A808.05.2000Certified Copy of the Legal Notice on behalf of the BorrowerA913.05.2000Certify copy of the Reply to the Legal Notice dated 08.05.2000.A1510.05.2000Certified copy of the petition filed in I.A.No.7719/2000 in O.S.No.2942/2000A1107.06.2000Certified copy of the counter affidavit filed by the respondent in IA.No.7719/2000 in O.S.No.2942 of 2000 on the IV Assistant City Civil Court, ChennaiA1223.08.1990-28.12.1993 & 01.01.1994-22.08.1998Statement of Accounts from the book of the plaintiff in respect of the loan account No.HML 52 of the respondentA1309.05.200011.05.2000Series (2 Nos) are the certified copies of encumbrance certificates of the mortgaged property in loan account No.HML 52A1414.10.2000Certified copy of the valuation report filed in O.S.No.2942 of 2000 on the file of the IV Assistant City Civil Court, ChennaiC329.06.2009Statement of Accounts and Interest Working Statement filed by the borrower in C.A.No.1515 of 2007*Application issued on 23.02.1993.21. Pursuant to the aforesaid Order dated 15.07.2011 in Comp.A.No.396 of 2011, the Office of the Official Liquidator has now filed C.A.No.431 of 2022 on 27.10.2022. C.A.No.431 of 2022 has been filed to take the report filed by the Office of the Official Liquidator and to direct the Borrower [the applicant in C.A.No.516 of 201 / respondent in Comp.A.No.431 of 2022] to pay a sum of Rs.1,40,54,783/- together with interest at the rate of 24% per annum in respect of the loans availed by the 11/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Borrower (or) to permit the Official Liquidator to realize the assets given as security by the Borrower and to incur the expenses towards this application from and out of the funds of the company in liquidation.22. The case of the Borrower in C.A.No.516 of 2011 is that the Borrower had taken two loans from the said Company under Liquidation for a sum of Rs.9,75,000/- on 22.08.1990 vide HML No.52 and a further loan for sum of Rs.9,00,000/- on 16.03.1993 vide HML No.253. As a collateral security, a registered simple mortgage of Schedule ‘A’ and Schedule ‘B’ Properties were created in favour of the aforesaid Company under Liquidation.23. The Borrower admits that the Borrower had taken further loan for a sum of Rs.40,00,000/- (Rs.15,00,000 + Rs.25,00,000] during 1994-1995 against which undated Promissory Notes were given as Collateral Security which have now been filled up the dates as 01.02.1993 and 13.05.1993 and marked as Ex.R8 Promissory Note for Rs.15,00,000/- and Ex. R9 Promissory Note for Rs.25,00,000/-.12/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202224. According to the Borrower, as against the HML No.52 for Rs.9,75,000/-, the Borrower has paid a total sum of Rs.38,53,516/- between 23.08.1990 and 28.12.1993 as detailed below and that the aforesaid loan together with interest payable to the said Company stood discharged on 28.12.1993. Table-IVDateReceipt No.Amount23.08.1990734618,037.5025.09.19901243218,037.5025.10.19901732318,037.5024.11.19902087718,037.5026.12.19902737918,037.5025.01.19913381118,037.5025.02.19913746518,037.5024.03.19913755218,037.5024.04.19913831018,037.5025.05.1991487318,037.5024.061991L 1790518,037.5025.07.1991L 2508418,037.5026.08.1991L 3046318,037.5025.09.1991L 3552618,037.5024.10.1991L 0646418,037.5024.11.1991J 0904518,037.5025.11.1991J 091214,387.5024.12.1991J 1355518,037.5025.01.1992J 1685719,500.0025.02.1992J 2184019,500.0025.03.1992J 2590619,500.0025.04.1992J 0260119,500.0024.05.1992J 0660519,500.0025.05.1992J 068311,00,000.0013/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202225.05.1992J 0683275,000.0025.06.1992J 1072419,500.0027.07.1992J 152773,00,000.0027.07.1992J 1532815,930.0025.08.1992J 189839,930.0024.09.1992J 233539,930.0027.10.1992J 276109,930.0026.11.1992J 321589,930.0031.12.1992J 374809,930.0023.01.1993J 402909,930.0001.02.1993J 4232330,203.0001.03.1993J 4665730,000.0002.03.1993J 468899,930.0018.03.1993J 489939,000.0022.03.1993J 4942241,000.0023.03.1993J 496535,00,000.0025.03.1993J 498559,930.0001.04.1993J 0000830,000.0022.04.1993J 0248682,000.0022.04.1993J 0248718,000.0002.05.1993J 0410030,000.0017.05.1993J 0600625,000.0001.06.1993J 0853130,000.0016.06.1993J 2577450,000.0017.06.1993J 1059950,000.0001.07.1993J 1368530,000.0017.07.1993J 1564350,000.0022.07.1993J 1640382,000.0022.07.1993J 1640318,000.0001.08.1993J 1863430,000.0017.08.1993J 2088150,000.0019.08.1993J 2270418,000.0019.08.1993J 2270582,000.0001.09.1993J 2334830,000.0025.09.1993J 2685882,000.0001.10.1993J 2817730,000.0014/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202217.10.1993J 3034450,000.0021.10.1993J 3104382,000.0021.10.1993J 3104418,000.0001.11.1993J 3254330,000.0017.11.1993J 3428750,000.0001.12.1993J 3680130,000.0001.12.1993J 369875,00,000.0021.12.1993J 3955649,918.0028.12.1993J 4034818,000.0028.12.1993J 4034982,000.00Total Rs.38,53,516.00/- 25. This is also part of Ex.A3 Series receipts filed by the Borrower. However, in Ex.A8 Notice dated 08.05.2000, the Borrower has stated that he has paid a sum of Rs.22,84,588/- only. It is stated by the learned Senior Counsel for Borrower that as against HML No.253 for Rs.9,00,000/-, the Borrower has paid amounts and discharged the liability completely. It is submitted that despite the same, the Office of the Official Liquidator has demanded amounts from the Borrower and thus refused to return the Documents and the excess paid.26. Learned Senior Counsel for the Borrower would further submit that the Borrower had taken the further loan for a sum of Rs. 15,00,000/- on 31.01.1993 and loan for a sum of Rs.25,00,000/- on 13.05.1993 and had 15/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022created an equitable mortgage and executed Ex.R6 Memorandum of Deposit of Title Deed dated 01.02.1993 of Schedule A property and Ex.R9 Memorandum of Deposit of Title Deed dated 14.05.1993 of both Schedule A & B properties in favour of the Company under Liquidation when it was a going concern.27. It is submitted that as against the aforesaid loan of Rs.9,00,000/- under HML No.253 and Rs.40,00,000/- [Rs. 15,00,000 + Rs.25,00,000] against Promissory Notes, the Borrower has re-paid a sum of Rs.86,36,812/- on various dates between the period of 02.01.1994 to 22.08.1998. In this regard, a reliance was placed on Ex.A3, Ex.A4 and Ex.A8 which are detailed as under:-Table-VExhibitsDateDescriptionA3 Series Photo copy of Certified copies of the receipts issued by the company for payments made to the Royapettah Benefit Fund LimitedA416.02.2000Certified copy of Letter of Borrower in response to Ex.C1 letter dated 10.02.2000A808.05.2000Certified copy of the Legal Notice on behalf of the Borrower28. Thus, according to the Borrower, the third loan for Rs.40,00,000/-16/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022[15,00,000 +25,00,000] also stood discharged on 22.08.1998. Thus, it is submitted that the Borrower has in all paid a sum of Rs.1,24,90,328/- [Rs.86,36,812 + Rs.38,53,516] against the principal sum of Rs.58,75,000/- [Rs.9,75,000 +Rs.9,00,000 + Rs.15,00,000 + Rs.25,00,000] which consists of Rs.66,15,328/- [Rs.1,24,90,328 – Rs.58,75,000] towards interest.29. It is submitted that the receipt for the aforesaid sum of Rs.1,24,90,328/- is covered by part of Ex.A3 Series receipts, and that there is no dispute regarding payment, although the respondent i.e., company under liquidation would contend that these loans have not been fully discharged. Amount due under Loan A/c as on December 1999 according to the Borrower and payments made are as under:-Table-VIS.NoLoan Number(a)Principal(b)Interest(c)Amount due(d)Amount paid(e)1First Loan 9,75,000 6,43,500 16,18,50038,53,5162Second Loan 9,00,000 4,32,000 13,32,0003Third Loan 40,00,000* 48,00,000 88,00,00086,36,812 Grand Total 58,75,000 58,75,5001,17,50,5001,24,90,328Amount paid in excess (e-d) Rs.7,39,828/-[* Rs.15,00,000/- + Rs.25,00,000]17/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202230. Hence the Borrower (plaintiff) claims to have paid a sum of Rs.7,39,828/- [Rs. 1,24,90,328 - Rs. 1,17,50,500] in excess. That apart, it is submitted that a sum of Rs.5,00,000/- was paid by the Borrower pursuant to order dated 05.06.2000 in I.A.No.7719 of 2000 in O.S.No.2942 of 2000 to defer the sale of Schedule A Property. 31. O.S.No.2942 of 2000 was filed by the Borrower against the company for rendition of accounts. Therefore, it is submitted that the Company under Liquidation owes a sum of Rs.12,39,823/- [Rs.7,39,828 + Rs.5,00,000] to the Borrower. Therefore, the Borrower was not only entitled for Redemption of Mortgage of Schedule ‘A’ and ‘B’ properties but also entitled for refund of Rs.12,39,828/-.32. The learned Senior Counsel for the Borrower would submit that there are no documents to substantiate that the Borrower has borrowed amounts over and above Rs.58,75,000/- [Rs.9,75,000 + Rs.9,00,000 + Rs.40,00,000 (Rs.15,00,000 + Rs.25,00,000)]. It is submitted that the Promissory Notes that were obtained from the Borrower at the time when 18/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022loans were sanctioned during 1990 and 1993, 1993-1996 for Rs.58,75,000/- [Rs.9,75,000 + Rs.9,00,000 + Rs.40,00,000 (Rs.15,00,000 + Rs.25,00,000)] were filled up to make it seem as if the borrower borrowed a further sum of Rs.41,00,000/- on 20.03.1993.33. It is submitted that there are no records to substantiate that over and above Rs.58,75,000/- any other amounts was borrowed by the Borrower and therefore, the question of entertaining the Comp.A.No.431 of 2022 cannot be countenanced.34. A reference was made to the Written Statement dated 31.08.2001 filed in C.S.No.916 of 2000 by the Company which was later renumbered as O.S.No.6891 of 2010 before the said Company was ordered to be wounded up on 17.04.2006. It is submitted that neither a “Set-Off” “nor a “Counter Claim” was made before the Court while filing the Written Statement dated 31.08.2001 by the said Company under Liquidation before this Court.35. It is submitted that the Company under Liquidation merely prayed for dismissal of the above suit filed by the Borrower. It is submitted that 19/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022there was also no “Counter Claim” for recovery of the amount due under the alleged loan of Rs.41,00,000/- which is said to have been allegedly borrowed by the Borrower.36. That apart, it is submitted that the application filed by the Office of the Official Liquidator in Comp.A.No.1515 of 2007 which relief is once again prayed for in Comp.A.No.431 of 2022 is clearly barred by limitation under Article 62 of the Limitation Act, 1963. It is submitted that at best, such an application could have been filed within 12 years from the date of the cause of action and therefore, the question of entertaining Comp.A.No.431 of 2022 cannot be countenanced as it was hopelessly time-barred.37. The learned Senior Counsel for the applicant would draw attention to the decision of the Hon'ble Division Bench of this Court in the case of Official Liquidator, Radel Services Private Limited Vs. Southern Screws Private Limited [(1988) 63 Comp Cas 749] rendered in the context of Section 458A of the Companies Act, 1956 read with the provisions of the Limitation Act, 1963.20/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202238. The learned Senior Counsel would submit that since the Borrower had discharged the HML No.253 and two Pro-Notes for Rs.40,00,000/-[Rs.15,00,000 + Rs.25,00,000] on 22.08.1998, the suit, if any, ought to been filed within a period of 12 years from the date of cause of action in terms of Article 62 of the Limitation Act, 1963.39. It is submitted that the Company Petition was filed on 07.10.2004 and the company was ordered to be wound up on 17.04.2006 and therefore as per Section 458A of the Companies Act, 1956, only the period between 07.10.2004 to 16.04.2007 alone could be excluded while computing the period of limitation of 12 years under Article 62 of the Limitation Act, 1963. 40. It is therefore submitted that even if the aforesaid period between 07.10.2004 to 16.04.2007 is excluded, the limitation to sue for recovery would have expired on 16.04.2019 by applying the provisions of Section 458A of the Companies Act, 1956 and Article 62 of the Limitation Act, 1963 and therefore, the question of entertaining Comp.A.No.431 of 21/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 20222022 filed on 27.10.2022 cannot be countenanced and hence, prays for dismissal of the application filed by the Official Liquidator in Company Comp.A.No.431 of 2022 and to allow the Company Application No.516 of 2011 filed by the Borrower.41. That apart, a reference is made to the deposition of RW1 [J. Perumal, the Upper Divisional Clerk from the Office of the Official Liquidators, High Court Madras. It is submitted that the said witness during the cross-examination on 22.01.2016 before the learned Masters has confirmed that he was not aware as to whether any document were filed before this Court to show that there was any debt due and existing from the Borrower in the above suit as of on 22.08.1990.42. It is further submitted that the said witness was also unable to confirm as to which of the Promissory Note in Ex.R2, Ex.R3, Ex.R8 and Ex.R9 related to the Simple Mortgage Deed under Ex.R5 photocopy of Simple Mortgage dated 16.03.1993.43. Similarly, it is submitted that the witness did not confirm details 22/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022regarding the disbursal of respective amounts mentioned in the Promissory Notes in Ex.R2, Ex.R3, Ex.R8 and Ex.R9. It is therefore submitted that the application filed by the Borrower in Comp.A.No.516 of 2011 has to be allowed and Comp.A.No.431 of 2022 has to be dismissed.44. The learned Senior Counsel further submits that the written statement that was filed by the company on 31.07.2001 also contains a concocted defence to state that as on 31.01.2001, the Borrower [the applicant in Comp.A.No.516 of 2011] owed a sum of Rs.1,95,92,088/- , to the Company under Liquidation.45. The office of the Official Liquidator has drawn attention to a report dated 25.09.2022 wherein it is stated that the Borrower, [the Applicant in Comp.A.No.516 of 2011 / respondent in Comp.A.No.431 of 2022] had taken the following Loans from the Company under Liquidation as detailed below:-Table-VII Sl.No Date of LoanHML.No.52HML.No.253Total122.8.1990*9,75,000.00 9,75,000.00201.02.9315,00,000.00 15,00,000.00316.03.93# 9,00,000.009,00,000.00420.03.93 41,00,000.0041,00,000.0023/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022517.05.9325,00,000.00 25,00,000.00Total49,75,000.0050,00,000.0099,75,000.00 *Date of registered Simple Mortgage Deed-(23.08.1990- Date of Promissory Note)# Date of registered Simple Mortgage Deed-(18.03.1993- Date of Promissory Note)46. It is further stated that as per the available records, balance to be remitted by the Borrower as on August 2000 in respect of both the loan accounts are as follows:-Table-VIIIS.No.Loan Account NoPrincipal DueInterestTotal1HMLO05224,61,58828,88,195.6553,49,783.652HMLO025350,00,00054,62,461.401,04,62,461.40Grand TotalRs.1,58,12,245.40 47. It is submitted that the claim in Comp.A.No.431 of 2022 (Formerly Comp.A.No.1515 of 2007) is also based on Ex.R3 Promissory Note dated 20.03.1993 for a sum of Rs.41,00,000/- and Ex.R.4 Deposit of Title Deed dated 21.03.1993 as detailed in Annexure C of the aforesaid Report dated 25.09.2022.24/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202248. That apart, the learned Deputy Official Liquidator submits that on account of the rival claims, complaints were also filed before the EOW, Chennai-2 and records were taken by the Officials of EOW, Chennai-2, which included the Original Documents. The learned Official Liquidator therefore submits that directions may be given to EOW, Chennai -2 to hand over the originals to the Office of the Official Liquidator.49. I have considered the Arguments of the respective counsel of both sides. I have perused the plaint of the Borrower, written statement and Report of the Official Liquidator.50. Details of the Promissory Notes and the Simple Mortgages and Equitable