N. Govindaswami vs R. Bakkim

S. Nainar Sundaram, J.—The petitioner in O.P. No. 344 of 1980 on the file of the X Assistant Judge, City Civil Court, Madras, is the

petitioner in this revision. The respondent herein, is the respondent in the said Original Petition. The petitioner is a mortgagor in respect of two

mortgages, one dated 29th July, 1974 marked in this case as Exhibit R-5 and the other, dated 7th May, 1975 marked in this case as the Exhibit R-

Principal amount secured under the first mortgage is Rs. 15,000 and the principal amount secured under the second mortgage is Rs. 10,000 The

rate of interest stipulated under the first mortgage is 12 per cent per annum and the rate of interest stipulated under the second mortgage is 15 per

cent per annum. The respondent is the mortgagee. The petitioner filed O.P. No. 344 of 1980 u/s 83 of the Transfer of Property Act depositing a

sum of Rs. 29,000 as the amount remaining due nnder both the mortgages This quantum, the petitioner arrived at as the correct quantum by stating

that he is entitled to the benefits of Tamil Nadu Act XXXVIII of 1972, in respect of the mortgage dated 29th July, 1974 under Exhibit R-6, In

fact, the petitioner filed O.P. No. 102 of 1980 claiming the benefits under Tamil Nadu Act XXXVIII of 1972, in respect of the mortgage, dated

29th July, 1974 under Exhibit R-6. The respondent, the mortgagee disputed the quantum and disputed the claim of the petitioner for reliefs under

Tamil Nadu Act XXXVIII of 1972. The Court below nagatived the pleas of the petitioner for relief under Tamil Nadu Act XXXVIII of 1972. The

Court below also dismissed O.P. No. 344 of 1980 not accepting the case of the petitioner that the amount deposited by him represents the correct

amount due on the relevant date under the two mortgages. As stated above, this revision is directed against the decision in O.P. No. 344 of 1980.

There is no further agitation as against the decision in O.P. No. 102 of 1980.

Section 83 of the Transfer of Property Act has got a specific purpose to serve the plain language of that provision indicates. The said section

ruas thus:

At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged

property is barred, the morgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such

suit, to the account of the mortgagee the amount remaining due on the mortgage.

The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition

(verified in manner prescribed by law for the verification of plaints) stating the amounts then due on the mortgage, and his willingness to accept the

money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage-deed and all documents in his possession

or power relating to the mortgage property, apply for and receive the money, and the mortgage-deed and all such other documents so deposited

shall be delivered to the mortgagor or such other person as aforesaid.

Where the mortgagee is in possession of the mortgaged property, the Court shall, before paying to him the amount so deposited, direct him to

deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re- transfer the mortgaged property to the mortgagor or to

such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered

an acknowledgment in writing that any right in derogation of the mortgagor''s interest transferred to the mortgagee has been extinguished.

The above provision enables a mortgagor to deposit into Court the amount remaining due to the mortgage. On receipt of the notice from the

Court, it is up to the mortgagee on presenting a petition, to state the amount then due under the mortgage and his willingness to accept the money

so deposited in full discharge of such amount, and on the mortgagee depositing in the said Court the mortgage deed and all documents in his

possession or power relating to the mortgaged property, he can apply for and receive the money. Consequently, the mortgage deed and all such

other documents so deposited shall be delivered to the mortgagor or such other person referred to in the provision. The third part of the provision

relates to the delivery of possession of the mortgaged property and re-transfer etc. If the mortgagee does not accept the money deposited into

Court and does not signify his willingness to accept the same in full discharge of the amount due under the mortgage, the Court has no obligation to

enter into an enquiry as to whether the amount deposited by the mortgagor represents the correct amount due under the mortgage. Such an enquiry

is alien to Section 83 of the Transfer of Property Act. The contingency for such an enquiry will arise only in subsequent proceedings, when the

mortgagor dissatisfied with the action of the mortgagee takes appropriate legal proceedings for the enforcement of his rights. This being the import

and implication of Section 83 of the Transfer Property Act, I am of the view that the Court below need not have gone into the question as to

whether the amount deposited was the proper amount due under the mortgages concerned. Anyway, the petition having been dismissed by the

Court below, I have to uphold the same for the reasons expressed by me above.

Mr. M. Kumaraswami, learned Counsel for the petitioner, draws may attention to a Judgment of Venkataramana Rao, J., in Narayanaswami

Nayak and Another Vs. Ramaswami Nayak and Others, , to state that the question of the correctness of the quantum deposited can be gone into

by the Court. In my view, learned Counsel has not adverted to the nature of the proceedings regarding which the decision was rendered by the

learned Judge. In that case, the question arose in a regular second appeal directed against a first appeal arising of a suit. There is nothing in the

decision of the learned Judge to spell out the proposition that u/s 83 of the Transfer of Property Act an enquiry and a decision as desired by the

petitioner could be gone into and rendered. For my view, I have the support of the Judgment of Harwill, J., in Ramakrishnaiah v. Krushi Vidyalaya

Sangam (1944) 2 M.L.J. 284 : 57 L.W. 351 : AIR 1945 Mad. 46, where the lrarned Judge held that such an enquiry is beyond the scope of

Section 83 of the Transfer of Property Act, because the Court has not to give any finding at all on any question when a mortgagee refused to

receive the sum tendered and Horwill, J. also referred to the judgment of Venkataramana Rao, J. in Narayanaswami Nayak and Another Vs.

Ramaswami Nayak and Others, and pointed out that Venkataramana Rao, J. did not any where in his judgment say that such an enquiry was

within the scope of Section 83 of the Transfer of Property Act. Accordingly, this civil revision petition is dismissed. There will be no order as to

costs.