The Income Tax Officer, Nagercoil, Kanyakumari District. Nagercoil, Kanyakumari District v. Revision

C.R.P.(MD)Nos.2518 of 2024 and its batch BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Judgment Reserved OnJudgment Pronounced On 24.10.2024 03.02.2025 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY C.R.P(MD)Nos. 2518, 1846 of 2024 andC.M.A(MD)Nos. 1413, 1414, 1349 of 2024andC.M.P(MD)Nos.10453, 14558, 14450 ,14459,14463,14465, 14466, 14611, 14615, 14825 of 2024 C.R.P(MD)No. 2518 of 2024 V.S.Rethinakumari 1. S.R.Ratheesh 2. P.Robert Raj 3. The Income Tax Officer, Nagercoil, Kanyakumari District. Nagercoil, Kanyakumari District. Vs. ... Revision petitioner 4. The District Registrar, Nagercoil, Kanyakumari District. Nagercoil, Kanyakumari District. 5. The District Registrar, Marthandam, Kanyakumari District. Marthandam, Kanyakumari District. 1/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 6. The Competent Authority and District Revenue Officer, Kanyakumari District, Nagercoil. 7. The District Collector, State of Tamil Nadu, Nagercoil....Respondents [Respondents 3 to 7 are Impleaded as Per the Order of this Court, dated 30.10.2024] PRAYER :Civil Revision Petition filed under Section 115 of Civil Procedure Code, to set aside the Fair and Decreetal order passed in E.A.No.41 of 2018 dated 12-01-2023 in E.P.No.4 of 2016 in O.S.No.106 of 2011 on the file of the Principal District Court, Kanniyakumari at Nagercoil. C.R.P(MD)No. 1846 of 2024 V.S.Rethinakumari ... Vs. Revision petitioner 1. P.Robert Raj 2. S.R.Ratheesh ... Respondents PRAYER : Civil Revision Petition filed under Section 115 of Civil Procedure Code, to set aside the Fair and Decreetal order passed in E.A.No.8 of 2023 dated 06.02.2024 passed in E.P.No.4 of 2016 in O.S.No.106 of 2011 on the file of the Principal District Court, Kanniyakumari at Nagercoil and allow this Civil Revision Petition. 2/100 C.M.A(MD)No. 1349 of 2024 V.S.Rethinakumari ... Appellant Vs. 1. S.R.Ratheesh 2. P.Robert Raj ... Respondents [2[nd] Respondent is impleaded as per Order of this Court 28.11.2024] PRAYER : Civil Miscellaneous Appeal filed under order 43 rule 1 of Civil Procedure Code, to allow the Civil Miscellaneous Appeal with cost by setting aside the fair and decreetal order passed in E.A.No.40 of 2018 dated 08.07.2021 in E.P.No.4 of 2016 in O.S.No.106 of 2011 on the file of the Principal district Judge, Kanniyakumari District at Nagercoil, set aside the same and allow this Civil Miscellaneous Appeal. C.M.A(MD)No. 1413 of 2024 1. Palliyadi Retna Chit Fund Private Limited, Kanniyakumari District, Kanniyakumari District, S. Kanagaraj (Late) 2. V.S.Retna Kumari 3. K.Penkar Semalin 4. K.Askar Sahaskon 5. K.Helton God Rimlet 6. K.Kenttar Kranglinkanik 7. K.Johnskar Sibiraidili ...Appellants Vs. 3/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 1. The Competent Authority and District Revenue Officer, Kanniyakumari District. Kanniyakumari District. 2. A.R.Boothalingam Pillai 3. The Branch Manager, Tamilnadu Mercantile Bank, Palliyady Branch, Palliyady. 4. The Branch Manager, Indian Overseas Bank, Kottar, Nagercoil - 629002. 5. The Deputy Superintendent of Police, E.O.W.II, Nagercoil, Kanniyakumari District. Kanniyakumari District. 6. The Inspector of Police, E.O.W.II, Nagercoil, Kanniyakumari District. E.O.W.II, Nagercoil, Kanniyakumari District. 7. The Deputy Registrar of Chits, (Arbitration) Nagercoil, Kanniyakumari District. Nagercoil, Kanniyakumari District. 8. The Deputy Registrar of Chits, (Arbitration), Marthandam, Kanniyakumari District. Marthandam, Kanniyakumari District. ...Respondents 2. A.R.Boothalingam Pillai 3. The Branch Manager, Tamilnadu Mercantile Bank, Palliyady Branch, Palliyady. 4. The Branch Manager, Indian Overseas Bank, Kottar, Nagercoil - 629002. 5. The Deputy Superintendent of Police, E.O.W.II, Nagercoil, Kanniyakumari District. Kanniyakumari District. 6. The Inspector of Police, E.O.W.II, Nagercoil, Kanniyakumari District. E.O.W.II, Nagercoil, Kanniyakumari District. 7. The Deputy Registrar of Chits, (Arbitration) Nagercoil, Kanniyakumari District. Nagercoil, Kanniyakumari District. 8. The Deputy Registrar of Chits, (Arbitration), Marthandam, Kanniyakumari District. Marthandam, Kanniyakumari District. ...Respondents PRAYER: Civil Miscellaneous Appeal filed under section 11 of Tamil Nadu Protection of Interest of Depositors (In Financial Establishments) Act, to allow this Civil Miscellaneous Appeal and modify the order passed by the Special Court for trial of TNPID Cases, Madurai in O.A No.4 of 2015 dated 31.08.2021. 4/100 C.M.A(MD)No. 1414 of 2024 1. Palliyadi Retna Chit Fund Private Limited, Kanniyakumari District, S. Kanagaraj (Late). Kanniyakumari District, S. Kanagaraj (Late). 2. V.S.Retna Kumari 3. K.Penkar Semalin 4. K.Askar Sahaskon 5. K.Helton God Rimlet 6. K.Kenttar Kranglinkanik 7. K.Johnskar Sibiraidili ...Appellants Vs. - 1. Tamil Nadu Mercantile Bank Limited, Represented by its Branch Head, Palliyadi Branch. Palliyadi Branch. 2. The Competent Authority/ District Revenue Officer, Kanniyakumari District.... Respondents PRAYER: Civil Miscellaneous Appeal filed under section 11 of Tamil Nadu Protection of Interest of Depositors (In Financial Establishments) Act, to allow this Civil Miscellaneous Appeal and set aside the orders passed by the Special Court for trial of TNPID cases, Madurai in IA No.61 of 2016 in O.A. No.4 of 2015 dated 31.08.2021 and to revoke the auction sale conducted by the 1[st] respondent/Tamilnadu Mercantile Bank Limited, Palliyadi Branch in respect of 9 items of properties forming part of the properties attached by the Government in G.O.Ms.No.872 Home (Police XIX) Department, dated 12.11.2012, scheduled herein below. 