Mortgage by deposit of Title Deeds of Schedule A and Scheduled B properties are as under:-Table-XIXSl.No Date of LoanHML.No.52HML.No.253Ex. of Promissory Note Ex. of Deed122.08.19909,75,000.00 R8 - Demand Promissory Note dated 23.08.1990 A1/R7- Registered Simple Mortgage deed dated 22.8.1990 of ‘A’ Schedule property 231.01.1993 / 15,00,000.00 R6-Demand R6-Memorandum of 25/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202201.02.1993* Promissory Note dated 31.01.1993 deposit of Title Deeds of ‘A’ Schedule Property dated 01.02.1993316.03.1993 9,00,000.00R2- Demand Promissory Note dated 18.03.1993 A2/R5- Registered Simple Mortgage deed dated 16.03.93of ‘B’ Schedule Property420.03.1993# /22.03.1993 41,00,000.00R3- Demand Promissory Note dated 20.03.1993R4- Memorandum of deposit of Title Deeds of ‘B’ Schedule property dated 21.03.1993517.05.199325,00,000.00 R9-Demand Promissory Note dated 13.05.1993 R9-Memorandum of deposit of Title Deeds of ‘A’ and ‘B’ Schedule property dated 14.05.1993Total49,75,000.0050,00,000.0099,75,000 * Ex.R8 Series Demand Promissory Note dated 01.02.1993 # Ex.R2 Series Demand Promissory Note dated 22.03.1993 51. The Office of the Official Liquidator has filed C.A.No.431 of 2022 on 20.07.2022 for the above mentioned relief to direct the Borrower to repay a sum of Rs.1,40,54,783/- together with interest at 24%.52. The records available before this Court also reveals that earlier also a similar application was filed by the Office of the Official Liquidator in C.A.No.1515 of 2007 sometime in 2007.26/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202253. C.A.No.1515 of 2007 was however dismissed with liberty to file a fresh application in case of ex-parte decree dated 23.11.2010 passed by the 1st Additional City Civil Court, Chennai in O.S.No.6891 of 2010 was set aside. Relevant portion of the Order dated 20.06.2011 of this Court dismissing C.A.No.1515 of 2007 reads as under:-“4.In view of the decree being in favour of the respondent which is not set aside or stayed by any Court, this claim applications is not maintainable being premature. Consequently, this application is dismissed. The claim petition is therefore, dismissed as premature at this stage. However, it shall be open to the learned Official Liquidator, to file an appropriate application in the event of success of application for setting aside the ex-parte decree, or the final decision in suit for redemption, if so required, as per decision of the Civil Suit.54. Comp.A.No.516 of 2011 is a continuation of the suit filed by the Borrower in C.S.No.916 of 2000 before this Court which was later transferred to the 1st Additional City Civil Court, Chennai pursuant to reorganization of the pecuniary jurisdiction of the Courts and renumbered as O.S.No.6891 of 2010. Comp.A.No.431 of 2022 is a continuation of the Comp.A.No.1515 of 2007 which was closed with a liberty on 27/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202220.06.2011.55. By an order dated 03.01.2011 in C.A.No.97 of 2008, this Court had ordered O.S.No.6891 of 2010 be tried along with C.P.No.230 of 2004. However, the 1st Additional City Civil Court, Chennai had already decreed O.S.No.6891 of 2010 (Formerly C.S.No.916 of 2000) on 23.11.2010.56. Under these circumstances, C.A.No.396 of 2011 was filed before this Court to set aside the ex-parte decree dated 23.11.2010 in O.S.No.6891 of 2021 which was later allowed on 15.07.2011.57. It is under these circumstances, the Trial in C.A.No.516 of 2011 and C.P.No.230 of 2004 was recorded by the learned Master between 12.08.2013 and 22.01.2016, after Ex-parte decree passed by the 1st Additional City Civil Court, Chennai dated 23.11.2010 in O.S.No.6891 of 2010 was set aside on 15.07.2011 in Comp.A.No.396 of 2011.28/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202258. The Borrower had earlier filed O.S.No.2942 of 2000 before the IV Assistant City Civil Court, Chennai. The Borrower has marked a counter filed in O.A.No.7719 of 2000 in O.S.No.2942 of 2000 marked as Ex.A11 in the present proceeding to which I shall refer later.59. The record reveals that the IV Assistant City Civil Court, Chennai had stayed the auction of the Schedule ‘A’ Property vide its order dated 07.06.2000 in view of the undertaking given by the Borrower to deposit Rs.5,00,000/- in I.A.No.7719 of 2000 in O.S.No.2942 of 2000 before the IV Assistant City Civil Court, Chennai.60. Apart from the documents which were marked on behalf of the Borrower and Official Liquidator’s Office for the company under liquidation, there are also two other documents that are available in the Court bundle. Both are dated 10.02.2000 and in respect of the amounts that were allegedly due from the Borrower to the Company under Liquidation. Copy of these documents were not marked as Exhibits by the Borrower.29/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202261. Since these documents are available in typed set of documents filed by the Office of the Official Liquidator along with C.A.No.1515 of 2007 which was later dismissed on 20.06.2011 with liberty to file a fresh application in case the ex-parte decree dated 23.11.2010 in O.S.No.6891 of 2010 set aside. These documents are marked as Ex.C1 and Ex.C2. Ex.C1 and Ex.C2 are letters both dated 10.02.2000 of the Company under Liquidation addressed to the Borrower. Both these letters have also been replied by the Borrower vide Ex.A4 Letter dated 16.02.2000 and Ex.A5 Letter dated 16.02.2000.62. Therefore, these two letters dated 10.02.2000 of the Company under Liquidation addressed to the Borrower have been marked as Ex.C1 and Ex.C2 as there is no point in calling for the Office of the Official Liquidator to mark these documents by referring the case back to the Learned Master’s Court for marking them as exhibits.63. Likewise, the Statement of Accounts and Interest Working Statements which was filed by the Borrower in C.A.No.1515 of 2007 on 30/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202229.06.2009 is marked as Ex.C3, to which also I shall refer to later.64. Ex.C1 and Ex.C2 letters both dated 10.02.2000 were addressed to the Borrower by the Company under Liquidation. Ex.C1 and Ex.C2 dated 10.02.2000 read identically. They are in respect of HML No.52 and HML.No.253. Their texts are reproduced below for the sake of clarity:-Table-IXEx.C1 dated 10.02.2000Ex.C2 dated 10.02.2000 Sub: House Mortgage Loan No.52 for Rs.39,96,359/- On perusal of our records, it is seen that you had borrowed from RBF Nidhi Limited a sum of Rs.39,96,359/- on 23.08.90. The above loan has become due for repayment on 23.08.92. Please note that the principal outstanding is Rs.24,61,588/- and Interest Outstanding is Rs.23,89,621/- as on 01.01.2000. Please note that the Hon'ble Company Law Board' has superceded the existing Board and have appointed a new Board, who have decided to take immediate steps to recover the amounts due to RBF Nidhi Limited. Sub: House Mortgage Loan No.253 for Rs.50,00,000/- On perusal of our records, it is seen that you had borrowed from RBF Nidhi Limited a sum of Rs.50,00,000/-on 18.03.93. The above loan has become due for repayment on 18.03.95. Please note that the principal outstanding is Rs.50,00,000/- and Interest Outstanding is Rs.43,40,820/- as on 31.01.2000. Please note that the Hon'ble Company Law Board' has superceded the existing Board and have appointed a new Board, who have decided to take immediate steps to recover the amounts due to RBF Nidhi Limited. 31/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Accordingly, you are requested to repay the aforesaid amount within Seven days on receipt of this letter. If there is any problem in making the repayment. in seven days, you may kindly meet Mr. A.R Rao, Chairman or the undersigned immediately along with this letter.Accordingly, you are requested to repay the aforesaid amount within Seven days on receipt of this letter. If there is any problem in making the repayment. in seven days, you may kindly meet Mr.A.R Rao, Chairman or the undersigned immediately along with this letter. 65. These letters were signed by K.J.Pappachan, Director of Company under liquidation after the Board of the Company under liquidation was superseded.66. These two letters have been replied by the Borrower vide Ex.A4 and Ex.A5 Services dated 16.02.2000. Ex.A4 dated 16.02.2000 is in response to Ex.C2 letter dated 10.02.2000 issued for HML.253. Ex.A4 dated 16.02.2000 reads as under:-Table-XRespected Sir,Sub: House Mortgage LoanNo.253.With reference to the above, I am in receipt of your letter dated 10.02.2000 and noted the contents.32/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022 I would like to submit the following facts for your kind perusal and consideration. . I mortgaged my property for Rupees 9 Lakhs which amounts have been paid, I have also availed a mortgage loan on HML No.52 by mortgaging other property for Rupees 9 lakhs. I have already repaid the above HML loans for Rupees 30,60,000/- in lumpsum and also paid Rupees 75 lakhs towards the above HML No.253 and HML No.52. I am enclosing a statement of payments as per our available records for our verification.Having paid so much amount and also due to economic recession on real estate business, we could not make further payments. Even though we have obtained receipts for our payments, we do not know on which account our payments nave been credited. Till 1995 we had been making payments regularly. In this connection we request your goodselves to verify your accounts. Since there is a tough economic recession in the real estate business we are struggling for our survival. Hence we are prepared to accept my liability within the permissible limit payable by the proposal after discussing the facts. 67. Thus, even according to Borrower as per Ex.A4 letter dated 10.02.2000 for two loans for Rs.9,00,000/- and Rs.9,75,000/-, the Borrower has paid a sum of Rs.1,05,60,000/- [Rs.30,60,000 + Rs.75,00,000].68. Ex.A5 has two letters dated 06.03.2000 in response to Ex.C1 dated 10.02.2000 and another letter dated 01.03.2000 of the Company under Liquidation. They reads as under:-33/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Table-XIEx.A5 letter dated 06.03.2000Ex.A5 letter dated 06.03.2000Respected Sir, SUB : Loan Account No. 253 I am in receipt of your notice dated 10.02.2000. I do not admit the amount mentioned in your notice as the outstanding in my account. The notice is without particulars.Respected Sir, SUB : Loan Account No. 52 I am in receipt of your notice dated 01.03.2000. I do not admit the amount mentioned in your notice as the outstanding in my account. The notice is without particulars.69. Copy of letter dated 01.03.2000 of the Company has been neither filed by the Borrower or the Office of the Official Liquidator. The case of the Borrower is that the Borrower had taken two loans earlier for Rs.9,75,000/- and Rs.9,00,000/- and had repaid the same and thereafter took a fresh loan for Rs.40,00,000/- during 1993 to 1995. It is the case of the Borrower that however, the promissory notes that were executed by the Borrower for the loans that were taken in the year 1990 to 1993 have been used by the Company under Liquidation to make it seen as if the Borrower had borrowed further amounts of Rs.41,00,000/-.34/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202270. According to the Office of the Official Liquidator, the Borrower has borrowed a total sum of Rs.99,75,000/- as detailed below:-Table-XIHML No.52253Total AmountPrincipal Amount 9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* Total49,75,00050,00,00099,75,000Interest at*22% #24%71. The defence in the Written Statement in C.S.No.916 of 2000 of the Company under Liquidation before it was transferred to the 1st Additional City Civil Court, Chennai is that the Borrower had borrowed a total sum of Rs.99,75,000/- under two Loan Accounts numbered as HML No.52 and HML No.253 respectively.72. As per the written statement and Ex.C1 and Ex.C2 dated 10.02.2000 of the Company under Liquidation, the amount due from the Borrower to the Company under Liquidation in respect of HML No.52 and HML No.253 as on 31.01.2000 are as under:- Table-XII 35/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Sl.No.ExhibitEx.C1 dt.10.02.2000Ex.C2 dated 10.02.2000HML.No.52253Total1 Principal Amount9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* Total49,75,00050,00,00099,75,0002Mortgage Loan AmountRs.39,96,359/- (as on 23.08.1990)Rs.50,00,000/-(as on 18.03.1993)89,96,3593Principal OutstandingRs.24,61,588/-Rs.50,00,000/-74,61,5884Interest OutstandingRs.23,89,621/-Rs.43,40,820/-67,30,4414(3+4)Total Outstanding as on 31.01.2000Rs.48,51,209/-Rs.93,40,820/-Rs.1,41,92,029 Interest at *22% Interest at #24%73. Thus, there is no clarity as to how Rs.49,75,000/- in HML.No.52 reduces to Rs.39,96,359/- as per Ex.C1 dated 10.02.2000 of the Company under Liquidation.74. Even according to the Office of the Official Liquidator, the Borrower has together paid a total sum of Rs.1,21,50,467/- in respect of the HML No.52 and HML No.253 as detailed below as is evident from the typed set of documents filed by the Office of the official liquidator along 36/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022with the C.A.No.1515 of 2007 in the year 2007 :-Table-XIIILoan A/C NoHML No.52HML No.253TotalTotal Principal Amount9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* 49,75,00050,00,00099,75,000Principal Paid25,13,412/--25,13,412/-Interest Paid38,07,797/-58,29,267/-96,37,064/-Total63,21,209/-(23.08.1990-16.08.2000)58,29,267/-(18.03.1993-16.08.2000)1,21,50,467/- 75. Whereas, according to the Borrower, the Borrower has repaid a sum of Rs.1,24,90,328/-. Thus, the issue that arises for consideration is whether the Borrower is entitled to redeem the mortgage after accepting the case that the Borrower has paid the amounts due under the respective Loan and whether indeed the borrower had taken a loan for Rs.41,00,000/- as argued by the Company under Liquidation.76. It is not out of place to mention that the C.S.No.916 of 2000 was filed by the Borrower on 21.11.2000 after the Company had issued Ex.C1 and C2 Notices both dated 10.02.2000 which were responded vide Ex.A4 Letter dated 16.02.2000 and Ex.A5 Series Letter dated 06.03.2000.37/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202277. In the Written Statement it is stated that under Loan Account No.52 the Borrower had borrowed initially a sum of Rs.9,75,000/- and thus created A1/R7 registered Simple Mortgage in respect of ‘A’ Schedule Property. It is further stated that the Borrower had subsequently borrowed further a sum of Rs.15,00,000/- and executed Ex.R6 Promissory Note dated 31.01.1993 for Rs.15,00,000/- along with Ex.R6 Memorandum of Deposit of Title Deed dated 01.02.1993 of ‘A’ schedule property in favour of the Company under Liquidation.78. It was further stated that the Borrower took another loan amount again borrowed a sum of Rs.25,00,000/- and executed Ex.R9 Promissory Note dated 13.05.1993 for Rs.25,00,000/- along with Ex.R9 Memorandum of Deposit of Title Deed dated 14.05.1993 of ‘A’ and ‘B’ Schedule Property. These borrowal are subject matter of HML No.52.79. It was further stated that under HML No.253, the Borrower had borrowed further amount of Rs.9,00,000/- and executed A2/R5 registered 38/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Simple Mortgage dated 16.03.1993 in respect of ‘B’ Schedule Property and subsequently borrowed another sum of Rs.41,00,000/- on 20.03.1993 and executed Ex.R4 Memorandum of Deposit of Title Deed dated 21.03.1993 of Schedule B Property. Details of the Loans are given below:-Table-XIV Loan Account No.52 SL.NoDateAmountEx.