- (1.)THE present appeal is directed against the order dated 11. 9. 2000 rejecting the application filed by the present appellant, namely, Appln. No. 262 of 2000 arising out of C. S. No. 830 of 1996.
(2.)THE said suit has been filed by the present appellant claiming the following reliefs: -
" (a) directing the first and second defendants jointly and severally to perform their obligations under the agreement dated 31. 10. 1996 by executing and registering a Deed of Sale in respect of the property being buildings and structures and all that piece and parcel of land of an extent of 1 Ground and 2103 Sq. ft. comprised in R. S. No. 622/3 Block No. 36, Nungambakkam Village bearing Corporation Door No. 10, Scheme Road, Mahalingapuram, Madras 34 more particularly described in the Schedule and handing over vacant possession of the same to the plaintiff. (b ). restraining the First and Second Defendants by an order of permanent injunction from dealing with the property described in the Schedule in any manner contrary to the terms and conditions of the agreements dated 31. 10. 1996. (c ). restraining the Third Defendant by an order of permanent injunction from foreclosing the mortgage and bringing the property described in the Schedule to sale. (d ). directing the Third Defendant by an order of mandatory injunction to accept the balance of mortgage dues from the Plaintiff when ascertained and tendered by the Plaintiff and to handover the original documents and records of title of the property described in the Schedule to the Plaintiff after discharging the mortgage. "

(3.)ACCORDING to the appellant/plaintiff, the property belonging to the respondents 1 and 2 was to be sold to the appellant for Rs. 48 lakhs. Out of the consideration amount of Rs. 48 lakhs, a sum of Rs. 15 lakhs had been paid to the respondents 1 and 2 and Respondent No. 3, who was mortgagee of the property, before filing of the suit. The appellant deposited a further sum of Rs. 30 lakhs in the Court and the trial court by common order dated 5. 3. 1997 in O. A. Nos. 683 and 684 of 1996, directed the respondent in O. A. No. 683 of 1996 to withdraw such amount and not to put such property to auction in purported exercise of power under Section 69 of the Transfer of Property Act and to keep the original title deeds till disposal of the suit or till the parties arrive at some settlement. Accordingly the aforesaid sum of Rs. 30 lakhs had been withdrawn by the present Respondent No. 3 and to that extent the amount due to respondent No. 3 from Respondents 1 and 2 had been adjusted. Thereafter, the appellant came to know that the respondents 1 and 2 had raised loan from Canara Bank by mortgaging the title deeds and a decree against Respondents 1 and 2 had been passed by the Debt Recovery Tribunal and steps were being taken to realise the amount due under the decree by auctioning the property in question. At that stage, the appellant filed applications before the Debt Recovery Tribunal for being impleaded and for setting aside such decree. The present Respondent No. 3, which was also a defendant before the Debt Recovery Tribunal, had been asked to produce the title deeds, which were said to be deposited with it and ultimately the Debt Recovery Tribunal found that the title deeds deposited with Canara Bank were original title deeds and the title deeds produced by Respondent No. 3 were fake documents. Respondent No. 3 had been served with notice in the proceedings before the Debt Recovery Tribunal and it was thus aware that there was a prior mortgage with Canara Bank in respect of the very same property and yet Respondent No. 3 had not disclosed this aspect and if such aspect would have been made known to the present appellant, they would not have entered into any agreement with Respondents 1 and 2. On the basis of such averments, the appellant prayed that since Respondents 1 to 3 had committed fraud, Respondent No. 3 should be directed to refund the amount of Rs. 35,00,000/- with interest to the appellant. It was further prayed that if it is ultimately found that original title deeds dated 25. 6. 1983 deposited with Canara Bank are not genuine, appellant would refund the very same amount to Respondent No. 3. Respondents 1 and 2 in the suit did not appear to contest such application. However, Respondent No. 3 filed counter affidavit wherein it was indicated that money had been advanced to Respondents 1 and 2 by Respondent No. 3 on the basis of the documents produced by the Respondents 1 and 2 as per mortgage deed dated 3. 8. 1994. Since Respondents 1 and 2 were not repaying the amount, Respondent No. 3 had issued notice for auction of the property in exercise of jurisdiction under Section 69 of the Transfer of Property Act. At that stage, the present appellant entered into a transaction with Respondents 1 and 2 to purchase property from them with the understanding that a sum of Rs. 35 lakhs would be paid to the present Respondent No. 3. Accordingly, Respondent No. 3 tied his hands and did not proceed with auction as notified. A sum of Rs. 5 lakhs had been paid earlier and subsequently the appellant had deposited a sum of Rs. 30 lakhs in court, which was permitted to be withdrawn by the present Respondent No. 3 as per order of this Court in O. A. No. 683 of 1996. Such amount had been paid towards the consideration money and, the amount after being withdrawn, had been adjusted towards the loan account of Respondents 1 and 2 by Respondent No. 3. Respondent No. 3 had also claimed that he did not have knowledge about the proceedings initiated by the Canara Bank. It was further stated that Respondents 1 and 2 produced original title deeds along with clear no encumbrance certificate and there was no collusion between Respondent No. 3 and Respondents 1 and 2. The appellant had filed application in Court numbered as O. A. No. 683 of 1996 and on the basis of such application filed by the appellant, amount has been paid and such amount has been given credit to the amount due from Respondents 1 and 2 and there is no obligation on the part of Respondent No. 3 to refund the money at the interim stage. It was further indicated that Respondent No. 3 was willing to offer security by way of immovable property in the event of holding that Respondent No. 3 is liable to pay the said amount.