5/100 C.R.P.(MD)Nos.2518 of 2024 and its batch COMMON ORDER The issue in C.R.P.(MD)No.2518 of 2024, C.R.P.(MD)No.1846 of 2024 and C.M.A.(MD)No.1349 of 2024, C.M.A.(MD)No.1413 of 2024 and C.M.A.(MD)No.1414 of 2024 are arising out of common facts. Hence all the cases are tagged together and common order is passed. 2.(i). Heard Mr.P.Prabhakaran, the Learned Counsel appearing for the Revision Petitioner and Mr.M.Natarajan, the Learned Counsel appearing for the 1[st ]respondent, Mr.K.P.Narayana Kumar, the Learned Counsel appearing for the 2[nd ]respondent, Mr.Parekh Kumar, the Learned Counsel appearing for the 3[rd] respondent, Mr.C.Satheesh, the Learned Government Advocate appearing for the respondents 4, 5, 6 and 7 in CRP(MD)No.2518 of 2024. 6/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 2.(ii) Heard Mr.P.Prabhakaran, the Learned Counsel appearing for the appellant, Mr.A.R.M.Ramesh, the Learned Counsel appearing for the 3[rd] respondent, Mr.Dilip Kumar, the Learned Counsel appearing for the 4[th] respondent, Mr.C.Satheesh, the Learned Government Advocate appearing for the respondents 1, 5, 6 and 7 in CMA(MD)No.1413 of 2024. 3.(i) The C.R.P.(MD)No.2518 of 2024 was filed by the defendant V.S.Rethinakumari (in O.S.No.106 of 2011) against the order, dated 12.12.2023 passed in E.A.No.41 of 2018 in E.P.No.4 of 2016 in O.S.No.106 of 2011. The said E.A.No.41 of 2018 was filed under Order 21 Rule 90 inter alia praying to set aside the court auction sale held on 01.03.2018. 6/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 2.(ii) Heard Mr.P.Prabhakaran, the Learned Counsel appearing for the appellant, Mr.A.R.M.Ramesh, the Learned Counsel appearing for the 3[rd] respondent, Mr.Dilip Kumar, the Learned Counsel appearing for the 4[th] respondent, Mr.C.Satheesh, the Learned Government Advocate appearing for the respondents 1, 5, 6 and 7 in CMA(MD)No.1413 of 2024. 3.(i) The C.R.P.(MD)No.2518 of 2024 was filed by the defendant V.S.Rethinakumari (in O.S.No.106 of 2011) against the order, dated 12.12.2023 passed in E.A.No.41 of 2018 in E.P.No.4 of 2016 in O.S.No.106 of 2011. The said E.A.No.41 of 2018 was filed under Order 21 Rule 90 inter alia praying to set aside the court auction sale held on 01.03.2018. 3.(ii) The C.R.P.(MD)No.1846 of 2024 was filed by the defendant V.S.Rethinakumari (in O.S.No.106 of 2011) against the order dated 06.02.2024 passed in E.A.No.8 of 2023 passed in E.P.No.4 of 2016 in O.S.No.106 of 2011. The E.A.No.8 of 2023 was filed by the auction purchaser under Order 21 Rule 95 inter alia praying to delivery of possession of schedule of property through Court Amin. 7/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 3.(iii) The C.M.A.(MD)No.1349 of 2024 was filed by the defendant V.S.Rethinakumari (in O.S.No.106 of 2011) against the order, dated 08.07.2021 passed in E.A.No.40 of 2018 in E.P.No.4 of 2016 in O.S.No.106 of 2011. The said E.A.No.40 of 2018 was filed under Order 21 Rule 106 read with section 151 of CPC inter alia praying to set aside the exparte order dated 28.04.2016 passed in E.P.No.4 of 2016 in O.S.No.106 of 2011. 3.(iv) The C.M.A.(MD)No.1413 of 2024 was filed by the respondent V.S.Rethinakumari (in O.A.No.4 of 2015) against the order, dated 31.08.2021 passed in O.A.No.4 of 2015. The said O.A.No.4 of 2015 was filed by the Competent Authority under section 4 of TNPID Act inter alia praying to make absolute the attachment order in G.O.Ms.No.872 Home (Police XIX) Department dated 12.11.2012. 3.(v) The C.M.A.(MD)No. 1414 of 2024 was filed by the respondent V.S.Rethinakumari (in O.A.No.4 of 2015) against the order, dated 31.08.2021 passed in I.A.No.61 of 2016 in O.A.No.4 of 2015. The said I.A.No.61 of 2016 in O.A.No.4 of 2015 was filed by Tamil Nadu Mercantile Bank inter alia praying to declare that 8/100 C.R.P.(MD)Nos.2518 of 2024 and its batch the Bank has first charge over the properties schedule in G.O.Ms.No.872 dated 12.11.2012 subject to prior mortgage. 4. FACTS IN C.R.P.(MD)NO.2518 OF 2024, C.R.P.(MD)NO.1846 OF 2024 and C.M.A.(MD)NO.1349 OF 2024: The defendant/Judgment debtor V.S.Rethinakumari in the suit is the revision petitioner herein. The plaintiff/decree holder S.R.Ratheesh in the suit is the 1[st] respondent herein. The auction purchaser P.Robert Raj is the 2[nd] respondent herein. Subsequently, respondents 3 to 7, who are Income Tax Officer, District Registrar of Registration Department and Revenue Officials, were impleaded as respondents 3 to 7 as per Order of this Court, dated 30.10.2024 since they are necessary parties for adjudication. 5. The E.A.No.41 of 2018 was filed by V.S.Rethinakumari (the defendant in the suit in O.S.No.106 of 2011) under order 21 Rule 90 and Section 151 of Civil Procedure Code to set aside the Court Auction Sale held on 01.03.2018 and the same was dismissed. Aggrieved over the same the present C.R.P.(MD)No.2518 of 2024 is filed by the defendant in the suit. Along with the above E.A.No.41 of 2018, the Execution Court had heard the E.A.No.42 of 2018. The said E.A.No.42 of 2018 was filed by the 3[rd] party namely the Superintendent of Police, EOW, Nagercoil and 9/100 C.R.P.