-ModeInterest122.08.1990 Rs.9,75,000/-A1/R7- Registered Simple Mortgage of ‘A’ Schedule property 22%231.01.1993 01.02.1993Rs.15,00,000/-R6-Demand Promissory Note dated 31.01.1993 24%R6-Memorandum of deposit of Title Deeds of ‘A’ Schedule Property dated 01.02.199324%313.05.1993 14.05.1993 Rs.25,00,000/-R9-Demand Promissory Note dated 13.05.1993 24%R9-Memorandum of deposit of Title Deeds of ‘A’ and ‘B’ Schedule property dated 14.05.199324% Loan Account No.253 416.03.1993 Rs.9,00,000/-A2/R5- Registered Simple Mortgage of ‘B’ Schedule Property24%520.03.1993 21.03.1993 Rs.41,00,000/-R3- Demand Promissory Note dated 20.03.1993 24%R4- Memorandum of deposit of Title Deeds of ‘B’ Schedule Property dated 21.03.1993 24%Total AmountRs.99,75,000/-/-39/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022 80. The defendant Company in its Written Statement stated that as on 31st July, 2001, the amount outstanding towards repayment of HML No.52 stood at Rs.66.26,962/- and the amount outstanding towards HML No.253 stood at Rs.1,29,65,126/- and thus the total amount outstanding was Rs.1,95,92,088/- as detailed below:- Table-XVLoan Account No.52 in (Rs.)253 in (Rs.)Total in (Rs.)The principal amount24,61,588.0050,00,000.0074,61,588.00Interest41, 19,782.0078,75,581.001,19,95,363.00interest, tax 45,592.00895451,35,137Total66,26,962.001,29,65,1261,95,92,088 81. The Borrower has relied on Ex.A11 counter filed in I.A.No.7719 of 2000 in O.S.No.2942 of 2000 before IV Additional City Civil Court to state that only a sum of Rs.53,04,674.85 was due in respect of HML No.52 as on 31.05.2000 and that in respect of the aforesaid loan the Borrower was making payments.82. It is submitted that in Ex.A11 which is a counter filed in I.A.No.7719 of 2000 in O.S.No.2942 of 2000, the amount due from the 40/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Borrower in respect of HML No. 52 and HML No 253 are as under:-Table-XVISl.No.HML.No.52 in (Rs.)52 +253 in (Rs.)1Total Outstanding as on 31.05.200053,04,674.851,55,18,166.30 83. A reference was made to paragraph 6, 9 & 10 of Ex.A11 Counter, which reads as under:-“6. The averments in para 5 with regard to another loan availed of by the petitioner on 22.3.1993 are incorrect. The amount borrowed by the petitioner was Rs. 41 lakhs and not 40 lakhs as stated by the petitioner. The claim that the pronote executed by the petitioner in respect of this loan was blank is false and denied. The payments set out in the said para are admitted except for the sum of Rs.4.00 lacs stated to have been paid on 16.4.94 by the petitioner. The scrutiny of the books of account as well the the bank statements disclose that the said amount has not been received. The total amount due and payable by the petitioner as against the aforesaid amounts as on 31.05.2000 is Rs.1,55,18,666.30/- 9. The averments in para 8 of the petitioners affidavit are repetitive and denied. It is however admitted that receipts were issued whenever amounts were paid by the petitioner and the same was credited. The claim of the petitioner that the mortgage in respect of the Schedule A property stands discharged is being made for the first time for the purpose of the case and is without basis for the purpose of the case and is without basis.41/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022 10. The averments in para 9 of the affidavit, to the effect that an oral request was made by the petitioner is false and denied. The letters dated 16.2.2000* and 6.3.2000# referred to by the petitioner are admitted. A mere reading of the contents of the letter dated 16.2.2000 would disclose that there were outstanding liabilities payable by the petitioner to the respondent. Even according to the the petitioner no payment has been made subsequent to 16.2.2000. It is once again reiterated that no request was made by the respondent for release of the document, since the same the in untenable in law and was therefore never made. The claim that there was no amount Payable by the petitioner to the respondent in respect of any "loan account" is false and denied. As on 31.5.2000 a total sum of Rs.1,55,18,166.30 is due and payable by the petitioner to the plaintiff in the two loan accounts maintained by the respondent.” * Ex.A4 # Ex.A5 84. The fact remains that Borrower has not denied that the Borrower was in arrears of amounts due to the company under liquidation prior to institution of O.S.No.2942 of 2000.85. As per Ex.A4 Letter dated 16.02.2000 in response to Ex.C2 – Letter dated 10.02.2000 for HML No.253, the Borrower has himself admitted that the Borrower has paid only a sum of Rs.30,60,000/- 42/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022and a further sum of Rs.75,00,000/- against HML No. 52 and HML No 253.86. In Ex.A4 Letter dated 16.02.2000, the Borrower has given an undertaking that he was prepared to accept any liability within the permissible limit payable by the proposal after discussing the facts. In the same letter the borrower has also admitted that due to economic recession in real estate business he could not make further payments. Thus, there is no denying that the Borrower has admitted to his liability. 87. There are also no clear records to show that Rs.75,00,000/- was paid by the Borrower towards the above HML No.52 and HML No.253. All that the Borrower has stated that he was not aware as to how the amounts paid were appropriated by the Company under Liquidation and that due to economic recession in the real estate business the borrower is struggling for survival to pay the balance.88. There are no evidence of any further payments by the Borrower to the Company under Liquidation. C.S.No.916 of 2000 was almost 43/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022immediately filed on 21.11.2000 after exchange of following communication:-Table-XVIIExhibitDateDescriptionC110.02.2000Letter issued by the Company to the Borrower demanding Rs.39,96,359/- in respect of HML.No.52C210.02.2000Letter issued by the Company to the Borrower demanding Rs.50,00,000/- in respect of HML.No.253A416.02.2000Certified copy of Letter of Borrower in response to Ex C1 letter dated 10.02.2000A506.03.2000Certified copy of Letter of the Borrower in response to letter dated 01.03.2000A607.05.2000Certified copy of the paper publication in one issue of Tamil Daily “Dina Malar”A707.05.2000Certified copy of the paper publication in one issue of English Daily “Hindu”A808.05.2000Certified Copy of the Legal Notice on behalf of the BorrowerA913.05.2000Certify copy of the Reply to the Legal Notice dated 08.05.2000. 89. That apart, the statement of the position as far as the amount due under the respective House Mortgaged Loan as per the Statement of the Official Liquidator corresponds with the amounts due as per the Company under liquidation in Ex.C1 & C2 both dated 10.02.2000 which have been replied by the borrower vide Ex.A4 letter dated 16.02.2000 & A5 letter dated 06.03.2000 as mentioned above.44/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202290. The principal outstanding as per the Statement of the Official Liquidator before this Court is that almost the same position that was taken by the Company under liquidation in Ex.C1 and Ex.C2 both dated 10.02.2000 as detailed below:- Table-XVIIISl.No.ExhibitC1C2TotalClaim of the Office of the Official LiquidatorTotalHML.No52253 52253 1Mortgage Loan AmountRs.39,96,359* Rs.50,00,000# 89,96,35949,75,00050,00,00099,75,0002Principal OutstandingRs.24,61,588Rs.50,00,00074,61,58824,61,598/-50,00,00074,61,5983Interest OutstandingRs.23,89,621Rs.43,40,82067,30,44123,43,03542,50,14965,93,1844Total Outstanding as on 31.01.2000Rs.48,51,209Rs.93,40,8201,41,92,02948,04,633.9092,50,149.601,40,54,783*(as on 23.08.1990)#(as on 18.03.1993) 91. A reading of the Exhibits marked before this court indicate that there is no dispute with regard to the amount that were borrowed by the borrower from the Company under Liquidation. 45/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202292. The details of the amounts that were borrowed were in 5 tranches. As mentioned elsewhere during the course of this judgment. The 1st and 3rd loans were secured by Promissory Notes and Registered Simple Mortgages of Schedule A and Scheduled B properties. 93. The 2nd and the 5th loans for a total sum of Rs.40,00,000/-(15,00,000 + 25,00,000) which were treated as a part of HML No.52. They were secured by promissory notes and equitable mortgages created by deposits of title deeds of Schedule A and Scheduled B properties.94. Though, the documents mentioned above have been marked as Exhibits during the course of Trial before the Learned Master by the RW-1 on behalf of the company under liquidation, it is evident from a reading of the Written Statement dated 31.7.2001 filed in C.S.No. 916 of 2000 before this court (before it was transferred to the 1st Additional Civil Court, Chennai and re-numbered as O.S.No. 6891 of 2010, the Company under Liquidation has not alluded to the R8 dated 23.08.1990 and R2 Promissory Note dated 18.03.1993 against loan for Rs.9,75,000/- and Loan for Rs.9,00,000/-.46/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202295. In the written statement, it was stated by the Company under Liquidation that, the Borrower had obtained loans in respect of the above 2 loans by executing a registered Simple Mortgage of Schedule A and Scheduled B Properties.96. The Borrower in Ex.A4 Letter dated 16.2.2000 has admitted defaults committed by him by stating that due to economic recession further payments could not be made by the Borrower to the Company under Liquidation and requested for rendition of Accounts, the content of which has been extracted above in respect of both HML No.52 & HML No.253.97. In fact, in Ex.A8 Legal Notice dated 08.05.2000 issued to the Company under liquidation on behalf of the Borrower also, there is an admission by the Borrower that amounts were borrowed in 4 tranches except for a Sum of Rs.41,00,000/-.98. In Ex.A8 Legal Notice dated 08.05.2000, the borrower has stated 47/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022that the borrower has repaid a sum of Rs.22,84,588/- towards HML No. 52 as on 21.12.1993 as against a required amount of Rs.16,72,125/- and therefore an amount of Rs.6,12,463/- was paid in excess by the Borrower towards HML No.21000052.99. In Ex.A8- Legal notice dated 08.05.2000, the borrower has also alluded to Ex.A4 letter dated 16.02.2000 and Ex.A5 Letter dated 06.03.2000, wherein the company under liquidation was called upon to furnish the Statement of Account.100. It is perhaps in this background, the borrower filed O.S.No. 2942 of 2000 against the company under liquidation. The suit purportedly was filed for Rendition of Account and for a permanent injunction to restrain the company under liquidation from selling the Schedule A and Schedule B Property of the Borrower which was offered as security.101. In O.S.No. 2942 of 2000, the borrower had also filed I.A.No. 7719 of 2000 and secured an interim order on 07.06.2000 to restrain 48/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022the Company under liquidation, from proceeding with the proposed auction of Schedule A & B Property of the Borrower. The aforesaid application was ordered by the IV Additional City Civil Court, subject to the condition that the borrower deposits sum of Rs.5,00,000/- to the credit of the aforesaid suit.102. The status of O.S.No. 2942 of 2000 filed before the IV Assistant City Civil Court, Chennai has not been informed either by the Borrower or the office of the official liquidator. However, it is evident that C.S.No. 916 of 2000 was filed on 21.11.2000 after securing order on 07.06.2000 in I.A.No. 7719 of 2000 in O.S.No. 2942 of 2000.103. The amounts that were repaid by the Borrower to the Company under Liquidation under the respective loans as per the case of the Borrower under HML No.52 and HML No.253 can be summarized as detailed below:- Table-XXSl.NoLoan Account No.52253Grand Total1Loan AmountRs.9,75,000Rs.9,00,000P.N Loans Rs. 58,75,00049/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Rs.40,00,000*TotalRs.9,75,000Rs.49,00,0002Loan Amount repaid as per Ex.A4 Letter dated 16.02.2000 Rs.30,60,000Rs.75,00,000 Rs.1,05,60,0003Loan Amount repaid as per Ex.A8 Legal Notice dated 08.05.2000Rs.22,48,588 4Loan Amount repaid as per PlaintRs.38,53,516Rs.86,36,812Rs.1,24,90,328/- *Rs.40,00,000/-[Rs.25,00,000 + Rs.15,00,000] under Promissory Notes104. A reading of Ex.A4 dated 16.2.2000 issued by the Borrower to the Company under Liquidation indicates that the Borrower admits having paid certain amounts against HML No. 52 and HML No 253 which would also include the 2 other loans for a sum of Rs.40,00,000/- (15,00,000+25,00,000).105. The position that emerges from a cumulative reading of the documents marked as Exhibits before this court indicate that the Borrower has paid a sum of Rs.38,53,516/- as stated in the plaint against HML No.52.106. Whereas in Ex.A8 Legal Notice dated 08.05.2000, the 50/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Borrower has stated that the Borrower has repaid only a sum of Rs.22,84,588/- paid towards the aforesaid loan in HML No.52. Thus, there is contradiction.107. In the Plaint, the Borrower has stated that against a sum of Rs.49,00,000/- (9,00,000+15,00,000+25,00,000) against HML No.253 and 2 other loans on Promissory Notes, he has paid a sum of Rs.86,36,812/- and in all the borrower claims to have paid a total sum of Rs.1,24,90,328/- [Rs.38,53,516 + Rs.86,36,812]. This is without reference to the Loan of Rs.41,00,000/-.108. In Ex.A4 Notice dated 10.02.2000, the borrower has claimed to have paid a sum of Rs.30,60,000/- in lumpsum towards HML.No.253 and a further sum of Rs.75,00,000/- as against both HML No.52 and HML No.253. Thus, in all the amounts repaid is only Rs.1,05,60,000/- (Rs.30,60,000 + Rs.75,00,000).109. However, as per the plaint and Ex.A3 receipts the Borrower has claimed to have repaid a sum of Rs.1,24,90,328/-. The last date of payment 51/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022is 22.08.1998. Thereafter, there are no records of any other payment made by the Borrower. 110. In the typed set of document filed in Comp.A.No.1515 of 2007, the Office of the Official Liquidator also admits receipt of Rs.1,21,50,467/- from the Borrower. Thus, the borrower has actually paid a total sum of Rs.1,24,90,328/-.111. Thus, the Borrower has taken contradictory stand both with regard to the amounts borrowed from the Company under Liquidation and also the amounts that were repaid by the Borrower pursuant to the Ex.A4 Letter dated 16.02.2000 in response to Ex.C2 Letter dated 10.02.2000 and Ex.A8 Legal Notice dated 08.05.2000 and the plaint.112. The Borrower has not explained the amount of Rs.41,00,000/- borrowed. A schewed presentation of facts has been narrated in the plaint.113. The Office of the Official Liquidator on the other hand has claimed that the borrower has borrowed additionally a sum of 52/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Rs.41,00,000/- towards HML No.253.114. As per the Office of the Official Liquidator, in C.A.No. 431 of 2022 filed on 27.10.2022, the borrower has to pay a sum of Rs.1,40,54,753/- The details of claim in C.A.No. 431 of 2022 is as under:-Table-XXI HML No.52253Total AmountPrincipal Amount9,75,000+15,00,000+25,00,0009,00,000+41,00,000 Total49,75,00050,00,00099,75,000Principal Amount paid25,13,402-25,13,402Principal Amount due24,61,59850,00,00074,61,598Interest due15,75,41628,00,00043,75,416Penal Interest due7,18,117.9013,55,704.6020,73,822.50Interest Tax due49,51294,4451,43,957Total Amount due48,04,633.9092,50,149.601,40,54,783 115. As per the Company under Liquidation and the Office of the Official Liquidator the details of Loan availed and the Exhibits marked are as under :-Table-XXIHML.No52253Amount9,75,000/-15,00,000/-9,00,000/-41,00,000/-Date23.08.199031.1.1993**18.3.199320.03.199353/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202201.02.1993# -Rs.15L22.03.1993Rs.41L**Interest22%24%24%24%P.N -Ex.NoR8*R6R2*R3Deed-Ex.NoA1/R7-do-A2/R5R4Date and Particulars of the Deed22.08.1990(Reg-Simple Mortgage-‘A’ Schedule)01.02.1993(MOD) –‘A’-Schedule16.03.1993(Reg-simple Mortgage-‘B’ Schedule)21.03.1993(MOD)-‘B’ ScheduleAmount 25,00,000/- Date 13.05.1993# P.N Ex.No R9 Deed Ex.No -do- 14.05.1993(MOD)-A+B Shedule TotalRs 9,75,000/-Rs.40,00,000/-Rs.50,00,000/-*ignored in written Statement filed by the Company**ignored by Office of the Official Liquidator#Borrower Disputes the date 116. In the Report dated June 2009 of the Office of the