E. Pazhani Nattar vs S. Ezhumalai and Others

Raju, J.—The above writ petition has been filed for the issue of a writ of certiorari to call for the records and, quash the proceedings of the

second respondent in R.C.A. No. 1/26205/1982, dated 23.9.1983 and of the third respondent in Pa.Mu.Ka.Ni.Ma.No.715 of 1980, dated

20.10.1982.

The petitioner, in the affidavit filed in support of the writ petition, states that the first respondent borrowed a sum of Rs. 6,000 from the petitioner

under a registered mortgage deed dated 13.9.1973 undertaking to repay the same with interest at 12% per annum. The copy of the mortgage

deed produced in the typed set discloses that the total extent of lands mortgaged was about 4.61 acres with well and electrical pump set with

installations and that even as on the date of the mortgage, the property was said to be of the value of Rs. 20,000. The first respondent did not

discharge the mortgage, but moved the third respondent by means of an application u/s 6(1)(a) of the Tamil Nadu Debt Relief Act, 1980 for

certificate of release and redemption on the ground that he was entitled to the benefits of the said Act. It was his claim that he receives only an

annual income of Rs. 3,500 and he has sold about two acres of land and that the remaining land would be worth Rs. 17,000 only and further he

was living in a rented house. On that basis, the first respondent claimed relief. The third respondent, on the view that though time was granted to

enable the petitioner to produce materials to substantiate his claim that the mortgaged properties were of the value of Rs. 50,000 and add has not

produced such materials, sustained the claim of the first respondent and allowed release and discharge, Aggrieved, the petitioner has filed an

appeal"" before the second respondent. The second respondent also merely placed reliance upon the certificate of the Tahsildar regarding the

income of the first respondent and held that the petitioner has not proved that the first respondent was in possession of properties worth more than

Rs. 25,000. Aggrieved, the above writ petition has been filed.

Mr. P.R. Selvaraj, learned Counsel appearing for the petitioner, contended that the orders of the authorities below are vitiated since there was

no proper or judicious or objective consideration of the issues involved and that neither the value of the property was properly determined nor

there was any proper application of mind altogether. The learned Counsel for the first respondent Mr. Muthukumaran vehemently contended that

having regard to the fact that the orders of the authorities below were concurrent, this court may not be pleased to interfere with those orders in

exercise of the jurisdiction under Article 226 of the Constitution of India which according to the learned Counsel is discretionary.

I have carefully considered the submissions of the learned Counsel appearing on either side. In my view, respondents 2 and 3 have miserably

failed to be alive to the duties and responsibilities cast upon those authorities under the statute. Respondents 2 and 3 ought to have seen that the

orders passed by them have the effect of depriving substantial rights of parties involving civil consequences on the claims of the creditors for

necessary of money due and, therefore, the functions and duties are expected to be discharged with a high degree of responsibility. So far as the

case on hand is concerned, the debt in respect of which the discharge and release was claimed was a mortgage and the deed itself contained the

description of the property, the extent and the rough valuation as on the date of the mortgage. It is common knowledge that the value of the

properties were ever on the increase, though the parties are obliged to substantiate the extent of such increase in any individual case. From the

order of the third c respondent, it is seen that the first respondent claims to have sold about 2 acres of land and that the remaining land even

according to him would, be of the value of Rs. 17,000. There is no controversy over the fact that no copy of the sale deed to support the claim of

the alleged sale of two acres of land has been produced before the authorities. In the light of such a position, and each having regard to the

valuation admitted of the remaining lands, the third respondent failed to properly advert to the question of valuation and discharge his duties

judiciously and properly by due application of mind by objective standards. That apart, the third respondent does not appear to have taken into

account the value of the well as well as of the value of electrical installations. All these are matters which ought to have been taken into account by

respondents 2 and 3, in determining the value of the assets of the first respondent before according the relief to a debtor. Maybe, in a case where

there is no proof of possession of any properties, the burden will be heavy on the part of the creditor to substantiate that the debtor was in

possession of the properties worth more than Rs. 25,000. But, in this case, as pointed out earlier, the debt itself is a mortgage debt and the

description and other details of the properties are available very much in the copy of the mortgage deed itself. If that be the position, de hors the

attempt, if any made by the Creditor, the authorities themselves have duties and obligation to assess properly the value of the properties with the

knowledge and resources that they have as authorities of the Revenue Department at the taluk level. The debtor also is not totally exonerated of his

liability to place particulars about the value of the properties which he admittedly mortgaged. No attempt has been made by the first respondent

also even to produce evidence regarding the alleged sale of a portion of the property. All these aspects would go to show that the consideration by

the statutory authorities viz., respondents 2 and 3 vested with quasi-judicial powers have been more in a slipshod and perfunctory manner and final

orders were passed in such cursory manner, without due or judicial and judicious application of mind and consequently such orders cannot have

the approval of this court even while exercising jurisdiction under Article 226 of the Constitution of India. Perversity of a preach and non-

application of mind are writ large on the impugned orders. Consequently, the impugned orders are hereby quashed. The third respondent is

directed to restore the application filed by the first respondent to its file and dispose of the same afresh in accordance with law, after giving due

opportunity to the parties concerned. The writ petition shall stand allowed to the extent indicated above. No costs.