(MD)Nos.2518 of 2024 and its batch two others under Order 21 Rule 90 and Section 151 of CPC to set aside the Court auction sale held on 01.03.2018 in respect of EP schedule properties as nullity and the same was dismissed along with E.A.No.41 of 2018. But the Superintendent of Police and others had not preferred any revision petition. 9/100 C.R.P.(MD)Nos.2518 of 2024 and its batch two others under Order 21 Rule 90 and Section 151 of CPC to set aside the Court auction sale held on 01.03.2018 in respect of EP schedule properties as nullity and the same was dismissed along with E.A.No.41 of 2018. But the Superintendent of Police and others had not preferred any revision petition. 6. The brief facts as stated in the affidavit filed by the said V.S.Rethinakumari, the defendant/revision petitioner is that the said V.S. Rethinakumari’s husband namely Late.S.Kanagaraj was running Chit Fund business in the name and style of “Palliyadi Retna Chit Fund” and also having a bank namely “Retna Bankers”. There was default in settling the chit amount and depositors, hence several complaints were preferred by the members of the chit company and depositors in the bank. The 1[st] FIR was filed on 27.04.2011 and the 2[nd] complaint was filed on 29.11.2011. The Government has issued G.O.Ms.No.872 Home (Police XIX) Department, dated 12.11.2012 wherein the properties of the Chit Fund Company were attached by the Government and the control of all the properties is vested in the Competent Authority/District Revenue Officer, Kanyakumari District who was appointed under TNPID Act. The petitioner and her five sons were rendered homeless and deprived of the income from the properties, hence they were forced to move to Kerala State and they sought the help of Apostolic Pentecostal Church, 10/100 C.R.P.(MD)Nos.2518 of 2024 and its batch Anavoor for the basic necessity like food and shelter and they were living under the mercy of the Church. The Church could provide them food and shelter and medical assistance but could not provide with legal expenses to conduct the cases. Thereafter, the petitioner at the advice of the Church had sent her two sons, namely Knickter Cram Klinkanic and Jones Kasi Braldly to the Bible College at Thiruvalla in Kerala state, where they were provided with free bible education with free boarding and lodging. In the meantime, the family moved to the present address, in Kaliyal in Tamil Nadu. The orders in E.A.No.41 of 2018 was passed on 12.01.2023, but the defendant / petitioner came to know of the outcome only on 06.02.2024. Hence the defendant/petitioner could not meet the advocate who appeared in the case in time. Further the defendant/petitioner has no other person for guiding her. Hence belatedly the said V.S.Rethinakumari had made arrangements to challenge the order. In fact, the present revision petition was filed along with petition to condone the delay of 369 days. The present Civil Revision Petition is filed against the order dated 12.12.2023 passed in E.A.No.41 of 2018 in E.P.No.4 of 2016 in O.S.No.106 of 2011. 7. Originally, the suit in O.S.No.106 of 2011 was filed by one S.R.Ratheesh, the plaintiff in the suit against the said V.S.Rethinakumari for recovery of money of Rs.17,50,000/- with 24% interest per annum from the date of plaint 11/100 C.R.P.(MD)Nos.2518 of 2024 and its batch dated 20.6.2011 till the date of realization. The brief facts as stated in the plaint is that the plaintiff S.R.Ratheesh was doing business and other financial activities including lending money to others. The defendant V.S.Rethinakumari is personally known to the plaintiff S.R.Ratheesh, the defendant has approached the plaintiff and requested to lend money so as to overcome the financial crisis. Hence, the plaintiff S.R.Ratheesh has paid Rs.17,50,000/- on 10.02.2011 and the defendant V.S.Rethinakumari gave a cheque for the said amount to the plaintiff at his house for discharging her loan. The plaintiff presented the cheque in Central Bank of India on 10.05.2011 and the same was returned as insufficient funds. On 18.05.2011 the plaintiff has issued a legal notice to the defendant insisting to repay the amount and the defendant has failed to repay the amount. Hence the suit was filed in O.S.No.106 of 2011 for recovery of money of Rs.17,50,000/- with 24% interest per annum. 8. The defendant V.S.Rethinakumari had filed written statement stating that the suit is not maintainable in law and facts. The defendant V.S.Rethinakumari never requested the plaintiff S.R.Ratheesh to lend the money, she never borrowed any amount from the plaintiff. The defendant’s husband Late. S. Kanagaraj, had conducted Ratna Chit Funds Private Limited and the plaintiff is one of the subscribers of the above Chit fund. After the demise of the S.Kanagaraj on 12/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 20.12.2009 the defendant was forced to take over active management of the above chit fund. The defendant was a homemaker and due to her inexperience was not able to collect the dues and run the Chit Fund Company. In the meanwhile, depositors had started withdrawing the deposits, hence the defendant V.S.Rethinakumari found difficult to disburse the chit amounts and the deposits. The V.S.Rethinakumari was forced to give a security for the amount due to the plaintiff and in that circumstances the defendant V.S.Rethinakumari issued a cheque without even verifying the actual amount due to the plaintiff on account of chit transactions. In the meanwhile, based on the complaint, FIR was registered in Crime No.1 of 2011 dated 