Official Liquidator filed in C.A.No.1515 of 2007, the Office of the Official Liquidator was unable to confirm Disbursal of Rs.41,00,000/- to the Borrower. Relevant portion of which is extracted below:-“4.That the Court has further directed the (Official Liquidator to write to the company bankers to find out if any payment has been made by M/s. RBF Nidhi Limited to the debtor during the year 1993. Accordingly the Official Liquidator has written to the 54/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Canara bank,Royapettah, Chennai-14. on 6.1.2009 and the bank vide reply dated 30.01.2009 has stated that the bank normally preserves 8 years old records and thereafter goes for destruction of records and that they are unable the furnish the requested records as the same pertains to the year 1993. A copy of the letter is enclosed herewith as Annexure 'A.” 117. In the Report dated June 2009 of the Office of the Official Liquidator there is a reference to the crystallization of the outstanding Principal amount alone as on 31.12.1999 in respect of which the outstanding Principal amount alone works out to Rs.74,61,588/-. Relevant portion of which is extracted below:-“8.That the Official Liquidator prays this Hon'ble Court to look in to the huge amount payable by him to the company in liquidation while considering the offer of settlement made by the respondent. The Official Liquidator submits that the committee of directors appointed by the Central Government Under Section 408 of Companies Act, 1956 have crystalised the outstanding as on 31.12.1999 in which case in respect of present application the amount outstanding will be Rs.74,61,588/.”118. The aforesaid loan for Rs.41,00,000/- to the Borrower is secured by Ex.R3 Promissory Note dated 20.3.1993 and Ex.R4 Deposit of Title 55/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Deed of Schedule ‘B’ Property dated 21.03.1993 of the Borrower. The Borrower has however disputed execution of Ex.R4 Deposit of Title Deed of Schedule ‘B’ Property dated 21.03.1993 of the Borrower in the counter filed in response to C.A.No.431 of 2022. However, they are sited by the Borrower.119. The fact remains that the Borrower has applied for Ex.R1 House Mortgage Loan on 28.02.1993 for a sum of Rs.50,00,000/-. The application was issued on 23.02.1993. This Rs.50,00,000/- is sub total of Rs.9,00,000/- +41,00,000/- of HML.No.253. Thus, the facts clearly emerges that the Borrower borrowed a sum of Rs.50,00,000/- consisting of Rs.9,00,000 + Rs.41,00,000. 120. Though the Office of the Official Liquidator is unable to confirm the disbursal of Rs.41,00,000/- to the Borrower, in Ex.C3 (though not marked before the Learned Master), Statement of Accounts and Interest Working Statement filed by the Borrower himself in C.A.No.1515 of 2007, before this Court on 29.06.2009 for approving the proposal made by the Borrower before the Official Liquidator for Settlement of Accounts at 56/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Rs.15,00,000/- in full and final Settlement of all the dues and to grant 3 months time for one-time Payment. 121. This offer was no doubt “without prejudice” to contention of the Borrower having received a Sum of Rs.41,00,000/- on 22.03.1993, towards Loan No.3. The Statement of Accounts and Interest Working Statement filed by the Borrower himself in C.A.No.1515 of 2007, before this Court on 29.06.2009 is extracted below :57/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022122. In the Report dated November 2009 of the Office of the Official Liquidator filed in C.A.No.1515 of 2007 there is also a reference to the admission that is said to have been made by the Borrower which is extracted below:-“That the respondent/debtor also has accepted the payment of Rs.41 lakhs from the company in liquidation as seen in page no.6 of the Statement of Accounts and interest workings dated 29.06.2009 58/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022under the heading loan No.3 filed by the respondent herein on 29.06.2009 before this Hon'ble Court.” 123. In Ex.A4 Letter dated 16.02.2000, the Borrower has also given only a apologetic reply to Ex.C2 Letter dated 10.02.2000 wherein he stated that he was prepared to accept any liability within the permissible limit payable by the proposal after discussing the facts.124. Thus, there is no doubt the borrower has borrowed Rs.41,00,000/- over and above Rs.9,00,000/ under HML No.253. The Office of the Official Liquidator is thus entitled to recover the balance amounts due from the Borrower against the aforesaid amounts advanced/loaned to the Borrower for a Total Sum of Rs.99,75,00,000/- [Rs.9,75,000+ Rs.15,00,000+ Rs.25,00,000+ Rs.9,00,000+ Rs.41,00,000].125. The fact remains that amounts are due. It is however not clear as to which of the loan were discharged at what point of time and how the payments were appropriated by the Company under Liquidation. This ought to have been brought up by the Office of the Official Liquidator, as it is too much to expect the borrower to assist the Court as the borrower is wrongly 59/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022claiming a refund of Rs.7,39,828/-. Therefore Office of the Official Liquidator is permitted to get back all the records from EOW Chennai-II. There is absolutely no merits in C.A.No.516 of 2011 (Formerly CS.No. 916 of 2000 renumbered as O.S.No 6891 of 2010). It is is liable to be dismissed.126. Admittedly there are multiple mortgages created by the Borrower in favour of the Company under liquidation in connection with the loans in HML.No.52 and HML.No.253. The details of HML.No.52 and HML.No.253 as has been explained as above. 127. Various company petitions that were filed starting from C.P.No.203 of 2004 to C.P.No.230 of 2004 on 17.10.2004 against the Company under Liquidation to wind it up. The company under Liquidation was eventually ordered to be wound up on 17.04.2006 in C.P.No.203 of 2004 to C.P.No.230 of 2004 by which time the Borrower had already filed C.S.No.916 of 2000 on 21.11.2000, to recover a sum of Rs.12,39,838/- from the Company under Liquidation allegedly due to the Borrower from the Company under Liquidation. The Borrower also wanted to redeem 60/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022mortgage of Schedule A & B Property without actually discharging the loan. 128. The Borrower filed C.S.No.916 of 2000 without discharging the liability under HML.No.52 and HML.No.253, C.S.No.916 of 2000. C.S.No.916 of 2000 filed by the Borrower was pre-mature. It was filed even though the right to sue had not accrued to the Borrower as the loans under HML.No.52 and HML.No.53 had not been fully discharged by the Borrower. This is evident from a reading of Ex.A4 Letter dated 16.02.2000 and Ex.A5 Series Letter dated 06.03.2000 of the Borrower in response to Ex.C2 Notice dated 10.02.2000 and Notice dated 01.03.2000 of the Company under Liquidation and Ex.A8 Legal Notice dated 08.05.2000 of the Borrower.129. In all the above mentioned Exhibits, there are admissions of liability by the Borrower though the Borrower has not clearly explained what was the amount that was due and payable by the Borrower to the Company under Liquidation. The Borrower however requested the Company under Liquidation for negotiation to close the loans owing to his 61/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022economic conditions.130. Part V of First Division of the Limitation Act, 1963 prescribes the period of limitations in respect of suits relating to immovable property. Article 62 of the Limitation Act, 1963, pertains to a suit to enforce payments of money secured by a mortgage or otherwise charged upon immovable property by a mortgage. The period of limitation prescribed is twelve (12) years. The limitation begins to run from the date when the money sued for becomes due.131. It cannot be therefore said that after initiation of C.S.No.916 of 2000 on 21.11.2000, the limitation for right to sue for money commenced or right to sue for foreclosure of mortgage under HML No.52 and HML No.253 expired immediately after the written statement in C.S.No.916 of 2006 was filed. 132. The argument that Comp.A.No.431 of 2022 or for that matter Comp.A.No.1515 of 2007 were barred in view of limitation prescribed under Article 62 of the Limitation Act, 1963 cannot be countenanced 62/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022merely because no counter claim was filed along with the written statement in C.S.No.916 of 2000. The limitation for the Company under liquidation under Article 63 of the Limitation Act, 1963 cannot be reduced merely becaue C.S.No.916 of 2000 was filed on 21.11.2000 by the Borrower prematurely contrary to the admissions in Ex.A4 Letter dated 16.02.2000 and Ex.A5 Series Letter dated 06.03.2000 of the Borrower in response to Ex.C2 Notice dated 10.02.2000 and Notice dated 01.03.2000 of the Company under Liquidation and Ex.A8 Legal Notice dated 08.05.2000 of the Borrower.133. In fact, the Company under Liquidation is entitled to sell the Schedule A & B Property under Section 69 of the Transfer of Property Act, 1882. The Company under Liquidation as a “Mortgagee” has a period of limitation of 30 years to file a suit for foreclosure of rights under the mortgages in terms of Article 63 in Part V of the Limitation Act, 1963.134. In computing the period of limitation for suit or application in the name and/or on behalf of the company which is being wound up, the period from the date of commencement of the wounding up of the company 63/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022to the date on which the wounding up order is made both inclusive and a period of one year immediately following the date of wounding up order shall be excluded. Either, C.A.No.1515 of 2007 that was filed on 01.06.2007 or C.A.No.431 of 2022 that was filed later on 27.10.2022 cannot be said that they were barred by limitation as the loan had not been repaid or liability discharged. 135. It cannot be said that limitation for the right to sue to recover money or for right to sue for foreclosure of mortgage under HML.No.52 and HML.No.253 had commenced on the date of written statement filed in C.S.No.916 of 2000. Thus, there is no merits in the submission of the Borrower.136. Since the period of limitation cannot be said to have expired, the Company under Liquidation through the Office of the Official Liquidator is thus entitled to enforce its rights over the mortgaged property as the Borrower failed to discharge the loan.137. C.A.No.431 of 2022 is therefore disposed by directing the 64/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Office of the Official Liquidator to file a fresh report giving the correct particular of the amounts paid by the Borrower, appropriated and balance payable.138. The Office of the Official Liquidator may also take the assistance of a Chartered Accountant to look into the accounts in case of any complication and thereafter file a fresh report before this Court to recover the balance amount from the Borrower. 139. If there are no dues payable to any other creditors of the Company under liquidation and if the amounts have also been already paid to the contributories of the Company under liquidation, the Borrower may be given an option to settle the balance amount after due negotiation taking note of downward revision of bank rates in the later years.140. In the light of the above discussions the issues framed are answered as under:-1.Whether the plaintiff* (Borrower) is entitled to redemption of mortgage in respect of ‘A’ 65/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022schedule property?Ans: No2.Whether the plaintiff* (Borrower) is entitled to redemption of mortgage in respect of ‘B’ schedule property?Ans: No3.Whether the discharge pleaded by the defendant# (Company under Liquidation) is true?Ans: To be decided after a fresh report is filed by the Office of the Official Liquidator based on the observations based on the observations contained herein4.Whether the defendant# (Company under Liquidation) is liable to repay the amount as alleged in the plaint?Ans:Yes. Subject to fresh report of the Office of the Official Liquidator5. What is the amount due to the defendant# (Company under Liquidation)?Ans:To be decided after a fresh report is filed by the Office of the Official Liquidator6.To what other relief? Ans:Nil for the present.141. In the result, i.C.A.No.516 of 2011 (formerly CS. No. 916 of 2000 renumbered as 66/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022O.S.No. 6891 of 2010) is dismissed.ii.C.A.No.431 of 2022 is disposed with the above observation.iii.EOW Chennai-II is directed to return the originals to the office of the Official Liquidator for further action in this regard. iv.No cost.21.06.2024jen/rgmC.SARAVANAN, J.jen/rgm67/68

Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022later closed in view of the order passed in C.A.No.97 of 2008.12. The Trial in O.S.No.6891 of 2010 however commenced before the 1st Additional City Civil Court, Chennai without taking note of order dated 17.04.2006 in C.P.No.230 of 2004 ordering winding up of the said company. Documents were also marked on behalf of the Borrower as the plaintiff in the above suit in O.S.No.6891 of 2010 [Formerly C.S.No.916 of 2000] on 23.11.2010 before the 1st Additional City Civil Court, Chennai.13. On behalf of the Borrower, the Borrower himself tendered evidence as P.W.1 and Ex.A1 to Ex.A15 were marked.14. An ex-parte decree was also passed by the 1st Additional City Civil Court, Chennai on 23.11.2010, unaware of the fact that the said company was earlier ordered to be wound up on 17.04.2006 in C.P.No.203 of 2004 to C.P.No.230 of 2004. The Borrower suppressed the fact that the Borrower had earlier filed C.A.No.97 of 2008 and was pending orders.6/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202215. After the said Company was ordered to be wound up on 17.04.2006, Statement of Affairs was filed by the former Director of the Company under Liquidation. It is at this stage, the Office of the Official Liquidator realized that as per the records maintained by the said Company under Liquidation, the Borrower was still in arrears of the amounts under various Loans advanced to the Borrower by it.16. Thus, Comp.A.No.1515 of 2007 was filed by the Office of the Official Liquidator before this Court to direct the Borrower, [the applicant in C.A.No.516 of 2011] to pay a sum of Rs.1,40,54,738.50/- after adjusting the amounts paid by the Borrower together with interest at 24% per annum from 01.01.2000 as detailed below:-Table-IIAmount due as on 31.12.1999 Calculated by the Official Liquidator’s office:- HML No.52 in (Rs.)253 in (Rs.)Total Amount in (Rs.)Principal Amount9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* Total49,75,00050,00,00099,75,000Principal Amount paid25,13,402-25,13,402Principal Amount due24,61,59850,00,00074,61,5987/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Interest due15,75,41628,00,00043,75,416Penal Interest due7,18,117.9013,55,704.6020,73,822.50Interest Tax due49,51294,4451,43,957Total Amount due48,04,633.9092,50,149.601,40,54,783 Interest at *22% Interest at #24% HML: House Mortgage Loan17. Comp.A.No.1515 of 2007 filed by the Official Liquidator was however closed vide order dated 20.06.2011 by this Court, since O.S.No.6891 of 2010 [Formerly C.S.No.916 of 2000] had already been decreed Ex-Parte on 23.11.2010, with a liberty to the Office of the Official Liquidator to file appropriate application and in the event of it succeeding in the application filed for setting aside the Ex-Parte decree dated 23.11.2010 passed in the above suit by the 1st Additional City Civil Court, Chennai and was allowed.18. Thus, the Office of the Official Liquidator filed Comp.A.No.396 of 2011 to set aside the Ex-Parte Decree dated 23.11.2010 passed by the 1st Additional City Civil Court, Chennai in O.S.No.6891 of 2010 [Formerly C.S.No.916 of 2000]. This Court allowed Comp.A.No.396 of 8/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 20222011 on 15.07.2011 and thus set aside the Ex-Parte Judgment and Decree dated 23.11.2010 passed by the 1st Additional City Civil Court, Chennai in O.S.No.6891 of 2010 (Formerly C.S.No.916 of 2000) by the 1st Additional City Civil Court, Chennai. Thus, O.S.No.6891 of 2010 (Formerly C.S.No.916 of 2000) was restored to the file and renumbered as C.A.No.516 of 2011 which is now under consideration.19. After the Judgment and Decree passed on 23.11.2010 by the 1st Additional City Civil Court, Chennai was set aside wherein Ex.A1 to Ex.A15 were marked on 19.08.2013, the Borrower once again deposed evidence before the learned Master’s Court on various dates starting from 28.03.2014.20. On behalf of the company under liquidation, Mr.J.Perumal, Upper Division Clerk from the Office of the Official Liquidator tendered evidence as R.W.1 and Ex.R1 to Ex.R9 were marked through him. This Court had thereafter marked Ex.C1 to Ex.C3. The details of these Exhibits marked on behalf of Borrower and the Office of the Office Liquidator for the company under liquidation and by this Court are given in chronological order:- 9/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Table-IIIExhibitsDateDescriptionA1/R722.08.1990Certified copy/ Photo copy of Simple Mortgage for Rs.9,75,000/- executed by the Borrower in favour of the company of Schedule ‘A’ propertyR8 Series23.08.199001.02.1993Photocopies of the promissory notes executed by the Borrowers in favour of company for Rs.9,75,000/-Rs.15,00,000/-R6 Series31.01.1993Promissory note dated 31.01.1993 01.02.1993Photo copy of the Memorandum of Deposit of title deeds of Schedule ‘A’ property executed by the Borrowers in favour of company on 01.02.1993R128.02.1993* Photocopy of the application for House Mortgage Loan for Rs.50,00,000/- submitted by the Borrower to the company of Schedule ‘B’ property.A2/R516.03.1993Certified copy / Photo copy of Simple mortgage for Rs.9,00,000/- of Shedule ‘B’ propertyA3 Series Photo copy of Certified copies of the receipts issued by the Company for payments made to the Royapettah Benefit Fund LimitedR2 Series18.03.1993 22.03.1993Photocopies of the promissory notes executed by the Borrowers in favour of companyRs.9,00,000/-Rs.41,00,000/-R320.03.1993Photo copies of the Promissory Note executed by the Borrower in company for Rs.41,00,000/-R421.03.1993Photo copies of the Deposit of Title Deeds for Rs.41,00,000/- of Schedule ‘B’ propertyR9 Series13.05.1993Promissory Note for Rs.25,00,000/-14.05.1993 Photo copy of Deposit of Title Deeds of Schedule A & B property executed by the Borrower in favour of the Company A1030.05.1994Certified copy of the Banker’s Cheque bearing No.065637 issued by the Canara BankC110.02.2000Letter issued by the Company to the Borrower demanding Rs.39,96,359/- in respect of HML.No.52C210.02.2000Letter issued by the Company to the Borrower demanding Rs.50,00,000/- in respect of HML.No.253A416.02.2000Certified copy of Letter of Borrower in response to Ex.C1 letter dated 10.02.2000A5 Series06.03.2000Certified copy of Letters of the Borrower in response to Ex.C2 letter dated 10.02.2000 and another letter dated 01.03.200010/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022A607.05.2000Certified copy of the paper publication in one issue of Tamil Daily “Dina Malar”A707.05.2000Certified copy of the paper publication in one issue of English Daily “Hindu”A808.05.2000Certified Copy of the Legal Notice on behalf of the BorrowerA913.05.2000Certify copy of the Reply to the Legal Notice dated 08.05.2000.A1510.05.2000Certified copy of the petition filed in I.A.No.7719/2000 in O.S.No.2942/2000A1107.06.2000Certified copy of the counter affidavit filed by the respondent in IA.No.7719/2000 in O.S.No.2942 of 2000 on the IV Assistant City Civil Court, ChennaiA1223.08.1990-28.12.1993 & 01.01.1994-22.08.1998Statement of Accounts from the book of the plaintiff in respect of the loan account No.HML 52 of the respondentA1309.05.200011.05.2000Series (2 Nos) are the certified copies of encumbrance certificates of the mortgaged property in loan account No.HML 52A1414.10.2000Certified copy of the valuation report filed in O.S.No.2942 of 2000 on the file of the IV Assistant City Civil Court, ChennaiC329.06.2009Statement of Accounts and Interest Working Statement filed by the borrower in C.A.No.1515 of 2007*Application issued on 23.02.1993.21. Pursuant to the aforesaid Order dated 15.07.2011 in Comp.A.No.396 of 2011, the Office of the Official Liquidator has now filed C.A.No.431 of 2022 on 27.10.2022. C.A.No.431 of 2022 has been filed to take the report filed by the Office of the Official Liquidator and to direct the Borrower [the applicant in C.A.No.516 of 201 / respondent in Comp.A.No.431 of 2022] to pay a sum of Rs.1,40,54,783/- together with interest at the rate of 24% per annum in respect of the loans availed by the 11/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Borrower (or) to permit the Official Liquidator to realize the assets given as security by the Borrower and to incur the expenses towards this application from and out of the funds of the company in liquidation.22. The case of the Borrower in C.A.No.516 of 2011 is that the Borrower had taken two loans from the said Company under Liquidation for a sum of Rs.9,75,000/- on 22.08.1990 vide HML No.52 and a further loan for sum of Rs.9,00,000/- on 16.03.1993 vide HML No.253. As a collateral security, a registered simple mortgage of Schedule ‘A’ and Schedule ‘B’ Properties were created in favour of the aforesaid Company under Liquidation.23. The Borrower admits that the Borrower had taken further loan for a sum of Rs.40,00,000/- (Rs.15,00,000 + Rs.25,00,000] during 1994-1995 against which undated Promissory Notes were given as Collateral Security which have now been filled up the dates as 01.02.1993 and 13.05.1993 and marked as Ex.R8 Promissory Note for Rs.15,00,000/- and Ex. R9 Promissory Note for Rs.25,00,000/-.12/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202224. According to the Borrower, as against the HML No.52 for Rs.9,75,000/-, the Borrower has paid a total sum of Rs.38,53,516/- between 23.08.1990 and 28.12.1993 as detailed below and that the aforesaid loan together with interest payable to the said Company stood discharged on 28.12.1993. Table-IVDateReceipt No.Amount23.08.1990734618,037.5025.09.19901243218,037.5025.10.19901732318,037.5024.11.19902087718,037.5026.12.19902737918,037.5025.01.19913381118,037.5025.02.19913746518,037.5024.03.19913755218,037.5024.04.19913831018,037.5025.05.1991487318,037.5024.061991L 1790518,037.5025.07.1991L 2508418,037.5026.08.1991L 3046318,037.5025.09.1991L 3552618,037.5024.10.1991L 0646418,037.5024.11.1991J 0904518,037.5025.11.1991J 091214,387.5024.12.1991J 1355518,037.5025.01.1992J 1685719,500.0025.02.1992J 2184019,500.0025.03.1992J 2590619,500.0025.04.1992J 0260119,500.0024.05.1992J 0660519,500.0025.05.1992J 068311,00,000.0013/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202225.05.1992J 0683275,000.0025.06.1992J 1072419,500.0027.07.1992J 152773,00,000.0027.07.1992J 1532815,930.0025.08.1992J 189839,930.0024.09.1992J 233539,930.0027.10.1992J 276109,930.0026.11.1992J 321589,930.0031.12.1992J 374809,930.0023.01.1993J 402909,930.0001.02.1993J 4232330,203.0001.03.1993J 4665730,000.0002.03.1993J 468899,930.0018.03.1993J 489939,000.0022.03.1993J 4942241,000.0023.03.1993J 496535,00,000.0025.03.1993J 498559,930.0001.04.1993J 0000830,000.0022.04.1993J 0248682,000.0022.04.1993J 0248718,000.0002.05.1993J 0410030,000.0017.05.1993J 0600625,000.0001.06.1993J 0853130,000.0016.06.1993J 2577450,000.0017.06.1993J 1059950,000.0001.07.1993J 1368530,000.0017.07.1993J 1564350,000.0022.07.1993J 1640382,000.0022.07.1993J 1640318,000.0001.08.1993J 1863430,000.0017.08.1993J 2088150,000.0019.08.1993J 2270418,000.0019.08.1993J 2270582,000.0001.09.1993J 2334830,000.0025.09.1993J 2685882,000.0001.10.1993J 2817730,000.0014/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202217.10.1993J 3034450,000.0021.10.1993J 3104382,000.0021.10.1993J 3104418,000.0001.11.1993J 3254330,000.0017.11.1993J 3428750,000.0001.12.1993J 3680130,000.0001.12.1993J 369875,00,000.0021.12.1993J 3955649,918.0028.12.1993J 4034818,000.0028.12.1993J 4034982,000.00Total Rs.38,53,516.00/- 25. This is also part of Ex.A3 Series receipts filed by the Borrower. However, in Ex.A8 Notice dated 08.05.2000, the Borrower has stated that he has paid a sum of Rs.22,84,588/- only. It is stated by the learned Senior Counsel for Borrower that as against HML No.253 for Rs.9,00,000/-, the Borrower has paid amounts and discharged the liability completely. It is submitted that despite the same, the Office of the Official Liquidator has demanded amounts from the Borrower and thus refused to return the Documents and the excess paid.26. Learned Senior Counsel for the Borrower would further submit that the Borrower had taken the further loan for a sum of Rs. 15,00,000/- on 31.01.1993 and loan for a sum of Rs.25,00,000/- on 13.05.1993 and had 15/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022created an equitable mortgage and executed Ex.R6 Memorandum of Deposit of Title Deed dated 01.02.1993 of Schedule A property and Ex.R9 Memorandum of Deposit of Title Deed dated 14.05.1993 of both Schedule A & B properties in favour of the Company under Liquidation when it was a going concern.27. It is submitted that as against the aforesaid loan of Rs.9,00,000/- under HML No.253 and Rs.40,00,000/- [Rs. 15,00,000 + Rs.25,00,000] against Promissory Notes, the Borrower has re-paid a sum of Rs.86,36,812/- on various dates between the period of 02.01.1994 to 22.08.1998. In this regard, a reliance was placed on Ex.A3, Ex.A4 and Ex.A8 which are detailed as under:-Table-VExhibitsDateDescriptionA3 Series Photo copy of Certified copies of the receipts issued by the company for payments made to the Royapettah Benefit Fund LimitedA416.02.2000Certified copy of Letter of Borrower in response to Ex.C1 letter dated 10.02.2000A808.05.2000Certified copy of the Legal Notice on behalf of the Borrower28. Thus, according to the Borrower, the third loan for Rs.40,00,000/-16/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022[15,00,000 +25,00,000] also stood discharged on 22.08.1998. Thus, it is submitted that the Borrower has in all paid a sum of Rs.1,24,90,328/- [Rs.86,36,812 + Rs.38,53,516] against the principal sum of Rs.58,75,000/- [Rs.9,75,000 +Rs.9,00,000 + Rs.15,00,000 + Rs.25,00,000] which consists of Rs.66,15,328/- [Rs.1,24,90,328 – Rs.58,75,000] towards interest.29. It is submitted that the receipt for the aforesaid sum of Rs.1,24,90,328/- is covered by part of Ex.A3 Series receipts, and that there is no dispute regarding payment, although the respondent i.e., company under liquidation would contend that these loans have not been fully discharged. Amount due under Loan A/c as on December 1999 according to the Borrower and payments made are as under:-Table-VIS.NoLoan Number(a)Principal(b)Interest(c)Amount due(d)Amount paid(e)1First Loan 9,75,000 6,43,500 16,18,50038,53,5162Second Loan 9,00,000 4,32,000 13,32,0003Third Loan 40,00,000* 48,00,000 88,00,00086,36,812 Grand Total 58,75,000 58,75,5001,17,50,5001,24,90,328Amount paid in excess (e-d) Rs.7,39,828/-[* Rs.15,00,000/- + Rs.25,00,000]17/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202230. Hence the Borrower (plaintiff) claims to have paid a sum of Rs.7,39,828/- [Rs. 1,24,90,328 - Rs. 1,17,50,500] in excess. That apart, it is submitted that a sum of Rs.5,00,000/- was paid by the Borrower pursuant to order dated 05.06.2000 in I.A.No.7719 of 2000 in O.S.No.2942 of 2000 to defer the sale of Schedule A Property. 31. O.S.No.2942 of 2000 was filed by the Borrower against the company for rendition of accounts. Therefore, it is submitted that the Company under Liquidation owes a sum of Rs.12,39,823/- [Rs.7,39,828 + Rs.5,00,000] to the Borrower. Therefore, the Borrower was not only entitled for Redemption of Mortgage of Schedule ‘A’ and ‘B’ properties but also entitled for refund of Rs.12,39,828/-.32. The learned Senior Counsel for the Borrower would submit that there are no documents to substantiate that the Borrower has borrowed amounts over and above Rs.58,75,000/- [Rs.9,75,000 + Rs.9,00,000 + Rs.40,00,000 (Rs.15,00,000 + Rs.25,00,000)]. It is submitted that the Promissory Notes that were obtained from the Borrower at the time when 18/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022loans were sanctioned during 1990 and 1993, 1993-1996 for Rs.58,75,000/- [Rs.9,75,000 + Rs.9,00,000 + Rs.40,00,000 (Rs.15,00,000 + Rs.25,00,000)] were filled up to make it seem as if the borrower borrowed a further sum of Rs.41,00,000/- on 20.03.1993.33. It is submitted that there are no records to substantiate that over and above Rs.58,75,000/- any other amounts was borrowed by the Borrower and therefore, the question of entertaining the Comp.A.No.431 of 2022 cannot be countenanced.34. A reference was made to the Written Statement dated 31.08.2001 filed in C.S.No.916 of 2000 by the Company which was later renumbered as O.S.No.6891 of 2010 before the said Company was ordered to be wounded up on 17.04.2006. It is submitted that neither a “Set-Off” “nor a “Counter Claim” was made before the Court while filing the Written Statement dated 31.08.2001 by the said Company under Liquidation before this Court.35. It is submitted that the Company under Liquidation merely prayed for dismissal of the above suit filed by the Borrower. It is submitted that 19/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022there was also no “Counter Claim” for recovery of the amount due under the alleged loan of Rs.41,00,000/- which is said to have been allegedly borrowed by the Borrower.36. That apart, it is submitted that the application filed by the Office of the Official Liquidator in Comp.A.No.1515 of 2007 which relief is once again prayed for in Comp.A.No.431 of 2022 is clearly barred by limitation under Article 62 of the Limitation Act, 1963. It is submitted that at best, such an application could have been filed within 12 years from the date of the cause of action and therefore, the question of entertaining Comp.A.No.431 of 2022 cannot be countenanced as it was hopelessly time-barred.37. The learned Senior Counsel for the applicant would draw attention to the decision of the Hon'ble Division Bench of this Court in the case of Official Liquidator, Radel Services Private Limited Vs. Southern Screws Private Limited [(1988) 63 Comp Cas 749] rendered in the context of Section 458A of the Companies Act, 1956 read with the provisions of the Limitation Act, 1963.20/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202238. The learned Senior Counsel would submit that since the Borrower had discharged the HML No.253 and two Pro-Notes for Rs.40,00,000/-[Rs.15,00,000 + Rs.25,00,000] on 22.08.1998, the suit, if any, ought to been filed within a period of 12 years from the date of cause of action in terms of Article 62 of the Limitation Act, 1963.39. It is submitted that the Company Petition was filed on 07.10.2004 and the company was ordered to be wound up on 17.04.2006 and therefore as per Section 458A of the Companies Act, 1956, only the period between 07.10.2004 to 16.04.2007 alone could be excluded while computing the period of limitation of 12 years under Article 62 of the Limitation Act, 1963. 