27.04.2011 for the alleged offences under sections 420 and 405 of IPC and Section 5 of TNPID Act. And another Crime No.9 of 2011 was filed on 29.11.2011 against the defendant V.S.Rethinakumari and her sons. Based on the FIRs, the defendant V.S.Rethinakumari was arrested and thereafter released on bail. The police had locked the Chit Fund Company and the defendant V.S.Rethinakumari had no access to the office in which all the books of accounts and computers are available. Hence, the credit particulars of the plaintiff could not be ascertained. Further stated the defendant V.S.Rethinakumari is ready to settle the amount on verification of accounts. If the plaintiff S.R.Ratheesh had submitted a petition before the EOW of Nagercoil the same would have been settled and hence the plaintiff has no locus 13/100 https://www.mhc.tn.gov.in/judis C.R.P.(MD)Nos.2518 of 2024 and its batch standi to file the suit. Further stated that the plaintiff ought to have invoked the provisions contained in Tamil Nadu Chit Funds Act only and the Civil Court has no jurisdiction to entertain the claim. Also stated that the defendant V.S.Rethinakumari is not aware of any suit notice as alleged in the plaint. Since it is Chit Fund transactions, the defendant is not bound to pay any interest and there is no cause of auction. Therefore, the suit is liable to be dismissed. The defendant V.S.Rethinakumari had also filed additional written statement stating the suit is bad for non-joinder of necessary parties. Further the amount due is only on account of chit transaction in Retna Chit Funds Private Limited and the cheque was not issued by the defendant in her personal capacity. The cheque was issued for and on behalf of the chit company hence, the company is a necessary party, since the company is not made a party, the suit is liable to be dismissed for non-joinder of necessary party. 9. The plaintiff had marked Ex.A.1 to Ex.A6 and examined himself. The defendant has examined herself as D.W.1 but had not produced or marked any documentary evidence. Based on the pleadings, documents and deposition the Trial Court had allowed the suit directing the defendant to pay Rs.17,50,000/- along with 24% interest. 14/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 9. The plaintiff had marked Ex.A.1 to Ex.A6 and examined himself. The defendant has examined herself as D.W.1 but had not produced or marked any documentary evidence. Based on the pleadings, documents and deposition the Trial Court had allowed the suit directing the defendant to pay Rs.17,50,000/- along with 24% interest. 14/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 10. Along with the suit the plaintiff had filed I.A.No.301 of 2011 inter alia praying for “attachment before judgment”. In the said interlocutory application the defendant had filed counter stating that the schedule property does not belong to her, but belonged to her late husband, who had already settled the said property to their sons through settlement deed dated 13.10.2009. The defendant’s husband died on 20.12.2009, hence the said settlement was just two months prior to his death. The contention of the defendant V.S.Rethinakumari is that the Trial Court failed to consider the fact that the said property was not belonging to her at all. The said I.A. was allowed vide order dated 05.08.2011, thereby the suit property i.e. the property of the Retna Chit Fund main building was attached. 11. Thereafter, the plaintiff S.R.Ratheesh has preferred E.P.No.4 of 2016 inter alia praying to sell the schedule property through Court Auction in order to appropriate sale proceeds towards the satisfaction of the decree amount and interest. The defendant V.S.Rethinakumari had filed counter in the execution petition wherein the defendant had stated that complaints were filed by the subscribers and depositors, hence FIRs were registered under TNPID Act, charge sheets were filed against the defendant V.S.Rethinakumari and her sons, there are 4000 creditors, the Government had attached all the properties by passing G.O.Ms.No.872 Home (Police XIX) 15/100 C.R.P.(MD)Nos.2518 of 2024 and its batch Department, dated 12.11.2012, the EP schedule of property is one among the properties attached under the said G.O., hence the property is seized in the TNPID Court, Madurai and the power to deal with the property is vested with the TNPID Court. All the creditors would get rateable distribution of their entitlements out of the properties attached by the government. Further stated that the present open market value of the EP schedule property is Rs.30 crores, the total area is 38 cents along with building which is situated in posh area of Nagercoil Town. The property is situated near the Collectorate and other prominent textile and jewelries. The building faces the junction where Medical College Road joins Nagercoil-Trivandrum National Highway Road. The front portion of the EP schedule property on the north is having vast open area (in between the EP schedule property and the said National Highway) and in Nagercoil nowhere such open space is available and the said physical features adds value to the property. On the west of this property there is a busy road, which also adds value to the property. Further stated that in order to settle the dues to the various creditors and depositors, the property was attached by the Government hence, the EP was not maintainable. The EP amount is only Rs.39,06,403/- along with interest, but the property value is Rs.30 crores in open market. Hence, a portion of the property which is sufficient to satisfy the E.P. amount ought to be brought to sale, but the decree holder having no regard for the above principle, had filed the EP 16/100 C.R.P.