40. It is therefore submitted that even if the aforesaid period between 07.10.2004 to 16.04.2007 is excluded, the limitation to sue for recovery would have expired on 16.04.2019 by applying the provisions of Section 458A of the Companies Act, 1956 and Article 62 of the Limitation Act, 1963 and therefore, the question of entertaining Comp.A.No.431 of 21/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 20222022 filed on 27.10.2022 cannot be countenanced and hence, prays for dismissal of the application filed by the Official Liquidator in Company Comp.A.No.431 of 2022 and to allow the Company Application No.516 of 2011 filed by the Borrower.41. That apart, a reference is made to the deposition of RW1 [J. Perumal, the Upper Divisional Clerk from the Office of the Official Liquidators, High Court Madras. It is submitted that the said witness during the cross-examination on 22.01.2016 before the learned Masters has confirmed that he was not aware as to whether any document were filed before this Court to show that there was any debt due and existing from the Borrower in the above suit as of on 22.08.1990.42. It is further submitted that the said witness was also unable to confirm as to which of the Promissory Note in Ex.R2, Ex.R3, Ex.R8 and Ex.R9 related to the Simple Mortgage Deed under Ex.R5 photocopy of Simple Mortgage dated 16.03.1993.43. Similarly, it is submitted that the witness did not confirm details 22/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022regarding the disbursal of respective amounts mentioned in the Promissory Notes in Ex.R2, Ex.R3, Ex.R8 and Ex.R9. It is therefore submitted that the application filed by the Borrower in Comp.A.No.516 of 2011 has to be allowed and Comp.A.No.431 of 2022 has to be dismissed.44. The learned Senior Counsel further submits that the written statement that was filed by the company on 31.07.2001 also contains a concocted defence to state that as on 31.01.2001, the Borrower [the applicant in Comp.A.No.516 of 2011] owed a sum of Rs.1,95,92,088/- , to the Company under Liquidation.45. The office of the Official Liquidator has drawn attention to a report dated 25.09.2022 wherein it is stated that the Borrower, [the Applicant in Comp.A.No.516 of 2011 / respondent in Comp.A.No.431 of 2022] had taken the following Loans from the Company under Liquidation as detailed below:-Table-VII Sl.No Date of LoanHML.No.52HML.No.253Total122.8.1990*9,75,000.00 9,75,000.00201.02.9315,00,000.00 15,00,000.00316.03.93# 9,00,000.009,00,000.00420.03.93 41,00,000.0041,00,000.0023/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022517.05.9325,00,000.00 25,00,000.00Total49,75,000.0050,00,000.0099,75,000.00 *Date of registered Simple Mortgage Deed-(23.08.1990- Date of Promissory Note)# Date of registered Simple Mortgage Deed-(18.03.1993- Date of Promissory Note)46. It is further stated that as per the available records, balance to be remitted by the Borrower as on August 2000 in respect of both the loan accounts are as follows:-Table-VIIIS.No.Loan Account NoPrincipal DueInterestTotal1HMLO05224,61,58828,88,195.6553,49,783.652HMLO025350,00,00054,62,461.401,04,62,461.40Grand TotalRs.1,58,12,245.40 47. It is submitted that the claim in Comp.A.No.431 of 2022 (Formerly Comp.A.No.1515 of 2007) is also based on Ex.R3 Promissory Note dated 20.03.1993 for a sum of Rs.41,00,000/- and Ex.R.4 Deposit of Title Deed dated 21.03.1993 as detailed in Annexure C of the aforesaid Report dated 25.09.2022.24/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202248. That apart, the learned Deputy Official Liquidator submits that on account of the rival claims, complaints were also filed before the EOW, Chennai-2 and records were taken by the Officials of EOW, Chennai-2, which included the Original Documents. The learned Official Liquidator therefore submits that directions may be given to EOW, Chennai -2 to hand over the originals to the Office of the Official Liquidator.49. I have considered the Arguments of the respective counsel of both sides. I have perused the plaint of the Borrower, written statement and Report of the Official Liquidator.50. Details of the Promissory Notes and the Simple Mortgages and Equitable Mortgage by deposit of Title Deeds of Schedule A and Scheduled B properties are as under:-Table-XIXSl.No Date of LoanHML.No.52HML.No.253Ex. of Promissory Note Ex. of Deed122.08.19909,75,000.00 R8 - Demand Promissory Note dated 23.08.1990 A1/R7- Registered Simple Mortgage deed dated 22.8.1990 of ‘A’ Schedule property 231.01.1993 / 15,00,000.00 R6-Demand R6-Memorandum of 25/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202201.02.1993* Promissory Note dated 31.01.1993 deposit of Title Deeds of ‘A’ Schedule Property dated 01.02.1993316.03.1993 9,00,000.00R2- Demand Promissory Note dated 18.03.1993 A2/R5- Registered Simple Mortgage deed dated 16.03.93of ‘B’ Schedule Property420.03.1993# /22.03.1993 41,00,000.00R3- Demand Promissory Note dated 20.03.1993R4- Memorandum of deposit of Title Deeds of ‘B’ Schedule property dated 21.03.1993517.05.199325,00,000.00 R9-Demand Promissory Note dated 13.05.1993 R9-Memorandum of deposit of Title Deeds of ‘A’ and ‘B’ Schedule property dated 14.05.1993Total49,75,000.0050,00,000.0099,75,000 * Ex.R8 Series Demand Promissory Note dated 01.02.1993 # Ex.R2 Series Demand Promissory Note dated 22.03.1993 51. The Office of the Official Liquidator has filed C.A.No.431 of 2022 on 20.07.2022 for the above mentioned relief to direct the Borrower to repay a sum of Rs.1,40,54,783/- together with interest at 24%.52. The records available before this Court also reveals that earlier also a similar application was filed by the Office of the Official Liquidator in C.A.No.1515 of 2007 sometime in 2007.26/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202253. C.A.No.1515 of 2007 was however dismissed with liberty to file a fresh application in case of ex-parte decree dated 23.11.2010 passed by the 1st Additional City Civil Court, Chennai in O.S.No.6891 of 2010 was set aside. Relevant portion of the Order dated 20.06.2011 of this Court dismissing C.A.No.1515 of 2007 reads as under:-“4.In view of the decree being in favour of the respondent which is not set aside or stayed by any Court, this claim applications is not maintainable being premature. Consequently, this application is dismissed. The claim petition is therefore, dismissed as premature at this stage. However, it shall be open to the learned Official Liquidator, to file an appropriate application in the event of success of application for setting aside the ex-parte decree, or the final decision in suit for redemption, if so required, as per decision of the Civil Suit.54. Comp.A.No.516 of 2011 is a continuation of the suit filed by the Borrower in C.S.No.916 of 2000 before this Court which was later transferred to the 1st Additional City Civil Court, Chennai pursuant to reorganization of the pecuniary jurisdiction of the Courts and renumbered as O.S.No.6891 of 2010. Comp.A.No.431 of 2022 is a continuation of the Comp.A.No.1515 of 2007 which was closed with a liberty on 27/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202220.06.2011.55. By an order dated 03.01.2011 in C.A.No.97 of 2008, this Court had ordered O.S.No.6891 of 2010 be tried along with C.P.No.230 of 2004. However, the 1st Additional City Civil Court, Chennai had already decreed O.S.No.6891 of 2010 (Formerly C.S.No.916 of 2000) on 23.11.2010.56. Under these circumstances, C.A.No.396 of 2011 was filed before this Court to set aside the ex-parte decree dated 23.11.2010 in O.S.No.6891 of 2021 which was later allowed on 15.07.2011.57. It is under these circumstances, the Trial in C.A.No.516 of 2011 and C.P.No.230 of 2004 was recorded by the learned Master between 12.08.2013 and 22.01.2016, after Ex-parte decree passed by the 1st Additional City Civil Court, Chennai dated 23.11.2010 in O.S.No.6891 of 2010 was set aside on 15.07.2011 in Comp.A.No.396 of 2011.28/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202258. The Borrower had earlier filed O.S.No.2942 of 2000 before the IV Assistant City Civil Court, Chennai. The Borrower has marked a counter filed in O.A.No.7719 of 2000 in O.S.No.2942 of 2000 marked as Ex.A11 in the present proceeding to which I shall refer later.59. The record reveals that the IV Assistant City Civil Court, Chennai had stayed the auction of the Schedule ‘A’ Property vide its order dated 07.06.2000 in view of the undertaking given by the Borrower to deposit Rs.5,00,000/- in I.A.No.7719 of 2000 in O.S.No.2942 of 2000 before the IV Assistant City Civil Court, Chennai.60. Apart from the documents which were marked on behalf of the Borrower and Official Liquidator’s Office for the company under liquidation, there are also two other documents that are available in the Court bundle. Both are dated 10.02.2000 and in respect of the amounts that were allegedly due from the Borrower to the Company under Liquidation. Copy of these documents were not marked as Exhibits by the Borrower.29/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202261. Since these documents are available in typed set of documents filed by the Office of the Official Liquidator along with C.A.No.1515 of 2007 which was later dismissed on 20.06.2011 with liberty to file a fresh application in case the ex-parte decree dated 23.11.2010 in O.S.No.6891 of 2010 set aside. These documents are marked as Ex.C1 and Ex.C2. Ex.C1 and Ex.C2 are letters both dated 10.02.2000 of the Company under Liquidation addressed to the Borrower. Both these letters have also been replied by the Borrower vide Ex.A4 Letter dated 16.02.2000 and Ex.A5 Letter dated 16.02.2000.62. Therefore, these two letters dated 10.02.2000 of the Company under Liquidation addressed to the Borrower have been marked as Ex.C1 and Ex.C2 as there is no point in calling for the Office of the Official Liquidator to mark these documents by referring the case back to the Learned Master’s Court for marking them as exhibits.63. Likewise, the Statement of Accounts and Interest Working Statements which was filed by the Borrower in C.A.No.1515 of 2007 on 30/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202229.06.2009 is marked as Ex.C3, to which also I shall refer to later.64. Ex.C1 and Ex.C2 letters both dated 10.02.2000 were addressed to the Borrower by the Company under Liquidation. Ex.C1 and Ex.C2 dated 10.02.2000 read identically. They are in respect of HML No.52 and HML.No.253. Their texts are reproduced below for the sake of clarity:-Table-IXEx.C1 dated 10.02.2000Ex.C2 dated 10.02.2000 Sub: House Mortgage Loan No.52 for Rs.39,96,359/- On perusal of our records, it is seen that you had borrowed from RBF Nidhi Limited a sum of Rs.39,96,359/- on 23.08.90. The above loan has become due for repayment on 23.08.92. Please note that the principal outstanding is Rs.24,61,588/- and Interest Outstanding is Rs.23,89,621/- as on 01.01.2000. Please note that the Hon'ble Company Law Board' has superceded the existing Board and have appointed a new Board, who have decided to take immediate steps to recover the amounts due to RBF Nidhi Limited. Sub: House Mortgage Loan No.253 for Rs.50,00,000/- On perusal of our records, it is seen that you had borrowed from RBF Nidhi Limited a sum of Rs.50,00,000/-on 18.03.93. The above loan has become due for repayment on 18.03.95. Please note that the principal outstanding is Rs.50,00,000/- and Interest Outstanding is Rs.43,40,820/- as on 31.01.2000. Please note that the Hon'ble Company Law Board' has superceded the existing Board and have appointed a new Board, who have decided to take immediate steps to recover the amounts due to RBF Nidhi Limited. 31/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Accordingly, you are requested to repay the aforesaid amount within Seven days on receipt of this letter. If there is any problem in making the repayment. in seven days, you may kindly meet Mr. A.R Rao, Chairman or the undersigned immediately along with this letter.Accordingly, you are requested to repay the aforesaid amount within Seven days on receipt of this letter. If there is any problem in making the repayment. in seven days, you may kindly meet Mr.A.R Rao, Chairman or the undersigned immediately along with this letter. 65. These letters were signed by K.J.Pappachan, Director of Company under liquidation after the Board of the Company under liquidation was superseded.66. These two letters have been replied by the Borrower vide Ex.A4 and Ex.A5 Services dated 16.02.2000. Ex.A4 dated 16.02.2000 is in response to Ex.C2 letter dated 10.02.2000 issued for HML.253. Ex.A4 dated 16.02.2000 reads as under:-Table-XRespected Sir,Sub: House Mortgage LoanNo.253.With reference to the above, I am in receipt of your letter dated 10.02.2000 and noted the contents.32/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022 I would like to submit the following facts for your kind perusal and consideration. . I mortgaged my property for Rupees 9 Lakhs which amounts have been paid, I have also availed a mortgage loan on HML No.52 by mortgaging other property for Rupees 9 lakhs. I have already repaid the above HML loans for Rupees 30,60,000/- in lumpsum and also paid Rupees 75 lakhs towards the above HML No.253 and HML No.52. I am enclosing a statement of payments as per our available records for our verification.Having paid so much amount and also due to economic recession on real estate business, we could not make further payments. Even though we have obtained receipts for our payments, we do not know on which account our payments nave been credited. Till 1995 we had been making payments regularly. In this connection we request your goodselves to verify your accounts. Since there is a tough economic recession in the real estate business we are struggling for our survival. Hence we are prepared to accept my liability within the permissible limit payable by the proposal after discussing the facts. 67. Thus, even according to Borrower as per Ex.A4 letter dated 10.02.2000 for two loans for Rs.9,00,000/- and Rs.9,75,000/-, the Borrower has paid a sum of Rs.1,05,60,000/- [Rs.30,60,000 + Rs.75,00,000].68. Ex.A5 has two letters dated 06.03.2000 in response to Ex.C1 dated 10.02.2000 and another letter dated 01.03.2000 of the Company under Liquidation. They reads as under:-33/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Table-XIEx.A5 letter dated 06.03.2000Ex.A5 letter dated 06.03.2000Respected Sir, SUB : Loan Account No. 253 I am in receipt of your notice dated 10.02.2000. I do not admit the amount mentioned in your notice as the outstanding in my account. The notice is without particulars.Respected Sir, SUB : Loan Account No. 52 I am in receipt of your notice dated 01.03.2000. I do not admit the amount mentioned in your notice as the outstanding in my account. The notice is without particulars.69. Copy of letter dated 01.03.2000 of the Company has been neither filed by the Borrower or the Office of the Official Liquidator. The case of the Borrower is that the Borrower had taken two loans earlier for Rs.9,75,000/- and Rs.9,00,000/- and had repaid the same and thereafter took a fresh loan for Rs.40,00,000/- during 1993 to 1995. It is the case of the Borrower that however, the promissory notes that were executed by the Borrower for the loans that were taken in the year 1990 to 1993 have been used by the Company under Liquidation to make it seen as if the Borrower had borrowed further amounts of Rs.41,00,000/-.34/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202270. According to the Office of the Official Liquidator, the Borrower has borrowed a total sum of Rs.99,75,000/- as detailed below:-Table-XIHML No.52253Total AmountPrincipal Amount 9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* Total49,75,00050,00,00099,75,000Interest at*22% #24%71. The defence in the Written Statement in C.S.No.916 of 2000 of the Company under Liquidation before it was transferred to the 1st Additional City Civil Court, Chennai is that the Borrower had borrowed a total sum of Rs.99,75,000/- under two Loan Accounts numbered as HML No.52 and HML No.253 respectively.72. As per the written statement and Ex.C1 and Ex.C2 dated 10.02.2000 of the Company under Liquidation, the amount due from the Borrower to the Company under Liquidation in respect of HML No.52 and HML No.253 as on 31.01.2000 are as under:- Table-XII 35/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Sl.No.ExhibitEx.C1 dt.10.02.2000Ex.C2 dated 10.02.2000HML.No.52253Total1 Principal Amount9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* Total49,75,00050,00,00099,75,0002Mortgage Loan AmountRs.39,96,359/- (as on 23.08.1990)Rs.50,00,000/-(as on 18.03.1993)89,96,3593Principal OutstandingRs.24,61,588/-Rs.50,00,000/-74,61,5884Interest OutstandingRs.23,89,621/-Rs.43,40,820/-67,30,4414(3+4)Total Outstanding as on 31.01.2000Rs.48,51,209/-Rs.93,40,820/-Rs.1,41,92,029 Interest at *22% Interest at #24%73. Thus, there is no clarity as to how Rs.49,75,000/- in HML.No.52 reduces to Rs.39,96,359/- as per Ex.C1 dated 10.02.2000 of the Company under Liquidation.74. Even according to the Office of the Official Liquidator, the Borrower has together paid a total sum of Rs.1,21,50,467/- in respect of the HML No.52 and HML No.253 as detailed below as is evident from the typed set of documents filed by the Office of the official liquidator along 36/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022with the C.A.No.1515 of 2007 in the year 2007 :-Table-XIIILoan A/C NoHML No.52HML No.253TotalTotal Principal Amount9,75,000#+15,00,000*+25,00,000*9,00,000*+41,00,000* 49,75,00050,00,00099,75,000Principal Paid25,13,412/--25,13,412/-Interest Paid38,07,797/-58,29,267/-96,37,064/-Total63,21,209/-(23.08.1990-16.08.2000)58,29,267/-(18.03.1993-16.08.2000)1,21,50,467/- 75. Whereas, according to the Borrower, the Borrower has repaid a sum of Rs.1,24,90,328/-. Thus, the issue that arises for consideration is whether the Borrower is entitled to redeem the mortgage after accepting the case that the Borrower has paid the amounts due under the respective Loan and whether indeed the borrower had taken a loan for Rs.41,00,000/- as argued by the Company under Liquidation.76. It is not out of place to mention that the C.S.No.916 of 2000 was filed by the Borrower on 21.11.2000 after the Company had issued Ex.C1 and C2 Notices both dated 10.02.2000 which were responded vide Ex.A4 Letter dated 16.02.2000 and Ex.A5 Series Letter dated 06.03.2000.37/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202277. In the Written Statement it is stated that under Loan Account No.52 the Borrower had borrowed initially a sum of Rs.9,75,000/- and thus created A1/R7 registered Simple Mortgage in respect of ‘A’ Schedule Property. It is further stated that the Borrower had subsequently borrowed further a sum of Rs.15,00,000/- and executed Ex.R6 Promissory Note dated 31.01.1993 for Rs.15,00,000/- along with Ex.R6 Memorandum of Deposit of Title Deed dated 01.02.1993 of ‘A’ schedule property in favour of the Company under Liquidation.78. It was further stated that the Borrower took another loan amount again borrowed a sum of Rs.25,00,000/- and executed Ex.R9 Promissory Note dated 13.05.1993 for Rs.25,00,000/- along with Ex.R9 Memorandum of Deposit of Title Deed dated 14.05.1993 of ‘A’ and ‘B’ Schedule Property. These borrowal are subject matter of HML No.52.79. It was further stated that under HML No.253, the Borrower had borrowed further amount of Rs.9,00,000/- and executed A2/R5 registered 38/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Simple Mortgage dated 16.03.1993 in respect of ‘B’ Schedule Property and subsequently borrowed another sum of Rs.41,00,000/- on 20.03.1993 and executed Ex.R4 Memorandum of Deposit of Title Deed dated 21.03.1993 of Schedule B Property. Details of the Loans are given below:-Table-XIV Loan Account No.52 SL.NoDateAmountEx.-ModeInterest122.08.1990 Rs.9,75,000/-A1/R7- Registered Simple Mortgage of ‘A’ Schedule property 22%231.01.1993 01.02.1993Rs.15,00,000/-R6-Demand Promissory Note dated 31.01.1993 24%R6-Memorandum of deposit of Title Deeds of ‘A’ Schedule Property dated 01.02.199324%313.05.1993 14.05.1993 Rs.25,00,000/-R9-Demand Promissory Note dated 13.05.1993 24%R9-Memorandum of deposit of Title Deeds of ‘A’ and ‘B’ Schedule property dated 14.05.199324% Loan Account No.253 416.03.1993 Rs.9,00,000/-A2/R5- Registered Simple Mortgage of ‘B’ Schedule Property24%520.03.1993 21.03.1993 Rs.41,00,000/-R3- Demand Promissory Note dated 20.03.1993 24%R4- Memorandum of deposit of Title Deeds of ‘B’ Schedule Property dated 21.03.1993 24%Total AmountRs.99,75,000/-/-39/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022 80. The defendant Company in its Written Statement stated that as on 31st July, 2001, the amount outstanding towards repayment of HML No.52 stood at Rs.66.26,962/- and the amount outstanding towards HML No.253 stood at Rs.1,29,65,126/- and thus the total amount outstanding was Rs.1,95,92,088/- as detailed below:- Table-XVLoan Account No.52 in (Rs.)253 in (Rs.)Total in (Rs.)The principal amount24,61,588.0050,00,000.0074,61,588.00Interest41, 19,782.0078,75,581.001,19,95,363.00interest, tax 45,592.00895451,35,137Total66,26,962.001,29,65,1261,95,92,088 81. The Borrower has relied on Ex.A11 counter filed in I.A.No.7719 of 2000 in O.S.No.2942 of 2000 before IV Additional City Civil Court to state that only a sum of Rs.53,04,674.85 was due in respect of HML No.52 as on 31.05.2000 and that in respect of the aforesaid loan the Borrower was making payments.82. It is submitted that in Ex.A11 which is a counter filed in I.A.No.7719 of 2000 in O.S.No.2942 of 2000, the amount due from the 40/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Borrower in respect of HML No. 52 and HML No 253 are as under:-Table-XVISl.No.HML.No.52 in (Rs.)52 +253 in (Rs.)1Total Outstanding as on 31.05.200053,04,674.851,55,18,166.30 83. A reference was made to paragraph 6, 9 & 10 of Ex.A11 Counter, which reads as under:-“6. The averments in para 5 with regard to another loan availed of by the petitioner on 22.3.1993 are incorrect. The amount borrowed by the petitioner was Rs. 41 lakhs and not 40 lakhs as stated by the petitioner. The claim that the pronote executed by the petitioner in respect of this loan was blank is false and denied. The payments set out in the said para are admitted except for the sum of Rs.4.00 lacs stated to have been paid on 16.4.94 by the petitioner. The scrutiny of the books of account as well the the bank statements disclose that the said amount has not been received. The total amount due and payable by the petitioner as against the aforesaid amounts as on 31.05.2000 is Rs.1,55,18,666.30/- 9. The averments in para 8 of the petitioners affidavit are repetitive and denied. It is however admitted that receipts were issued whenever amounts were paid by the petitioner and the same was credited. The claim of the petitioner that the mortgage in respect of the Schedule A property stands discharged is being made for the first time for the purpose of the case and is without basis for the purpose of the case and is without basis.41/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022 10. The averments in para 9 of the affidavit, to the effect that an oral request was made by the petitioner is false and denied. The letters dated 16.2.2000* and 6.3.2000# referred to by the petitioner are admitted. A mere reading of the contents of the letter dated 16.2.2000 would disclose that there were outstanding liabilities payable by the petitioner to the respondent. Even according to the the petitioner no payment has been made subsequent to 16.2.2000. It is once again reiterated that no request was made by the respondent for release of the document, since the same the in untenable in law and was therefore never made. The claim that there was no amount Payable by the petitioner to the respondent in respect of any "loan account" is false and denied. As on 31.5.2000 a total sum of Rs.1,55,18,166.30 is due and payable by the petitioner to the plaintiff in the two loan accounts maintained by the respondent.” * Ex.A4 # Ex.A5 84. The fact remains that Borrower has not denied that the Borrower was in arrears of amounts due to the company under liquidation prior to institution of O.S.No.2942 of 2000.85. As per Ex.A4 Letter dated 16.02.2000 in response to Ex.C2 – Letter dated 10.02.2000 for HML No.253, the Borrower has himself admitted that the Borrower has paid only a sum of Rs.30,60,000/- 42/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022and a further sum of Rs.75,00,000/- against HML No. 52 and HML No 253.86. In Ex.A4 Letter dated 16.02.2000, the Borrower has given an undertaking that he was prepared to accept any liability within the permissible limit payable by the proposal after discussing the facts. In the same letter the borrower has also admitted that due to economic recession in real estate business he could not make further payments. Thus, there is no denying that the Borrower has admitted to his liability. 87. There are also no clear records to show that Rs.75,00,000/- was paid by the Borrower towards the above HML No.52 and HML No.253. All that the Borrower has stated that he was not aware as to how the amounts paid were appropriated by the Company under Liquidation and that due to economic recession in the real estate business the borrower is struggling for survival to pay the balance.88. There are no evidence of any further payments by the Borrower to the Company under Liquidation. C.S.No.916 of 2000 was almost 43/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022immediately filed on 21.11.2000 after exchange of following communication:-Table-XVIIExhibitDateDescriptionC110.02.2000Letter issued by the Company to the Borrower demanding Rs.39,96,359/- in respect of HML.No.52C210.02.2000Letter issued by the Company to the Borrower demanding Rs.50,00,000/- in respect of HML.No.253A416.02.2000Certified copy of Letter of Borrower in response to Ex C1 letter dated 10.02.2000A506.03.2000Certified copy of Letter of the Borrower in response to letter dated 01.03.2000A607.05.2000Certified copy of the paper publication in one issue of Tamil Daily “Dina Malar”A707.05.2000Certified copy of the paper publication in one issue of English Daily “Hindu”A808.05.2000Certified Copy of the Legal Notice on behalf of the BorrowerA913.05.2000Certify copy of the Reply to the Legal Notice dated 08.05.2000. 89. That apart, the statement of the position as far as the amount due under the respective House Mortgaged Loan as per the Statement of the Official Liquidator corresponds with the amounts due as per the Company under liquidation in Ex.C1 & C2 both dated 10.02.2000 which have been replied by the borrower vide Ex.A4 letter dated 16.02.2000 & A5 letter dated 06.03.2000 as mentioned above.44/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202290. The principal outstanding as per the Statement of the Official Liquidator before this Court is that almost the same position that was taken by the Company under liquidation in Ex.C1 and Ex.C2 both dated 10.02.2000 as detailed below:- Table-XVIIISl.No.ExhibitC1C2TotalClaim of the Office of the Official LiquidatorTotalHML.No52253 52253 1Mortgage Loan AmountRs.39,96,359* Rs.50,00,000# 89,96,35949,75,00050,00,00099,75,0002Principal OutstandingRs.24,61,588Rs.50,00,00074,61,58824,61,598/-50,00,00074,61,5983Interest OutstandingRs.23,89,621Rs.43,40,82067,30,44123,43,03542,50,14965,93,1844Total Outstanding as on 31.01.2000Rs.48,51,209Rs.93,40,8201,41,92,02948,04,633.9092,50,149.601,40,54,783*(as on 23.08.1990)#(as on 18.03.1993) 91. A reading of the Exhibits marked before this court indicate that there is no dispute with regard to the amount that were borrowed by the borrower from the Company under Liquidation. 45/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202292. The details of the amounts that were borrowed were in 5 tranches. As mentioned elsewhere during the course of this judgment. The 1st and 3rd loans were secured by Promissory Notes and Registered Simple Mortgages of Schedule A and Scheduled B properties. 93. The 2nd and the 5th loans for a total sum of Rs.40,00,000/-(15,00,000 + 25,00,000) which were treated as a part of HML No.52. They were secured by promissory notes and equitable mortgages created by deposits of title deeds of Schedule A and Scheduled B properties.94. Though, the documents mentioned above have been marked as Exhibits during the course of Trial before the Learned Master by the RW-1 on behalf of the company under liquidation, it is evident from a reading of the Written Statement dated 31.7.2001 filed in C.S.No. 916 of 2000 before this court (before it was transferred to the 1st Additional Civil Court, Chennai and re-numbered as O.S.No. 6891 of 2010, the Company under Liquidation has not alluded to the R8 dated 23.08.1990 and R2 Promissory Note dated 18.03.1993 against loan for Rs.9,75,000/- and Loan for Rs.9,00,000/-.46/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202295. In the written statement, it was stated by the Company under Liquidation that, the Borrower had obtained loans in respect of the above 2 loans by executing a registered Simple Mortgage of Schedule A and Scheduled B Properties.96. The Borrower in Ex.A4 Letter dated 16.2.2000 has admitted defaults committed by him by stating that due to economic recession further payments could not be made by the Borrower to the Company under Liquidation and requested for rendition of Accounts, the content of which has been extracted above in respect of both HML No.52 & HML No.253.97. In fact, in Ex.A8 Legal Notice dated 08.05.2000 issued to the Company under liquidation on behalf of the Borrower also, there is an admission by the Borrower that amounts were borrowed in 4 tranches except for a Sum of Rs.41,00,000/-.98. In Ex.A8 Legal Notice dated 08.05.2000, the borrower has stated 47/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022that the borrower has repaid a sum of Rs.22,84,588/- towards HML No. 52 as on 21.12.1993 as against a required amount of Rs.16,72,125/- and therefore an amount of Rs.6,12,463/- was paid in excess by the Borrower towards HML No.21000052.99. In Ex.A8- Legal notice dated 08.05.2000, the borrower has also alluded to Ex.A4 letter dated 16.02.2000 and Ex.A5 Letter dated 06.03.2000, wherein the company under liquidation was called upon to furnish the Statement of Account.100. It is perhaps in this background, the borrower filed O.S.No. 2942 of 2000 against the company under liquidation. The suit purportedly was filed for Rendition of Account and for a permanent injunction to restrain the company under liquidation from selling the Schedule A and Schedule B Property of the Borrower which was offered as security.101. In O.S.No. 2942 of 2000, the borrower had also filed I.A.No. 7719 of 2000 and secured an interim order on 07.06.2000 to restrain 48/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022the Company under liquidation, from proceeding with the proposed auction of Schedule A & B Property of the Borrower. The aforesaid application was ordered by the IV Additional City Civil Court, subject to the condition that the borrower deposits sum of Rs.5,00,000/- to the credit of the aforesaid suit.102. The status of O.S.No. 2942 of 2000 filed before the IV Assistant City Civil Court, Chennai has not been informed either by the Borrower or the office of the official liquidator. However, it is evident that C.S.No. 916 of 2000 was filed on 21.11.2000 after securing order on 07.06.2000 in I.A.No. 7719 of 2000 in O.S.No. 2942 of 2000.103. The amounts that were repaid by the Borrower to the Company under Liquidation under the respective loans as per the case of the Borrower under HML No.52 and HML No.253 can be summarized as detailed below:- Table-XXSl.NoLoan Account No.52253Grand Total1Loan AmountRs.9,75,000Rs.9,00,000P.N Loans Rs. 58,75,00049/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Rs.40,00,000*TotalRs.9,75,000Rs.49,00,0002Loan Amount repaid as per Ex.A4 Letter dated 16.02.2000 Rs.30,60,000Rs.75,00,000 Rs.1,05,60,0003Loan Amount repaid as per Ex.A8 Legal Notice dated 08.05.2000Rs.22,48,588 4Loan Amount repaid as per PlaintRs.38,53,516Rs.86,36,812Rs.1,24,90,328/- *Rs.40,00,000/-[Rs.25,00,000 + Rs.15,00,000] under Promissory Notes104. A reading of Ex.A4 dated 16.2.2000 issued by the Borrower to the Company under Liquidation indicates that the Borrower admits having paid certain amounts against HML No. 52 and HML No 253 which would also include the 2 other loans for a sum of Rs.40,00,000/- (15,00,000+25,00,000).105. The position that emerges from a cumulative reading of the documents marked as Exhibits before this court indicate that the Borrower has paid a sum of Rs.38,53,516/- as stated in the plaint against HML No.52.106. Whereas in Ex.A8 Legal Notice dated 08.05.2000, the 50/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Borrower has stated that the Borrower has repaid only a sum of Rs.22,84,588/- paid towards the aforesaid loan in HML No.52. Thus, there is contradiction.107. In the Plaint, the Borrower has stated that against a sum of Rs.49,00,000/- (9,00,000+15,00,000+25,00,000) against HML No.253 and 2 other loans on Promissory Notes, he has paid a sum of Rs.86,36,812/- and in all the borrower claims to have paid a total sum of Rs.1,24,90,328/- [Rs.38,53,516 + Rs.86,36,812]. This is without reference to the Loan of Rs.41,00,000/-.108. In Ex.A4 Notice dated 10.02.2000, the borrower has claimed to have paid a sum of Rs.30,60,000/- in lumpsum towards HML.No.253 and a further sum of Rs.75,00,000/- as against both HML No.52 and HML No.253. Thus, in all the amounts repaid is only Rs.1,05,60,000/- (Rs.30,60,000 + Rs.75,00,000).109. However, as per the plaint and Ex.A3 receipts the Borrower has claimed to have repaid a sum of Rs.1,24,90,328/-. The last date of payment 51/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022is 22.08.1998. Thereafter, there are no records of any other payment made by the Borrower. 