(MD)Nos.2518 of 2024 and its batch C.R.P.(MD)Nos.2518 of 2024 and its batch for sale of entire property of 38 cents with ill motive. If an order to sale of entire property is passed, it would defeat the purpose behind the attachment by the Government. The said sale would affect the rateable distribution to all the creditors and depositors numbering about 4000. Also stated the encumbrance certificate filed in Execution Petition reflects the attachment of the property by the Inspector General of Police, but having no regard for the said attachment which is made for larger interest of creditors and depositors, the entire property was brought to sale. After attachment, under G.O.Ms.No.872 Home (Police XIX) Department, dated 12.11.2012, the suit schedule property is vested with DRO and the property cannot be brought for sale by any other Courts or other authorities expect the TNPID Court. After the attachment by the Government the possession was handed over the DRO, hence the EP is hit by non-joinder of necessary parties namely the State, DRO, EOW. Further the EP schedule property is not the absolute property of the defendant she is entitled to a portion of the EP Schedule property hence, the entire property cannot be brought for sale. The petitioner S.R.Ratheesh had suppressed the material facts in the execution petition, lacks bonafides, hence the EP is liable to be dismissed. 12. Thereafter the defendant V.S.Rethinakumari had filed E.A.No.41 of 2018 to set aside the Court Auction Sale of the schedule mentioned properties which 17/100 C.R.P.(MD)Nos.2518 of 2024 and its batch was held on 01.03.2018, wherein it is stated that the her husband Late.Kanagaraj had conducted the chit company and private bank. After his demise on 20.12.2009, the company and bank had major setback, all the subscribers and depositors wanted to have their chit amounts and deposits refunded. The amounts due to the chit fund could not be collected. Since the defendant V.S.Rethinakumari could not settle the dues, she was compelled to give atleast cheque amount due, hence she had issued a cheque for the plaintiff for Rs.17,50,000/-. Hence the plaintiff had filed the suit. In the meantime, several complaints were preferred, then two FIRs were filed against the defendant and all the properties were attached in the G.O.Ms.No.872. When all the properties were attached the defendant along with her five sons were rendered homeless, hence sought the help of relatives for shelter and food and was living in Thiruvananthapuram for the last six years (as on 2018), further she was ill for the past one year, underwent operation and taking treatment. On 16.03.2018 she came to know that in EP she was called absent and exparte order dated 28.04.2018 was passed. And steps were taken to sell the property and after proclamation the schedule property was sold in court auction on 01.05.2018 for Rs.4,50,10,000/- by the 2[nd ]respondent. The defendant V.S. Rethinakumari had claimed no notice was served on her and she did not get any opportunity to come across any advertisement in Tamil dailies since she was in Thiruvananthapuram, hence she could not resist other 18/100 C.R.P.(MD)Nos.2518 of 2024 and its batch C.R.P.(MD)Nos.2518 of 2024 and its batch incidental sale proceedings. The property would fetch Rs.30 crores, the property in in prime/posh area, the property was attached by government only with the view to settle all the creditors in rateable distribution as per the order of the TNPID Court, the present value is too low. The defendant also raised various grounds of irregularity in the Court auction sale and stated that the EP amount is only Rs.39,06,403/- along with interest, but the property is valued at Rs.30 crores in open market, hence a portion of the property ought to be brought for sale and not the entire property to satisfy the lesser decree amount and the entire property need not be sold. When compared to open market, if sold to low value, then various other creditors would be affected, the proclamation drawn up does not state all the encumbrances, which is mandatory and non-compliance would vitiates the sale and the impugned sale is liable to be set aside. In Encumbrance Certificate all the encumbrances are reflected, wherein the attachment made by the government is reflected. The defendant is facing criminal charges, hence the impugned sale has caused substantial injury to the defendant. When the possession of the EP schedule property is vested with DRO then the property cannot be brought for sale and the subsequent purchaser cannot take possession and by not impleading the DRO and other authorities, the EP is hit by non-joinder of necessary party. The EP schedule property is not the absolute property of the defendant and as per settlement the property belongs to the sons of the 19/100 C.R.P.