110. In the typed set of document filed in Comp.A.No.1515 of 2007, the Office of the Official Liquidator also admits receipt of Rs.1,21,50,467/- from the Borrower. Thus, the borrower has actually paid a total sum of Rs.1,24,90,328/-.111. Thus, the Borrower has taken contradictory stand both with regard to the amounts borrowed from the Company under Liquidation and also the amounts that were repaid by the Borrower pursuant to the Ex.A4 Letter dated 16.02.2000 in response to Ex.C2 Letter dated 10.02.2000 and Ex.A8 Legal Notice dated 08.05.2000 and the plaint.112. The Borrower has not explained the amount of Rs.41,00,000/- borrowed. A schewed presentation of facts has been narrated in the plaint.113. The Office of the Official Liquidator on the other hand has claimed that the borrower has borrowed additionally a sum of 52/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Rs.41,00,000/- towards HML No.253.114. As per the Office of the Official Liquidator, in C.A.No. 431 of 2022 filed on 27.10.2022, the borrower has to pay a sum of Rs.1,40,54,753/- The details of claim in C.A.No. 431 of 2022 is as under:-Table-XXI HML No.52253Total AmountPrincipal Amount9,75,000+15,00,000+25,00,0009,00,000+41,00,000 Total49,75,00050,00,00099,75,000Principal Amount paid25,13,402-25,13,402Principal Amount due24,61,59850,00,00074,61,598Interest due15,75,41628,00,00043,75,416Penal Interest due7,18,117.9013,55,704.6020,73,822.50Interest Tax due49,51294,4451,43,957Total Amount due48,04,633.9092,50,149.601,40,54,783 115. As per the Company under Liquidation and the Office of the Official Liquidator the details of Loan availed and the Exhibits marked are as under :-Table-XXIHML.No52253Amount9,75,000/-15,00,000/-9,00,000/-41,00,000/-Date23.08.199031.1.1993**18.3.199320.03.199353/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 202201.02.1993# -Rs.15L22.03.1993Rs.41L**Interest22%24%24%24%P.N -Ex.NoR8*R6R2*R3Deed-Ex.NoA1/R7-do-A2/R5R4Date and Particulars of the Deed22.08.1990(Reg-Simple Mortgage-‘A’ Schedule)01.02.1993(MOD) –‘A’-Schedule16.03.1993(Reg-simple Mortgage-‘B’ Schedule)21.03.1993(MOD)-‘B’ ScheduleAmount 25,00,000/- Date 13.05.1993# P.N Ex.No R9 Deed Ex.No -do- 14.05.1993(MOD)-A+B Shedule TotalRs 9,75,000/-Rs.40,00,000/-Rs.50,00,000/-*ignored in written Statement filed by the Company**ignored by Office of the Official Liquidator#Borrower Disputes the date 116. In the Report dated June 2009 of the Office of the Official Liquidator filed in C.A.No.1515 of 2007, the Office of the Official Liquidator was unable to confirm Disbursal of Rs.41,00,000/- to the Borrower. Relevant portion of which is extracted below:-“4.That the Court has further directed the (Official Liquidator to write to the company bankers to find out if any payment has been made by M/s. RBF Nidhi Limited to the debtor during the year 1993. Accordingly the Official Liquidator has written to the 54/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Canara bank,Royapettah, Chennai-14. on 6.1.2009 and the bank vide reply dated 30.01.2009 has stated that the bank normally preserves 8 years old records and thereafter goes for destruction of records and that they are unable the furnish the requested records as the same pertains to the year 1993. A copy of the letter is enclosed herewith as Annexure 'A.” 117. In the Report dated June 2009 of the Office of the Official Liquidator there is a reference to the crystallization of the outstanding Principal amount alone as on 31.12.1999 in respect of which the outstanding Principal amount alone works out to Rs.74,61,588/-. Relevant portion of which is extracted below:-“8.That the Official Liquidator prays this Hon'ble Court to look in to the huge amount payable by him to the company in liquidation while considering the offer of settlement made by the respondent. The Official Liquidator submits that the committee of directors appointed by the Central Government Under Section 408 of Companies Act, 1956 have crystalised the outstanding as on 31.12.1999 in which case in respect of present application the amount outstanding will be Rs.74,61,588/.”118. The aforesaid loan for Rs.41,00,000/- to the Borrower is secured by Ex.R3 Promissory Note dated 20.3.1993 and Ex.R4 Deposit of Title 55/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Deed of Schedule ‘B’ Property dated 21.03.1993 of the Borrower. The Borrower has however disputed execution of Ex.R4 Deposit of Title Deed of Schedule ‘B’ Property dated 21.03.1993 of the Borrower in the counter filed in response to C.A.No.431 of 2022. However, they are sited by the Borrower.119. The fact remains that the Borrower has applied for Ex.R1 House Mortgage Loan on 28.02.1993 for a sum of Rs.50,00,000/-. The application was issued on 23.02.1993. This Rs.50,00,000/- is sub total of Rs.9,00,000/- +41,00,000/- of HML.No.253. Thus, the facts clearly emerges that the Borrower borrowed a sum of Rs.50,00,000/- consisting of Rs.9,00,000 + Rs.41,00,000. 120. Though the Office of the Official Liquidator is unable to confirm the disbursal of Rs.41,00,000/- to the Borrower, in Ex.C3 (though not marked before the Learned Master), Statement of Accounts and Interest Working Statement filed by the Borrower himself in C.A.No.1515 of 2007, before this Court on 29.06.2009 for approving the proposal made by the Borrower before the Official Liquidator for Settlement of Accounts at 56/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Rs.15,00,000/- in full and final Settlement of all the dues and to grant 3 months time for one-time Payment. 121. This offer was no doubt “without prejudice” to contention of the Borrower having received a Sum of Rs.41,00,000/- on 22.03.1993, towards Loan No.3. The Statement of Accounts and Interest Working Statement filed by the Borrower himself in C.A.No.1515 of 2007, before this Court on 29.06.2009 is extracted below :57/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022122. In the Report dated November 2009 of the Office of the Official Liquidator filed in C.A.No.1515 of 2007 there is also a reference to the admission that is said to have been made by the Borrower which is extracted below:-“That the respondent/debtor also has accepted the payment of Rs.41 lakhs from the company in liquidation as seen in page no.6 of the Statement of Accounts and interest workings dated 29.06.2009 58/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022under the heading loan No.3 filed by the respondent herein on 29.06.2009 before this Hon'ble Court.” 123. In Ex.A4 Letter dated 16.02.2000, the Borrower has also given only a apologetic reply to Ex.C2 Letter dated 10.02.2000 wherein he stated that he was prepared to accept any liability within the permissible limit payable by the proposal after discussing the facts.124. Thus, there is no doubt the borrower has borrowed Rs.41,00,000/- over and above Rs.9,00,000/ under HML No.253. The Office of the Official Liquidator is thus entitled to recover the balance amounts due from the Borrower against the aforesaid amounts advanced/loaned to the Borrower for a Total Sum of Rs.99,75,00,000/- [Rs.9,75,000+ Rs.15,00,000+ Rs.25,00,000+ Rs.9,00,000+ Rs.41,00,000].125. The fact remains that amounts are due. It is however not clear as to which of the loan were discharged at what point of time and how the payments were appropriated by the Company under Liquidation. This ought to have been brought up by the Office of the Official Liquidator, as it is too much to expect the borrower to assist the Court as the borrower is wrongly 59/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022claiming a refund of Rs.7,39,828/-. Therefore Office of the Official Liquidator is permitted to get back all the records from EOW Chennai-II. There is absolutely no merits in C.A.No.516 of 2011 (Formerly CS.No. 916 of 2000 renumbered as O.S.No 6891 of 2010). It is is liable to be dismissed.126. Admittedly there are multiple mortgages created by the Borrower in favour of the Company under liquidation in connection with the loans in HML.No.52 and HML.No.253. The details of HML.No.52 and HML.No.253 as has been explained as above. 127. Various company petitions that were filed starting from C.P.No.203 of 2004 to C.P.No.230 of 2004 on 17.10.2004 against the Company under Liquidation to wind it up. The company under Liquidation was eventually ordered to be wound up on 17.04.2006 in C.P.No.203 of 2004 to C.P.No.230 of 2004 by which time the Borrower had already filed C.S.No.916 of 2000 on 21.11.2000, to recover a sum of Rs.12,39,838/- from the Company under Liquidation allegedly due to the Borrower from the Company under Liquidation. The Borrower also wanted to redeem 60/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022mortgage of Schedule A & B Property without actually discharging the loan. 128. The Borrower filed C.S.No.916 of 2000 without discharging the liability under HML.No.52 and HML.No.253, C.S.No.916 of 2000. C.S.No.916 of 2000 filed by the Borrower was pre-mature. It was filed even though the right to sue had not accrued to the Borrower as the loans under HML.No.52 and HML.No.53 had not been fully discharged by the Borrower. This is evident from a reading of Ex.A4 Letter dated 16.02.2000 and Ex.A5 Series Letter dated 06.03.2000 of the Borrower in response to Ex.C2 Notice dated 10.02.2000 and Notice dated 01.03.2000 of the Company under Liquidation and Ex.A8 Legal Notice dated 08.05.2000 of the Borrower.129. In all the above mentioned Exhibits, there are admissions of liability by the Borrower though the Borrower has not clearly explained what was the amount that was due and payable by the Borrower to the Company under Liquidation. The Borrower however requested the Company under Liquidation for negotiation to close the loans owing to his 61/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022economic conditions.130. Part V of First Division of the Limitation Act, 1963 prescribes the period of limitations in respect of suits relating to immovable property. Article 62 of the Limitation Act, 1963, pertains to a suit to enforce payments of money secured by a mortgage or otherwise charged upon immovable property by a mortgage. The period of limitation prescribed is twelve (12) years. The limitation begins to run from the date when the money sued for becomes due.131. It cannot be therefore said that after initiation of C.S.No.916 of 2000 on 21.11.2000, the limitation for right to sue for money commenced or right to sue for foreclosure of mortgage under HML No.52 and HML No.253 expired immediately after the written statement in C.S.No.916 of 2006 was filed. 132. The argument that Comp.A.No.431 of 2022 or for that matter Comp.A.No.1515 of 2007 were barred in view of limitation prescribed under Article 62 of the Limitation Act, 1963 cannot be countenanced 62/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022merely because no counter claim was filed along with the written statement in C.S.No.916 of 2000. The limitation for the Company under liquidation under Article 63 of the Limitation Act, 1963 cannot be reduced merely becaue C.S.No.916 of 2000 was filed on 21.11.2000 by the Borrower prematurely contrary to the admissions in Ex.A4 Letter dated 16.02.2000 and Ex.A5 Series Letter dated 06.03.2000 of the Borrower in response to Ex.C2 Notice dated 10.02.2000 and Notice dated 01.03.2000 of the Company under Liquidation and Ex.A8 Legal Notice dated 08.05.2000 of the Borrower.133. In fact, the Company under Liquidation is entitled to sell the Schedule A & B Property under Section 69 of the Transfer of Property Act, 1882. The Company under Liquidation as a “Mortgagee” has a period of limitation of 30 years to file a suit for foreclosure of rights under the mortgages in terms of Article 63 in Part V of the Limitation Act, 1963.134. In computing the period of limitation for suit or application in the name and/or on behalf of the company which is being wound up, the period from the date of commencement of the wounding up of the company 63/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022to the date on which the wounding up order is made both inclusive and a period of one year immediately following the date of wounding up order shall be excluded. Either, C.A.No.1515 of 2007 that was filed on 01.06.2007 or C.A.No.431 of 2022 that was filed later on 27.10.2022 cannot be said that they were barred by limitation as the loan had not been repaid or liability discharged. 135. It cannot be said that limitation for the right to sue to recover money or for right to sue for foreclosure of mortgage under HML.No.52 and HML.No.253 had commenced on the date of written statement filed in C.S.No.916 of 2000. Thus, there is no merits in the submission of the Borrower.136. Since the period of limitation cannot be said to have expired, the Company under Liquidation through the Office of the Official Liquidator is thus entitled to enforce its rights over the mortgaged property as the Borrower failed to discharge the loan.137. C.A.No.431 of 2022 is therefore disposed by directing the 64/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022Office of the Official Liquidator to file a fresh report giving the correct particular of the amounts paid by the Borrower, appropriated and balance payable.138. The Office of the Official Liquidator may also take the assistance of a Chartered Accountant to look into the accounts in case of any complication and thereafter file a fresh report before this Court to recover the balance amount from the Borrower. 139. If there are no dues payable to any other creditors of the Company under liquidation and if the amounts have also been already paid to the contributories of the Company under liquidation, the Borrower may be given an option to settle the balance amount after due negotiation taking note of downward revision of bank rates in the later years.140. In the light of the above discussions the issues framed are answered as under:-1.Whether the plaintiff* (Borrower) is entitled to redemption of mortgage in respect of ‘A’ 65/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022schedule property?Ans: No2.Whether the plaintiff* (Borrower) is entitled to redemption of mortgage in respect of ‘B’ schedule property?Ans: No3.Whether the discharge pleaded by the defendant# (Company under Liquidation) is true?Ans: To be decided after a fresh report is filed by the Office of the Official Liquidator based on the observations based on the observations contained herein4.Whether the defendant# (Company under Liquidation) is liable to repay the amount as alleged in the plaint?Ans:Yes. Subject to fresh report of the Office of the Official Liquidator5. What is the amount due to the defendant# (Company under Liquidation)?Ans:To be decided after a fresh report is filed by the Office of the Official Liquidator6.To what other relief? Ans:Nil for the present.141. In the result, i.C.A.No.516 of 2011 (formerly CS. No. 916 of 2000 renumbered as 66/68 https://www.mhc.tn.gov.in/judis Comp.A.No.516 of 2011 and Comp.A.No.431 of 2022O.S.No. 6891 of 2010) is dismissed.ii.C.A.No.431 of 2022 is disposed with the above observation.iii.EOW Chennai-II is directed to return the originals to the office of the Official Liquidator for further action in this regard. iv.No cost.21.06.2024jen/rgmC.SARAVANAN, J.jen/rgm67/68