(MD)Nos.2518 of 2024 and its batch defendant and hence the entire property cannot be brought for sale. Hence the defendant V.S.Rethinakumari had prayed to set aside the sale. 13. The subsequent purchaser, the 2[nd] respondent herein namely P.Robert Raj had filed counter and denied the averments stated in the EA application. The said P.Robert Raj had denied the averment that after the demise of petitioner’s husband the chit fund and the bank had suffered and submitted that the fact is that the 2[nd ]defendant V.S.Rethinakumari and her children swindled the money and cheated the depositors and subscribers and absconded from the locality and evaded from settling the chit subscribers. The suit was decreed on merits and the defendant has not challenged the same by way of filing an appeal. Further denied the plea of the said V.S.Rethinakumari that she unable to settle the dues and hence had issued cheques. Further denied that the subscribers and depositors have filed various cases before the Civil and Criminal Courts and also denied the case is pending before the Special Court, Madurai, denied the property was attached by the Government, denied the possession was handed over to the competent authority and the property was seized by the Special Court and all other averments were denied. The plea that the V.S.Retnakumari was residing in Trivandrum is denied since the affidavit stated that the petitioner was residing in Kokkavilai. Further denied the mental illness, 20/100 C.R.P.(MD)Nos.2518 of 2024 and its batch C.R.P.(MD)Nos.2518 of 2024 and its batch depression and removal of cyst and the petitioner has not filed any documents to prove the same. It is also denied the petitioner got knowledge belatedly. It is also denied notice was not served upon the her. And raised a plea that the defendant has questioned the integrity of Court. The market value of Rs.30 crores is denied. Prior to Court auction the property has been valued in accordance with the guideline value and auction was conducted as per law. The petitioner is entitled to recover the remaining amount after deducting the EP amount. The petitioner has no right to say that the portion of property alone ought to have been brought for sale. There is no irregularity in the sale conducted by the Court. Further the auction purchaser has denied the real open market value is sufficient to settle the dues to the creditors and depositors, denied the portion of the property is sufficient to the satisfy the EP amount, denied the possession was taken over by the DRO. The auction purchaser had attended the auction held on 01.03.2018 and had paid 25% of the sale amount of Rs.1,12,52,500/-and remaining Rs.3,37,57,500 has been deposited as stipulated by law, hence is a bonafide purchaser and has deposited the sale amount sourcing from various creditors for interest within 15 days from the date of the sale. There is no irregularity and the auction was conducted as per law. The 2[nd] defendant is only protracting the proceedings and prays to dismiss the EA. 21/100 C.R.P.(MD)Nos.2518 of 2024 and its batch 14. In the meanwhile, the official respondents Deputy Superintendent of Police, EOW, the Competent Authority TNPID Act and the State represented by the District Collector had filed E.P.No.42 of 2018 for the same prayer to set aside the auction sale and hence, both are taken up together and the Common order was passed by the Execution Court. 15. Here is a case, right from the beginning the case was mishandled by the parties and Courts for the reasons best known to the parties/Courts. Further none of the Civil Procedure Code was invoked and appropriately applied while considering the case. Rather it is shocking that the Civil Procedure Code was given a go by. And this Court has discussed the same in the following paragraphs. 16. In the suit the contention of the defendant V.S.Rethinakumari is that due to several complaints against the Chit Company, FIR was registered against the defendant, proceedings were initiated under TNPID Act, the defendant was released on bail, the chit company’s main office and branch offices were locked and she has no access to the records, she is ready to settle the amount subject to verification of accounts and subject to outcome of various litigations. The relevant portion of the written statement is extracted hereunder: 22/100 C.R.P.(MD)Nos.2518 of 2024 and its batch “5. That while so, on false and untrue allegations, the Economic Offences Wing II, Nagercoil registered F.I.R. in Crime No.1 of 2011 for alleged offences under section 420 and 405 IPC and section 5 of TNPID Act against this defendant and her sons. Now the defendant is released on bail. The police have locked the Chit Funds Head Office and also the Branch Office. As such, the defendant has no access to her Office in which all the account books and computers in which various accounts of the plaintiff are available and so his credit particulars cannot be ascertained now. Anyway, the defendant is ready to settle the amount at credit of the plaintiff subject to verification of accounts and subject to other conditions that would prevail on the outcome of various litigations the defendant faces” “5. That while so, on false and untrue allegations, the Economic Offences Wing II, Nagercoil registered F.I.R. in Crime No.1 of 2011 for alleged offences under section 420 and 405 IPC and section 5 of TNPID Act against this defendant and her sons. Now the defendant is released on bail. The police have locked the Chit Funds Head Office and also the Branch Office. As such, the defendant has no access to her Office in which all the account books and computers in which various accounts of the plaintiff are available and so his credit particulars cannot be ascertained now. Anyway, the defendant is ready to settle the amount at credit of the plaintiff subject to verification of accounts and subject to other conditions that would prevail on the outcome of various litigations the defendant faces” However, the Trial Court while considering the contention of the defendant V.S.Retnakumari, has held the defendant has failed to file any document to prove her case. Further held the defendant in the written statement even though pleaded the cheque was issued for the chit transactions, but the defendant has not produced any material to show that the plaintiff S.R.Ratheesh was a subscriber of the chit company and on that account the impugned cheque was issued. Also the Trial Court held that during deposition the defendant had admitted that the Chit Company was registered and the Registrar of Chits would have the members list and also admitted that she has not produced any such list to prove the plaintiff S.R.Ratheesh is the member of the chit company. And based on the same the suit was allowed. This Court is of the considered opinion that the Trial Court had terribly erred by holding that the 23/100 C.R.P.(MD)Nos.2518 of 2024 and its batch defendant had not produce any evidence to prove the said transaction is chit transaction. When the defendant had clearly stated that the FIR was filed, she was enlarged on bail, the litigation was initiated under TNPID Act, the main and branch office of Chit Fund Company was under lock and she has no access to the records, then the Court cannot insist or expect the defendant to produce any records. Especially the Court cannot insist when the Chit Fund Office is locked by the Police under TNPID Act. On the other hand, the Trial Court has power to invoke Order XVI of Civil Procedure Code for summoning and attendance of witnesses. To be more specific the Trial Court ought to have invoked the power under Order XVI Rule 6 and 7 of Civil Procedure Code and directed the concerned Economic Offence Wing Authorities and the Competent Authority under TNPID Act, either to produce the records or direct them to appear before the Court for examination as witnesses to ascertain the litigation under TNPID Act. The relevant portion of the section is extracted hereunder: “6. Summons to produce document. - Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. C.R.P.(MD)Nos.2518 of 2024 and its batch 7. Power to require persons present in Court to give evidence or produce document. -document. - Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.evidence or to produce any document then and there in his possession or power. “6. Summons to produce document. - Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. C.R.P.(MD)Nos.2518 of 2024 and its batch 7. Power to require persons present in Court to give evidence or produce document. -document. - Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.evidence or to produce any document then and there in his possession or power. Had the Trial Court invoked the said provision, then the Trial Court would have called for documents from the EOW Police and the Trial Court could have ascertained whether the plaintiff is chit subscriber. But the Trial Court had erred in holding the defendant failed to produce evidence. The Trial Court without ascertaining the said fact had simply placed the burden of proof on the defendant and held the defendant had not proved that the plaintiff is a subscriber of chit and consequently held the cheque is independent transaction. Therefore, this Court is of the considered opinion that the Trial Court ought to have invoked the power granted under Order 16 to grant “complete justice” to the parties, failure had caused injustice to the defendant. 17. Further in the judgment the Trial Court had held that “the defendant had admitted in the written statement that she would settle the amount to the plaintiff and hence the cheque is issued for discharging the loan transaction and not as security under coercion as claimed by the defendant”. This Court is of the considered opinion that the Trial Court is absolutely wrong in stating so, since the said 25/100 C.R.P.(MD)Nos.2518 of 2024 and its batch admission is a qualified admission. The defendant had admitted that she “…is ready to settle the amount at credit of the plaintiff subject to verification of accounts and subject to other conditions that would prevail on the outcome of various litigations the defendant faces”. The Trial Court had taken a part of the sentence and had come to such conclusion and failed to take note the said admission is a qualified admission. The truncated sentence cannot be taken and held against the defendant. Further the defendant had clearly stated in the previous paragraph that the cheque was issued for the amount due on chit transaction, the defendant was coerced by the plaintiff, the cheque was issued without verifying the amount actually due to the plaintiff. Therefore, this Court is of the considered opinion the written statement ought to be read in entirety and cannot be read in bit and pieces and the Trail Court had erred by taking the truncated sentence as if it is admission. 18. The Trial Court ought to have framed an issue whether the transaction is chit transaction, if so whether the plaintiff is entitled to interest. If the plaintiff is a subscriber in Chit, then the plaintiff is not entitled to interest at all, since for any payment under chit transaction interest is not leviable, hence without ascertaining the Trial Court had decreed 24% interest is absolutely erroneous besides total non-application of mind. Therefore, this Court is of the considered opinion that 26/100 C.R.P.(MD)Nos.2518 of 2024 and its batch the Trial Court had failed in framing proper issues and also erred in granting 24% interest for chit transaction, when the chit transaction cannot carry any interest. 18. The Trial Court ought to have framed an issue whether the transaction is chit transaction, if so whether the plaintiff is entitled to interest. If the plaintiff is a subscriber in Chit, then the plaintiff is not entitled to interest at all, since for any payment under chit transaction interest is not leviable, hence without ascertaining the Trial Court had decreed 24% interest is absolutely erroneous besides total non-application of mind. Therefore, this Court is of the considered opinion that 26/100 C.R.P.(MD)Nos.2518 of 2024 and its batch the Trial Court had failed in framing proper issues and also erred in granting 24% interest for chit transaction, when the chit transaction cannot carry any interest. 19. Moreover, when the defendant had disclosed the fact of FIR, the case in pending in TNPID Court and the Special Court is seized of the case, then the suit itself is not maintainable, since the Trial Court has no jurisdiction. The Trial Court ought to have transferred the case to TNPID Court for further adjudication, since the Civil Court jurisdiction is ousted. Therefore, this Court is of the considered opinion that the judgement and decree in O.S.No.106 of 2011 was passed without any jurisdiction and the said judgment and decree in nullity in the eye of law. 20. After the suit was decreed the plaintiff S.R.Ratheesh had filed E.P.No.4 of 2016, wherein the defendant V.S.Rethinakumari had filed counter and had raised various grounds. The defendant had brought to the knowledge of the EP Court that the Government had issued G.O.Ms.No.872 Home (Police XIX Department) dated 12.11.2012 under TANPID Act and attached all the properties including the EP schedule property. But the EP Court had failed to consider the said G.O. It is pertinent to state herein that the Judgment and Decree passed in O.S.No.106 of 2011 was on 12.08.2015, but the G.O.Ms.No.872 was passed for attaching all 27/100 C.R.P.(MD)Nos.2518 of 2024 and its batch the properties including the EP schedule property was on 12.11.2012 and hence the attachment through G.O. is more than two and half years prior to the decree. Infact it is the contention of the defendant that before passing the judgment in the suit the said G.O.Ms.No.872 was brought to the knowledge of the Trial Court itself, but the Trial Court had just brushed aside. As stated supra, this Court is of the considered opinion, the Trial Court ought to have transferred the suit to the TNPID Court since the Civil Court jurisdiction is ousted once the case is seized in the TNPID Court. The Civil Court ought to have avoided the complication which it had created in the present case. Since this Court had held that the Civil Court had no jurisdiction, then the decree passed in O.S.No.106 of 2011 is nullity in law. If so, the sale automatically ought to be set aside. 21. In the meanwhile, the defendant had filed the E.A.No.41 of 2018, wherein the defendant had raised various irregularity in the sale proclamation and other proceedings of the auction sale. The defendant contended that the suit was filed for Rs.17,50,000/- and EP amount along with interest is Rs.39,06,403/-. Even though the property is worth about Rs.30,00,00,000/- (thirty crores), but the property was sold for Rs.4,50,10,000/- (forty crores fifty lakhs ten thousand). When the portion of the property is sufficient to satisfy the decree amount, it is absolutely unwarranted to 28/100 sell the entire 38 cents of the property which was worth about Thirty Crores. The EP Court had not even considered and discussed to sell the portion of the property. Thus, the EP Court had failed in its duty thereby caused serious injury to the defendant. The Learned Counsel had relied the judgement rendered by the Hon’ble Supreme Court in Balakrishnan Vs. Malaiyandi Konar reported in 2006 (3) CTC 180, wherein it is held, ..... 28/100 sell the entire 38 cents of the property which was worth about Thirty Crores. The EP Court had not even considered and discussed to sell the portion of the property. Thus, the EP Court had failed in its duty thereby caused serious injury to the defendant. The Learned Counsel had relied the judgement rendered by the Hon’ble Supreme Court in Balakrishnan Vs. Malaiyandi Konar reported in 2006 (3) CTC 180, wherein it is held, ..... “10. The provision contains some significant words. They are "necessary to satisfy the decree". Use of the said expression clearly indicates the legislative intent that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. (See Takkaseela Pedda Subba Reddi v Pujari Padmavathamma (AIR 1977 SC 1789). In all execution proceedings, Court has to first decide whether it is necessary to bring the entire property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small the Court must bring only such portion of the property the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This is not just a discretion but an obligation imposed on the Court. The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. (See: Ambati Narasayya v. M.Subba Rao and another 1989 Suppl. (2) SCC 693). The duty cast upon the Court to sale only such portion or portion thereof as is necessary to satisfy the decree is a mandate of