IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.08.2011 CORAM THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH Application Nos.1615, 3239, 3240, 3550, 3551 and 3552 of 2011 in C.S.No.98 of 1991 ORDER Application No.1615 of 2011 has been filed by the applicant/D26 & D27 for passing orders of payment of a sum of Rs.8,53,093.77ps jointly to the applicants by a cheque to be drawn in favour of the first applicant namely Mrs.C.Khateeja Begum, out of the Court deposit of Rs.57,58,383/-. 2. Heard, Mrs. Chitra Sampath, learned senior counsel for the applicants in A.No.3239 of 2011/respondents 24 to 27 in A.No.3240/2011/ respondents 29 to 32 in A.No.1615 of 2011 / respondents 30 to 33 in A.Nos.3550, 3551 and 3552 of 2011 and Mr. A.J.Abdul Razack, learned counsel for the applicants in A.No.3240 of 2011 / respondents 17 to 24 in A.No.3239 of 2011 / respondents 20 to 27 in A.No.1615 of 2011/ respondents 19 to 26 in Application Nos.3550, 3551 and 4552 of 2011 and Mr.S.B.Fazluddin, learned counsel for the applicants in A.No.1615 of 2011/ respondents 29 and 30 in A.No.3239 of 2011 / respondents 22 and 23 in A.No.3240 of 2011 and MrR.Yasod Varadhan, learned counsel appearing on behalf of M/s. CRA Associates for 14th respondent in A.No.3239 of 2011 / 18th respondent in A.No.3240 of 2011 and 17th respondent in A.No.1615 of 2011. Mr. S.M.Hameed Mohideen, learned counsel for the respondents 9,11 and 20 in A.Nos.3239, 3240 and 1615 of 2011. 3. The respective learned counsel appearing for the applicants would submit in their arguments that the suit has been filed by the plaintiffs for partition and recovery of possession in respect of the shares of the plaintiffs and while the said suit was pending, a property, namely, a house and ground premises bearing Door No.16, (Old Door No.69), Godown Street, George Town, Chennai, was permitted to be sold by the learned Master and accordingly, the said property was sold. The 14th defendant was held the highest bidder for a sale consideration of Rs.55,50,000/-, in which, the sale price amount was deposited into Court and it earned an accrued interest of a sum of 2,08,383/- and in total, a sum of Rs.57,58,383 /- is available to the credit of the suit. The said proceeds of the sale of the said property is liable to be shared in between the parties in accordance with their respective shares in the properties. They would further submit that accordingly, the defendant Nos. 26 and 27, who happen to be the applicants in application No.1615 of 2011 are entitled to a sum of Rs.8,53,093.77ps. They would further submit in their arguments that the respondent cannot have any objection for payment of the said amounts as sought for by the applicants, since the respondent as 14th defendant is also entitled to a share in the sale price amount deposited by herself and therefore, there cannot be any impediment for this Court to pass an order of payment out. They would also submit that the advance amount said to have been repaid by the 14th defendant cannot be adjusted from this sale price amount, since there is no evidence to show that the advance amount was paid by the tenants and they were repaid by the 14th defendant and the incurred expenditure has to be adjusted with the sale price amount. The evidence adduced by the husband of 14th defendant as R.W.1 would not prove any fact regarding the payment of advance paid by the alleged tenants or repayment made to such tenants. The documents sought to be produced in the form of typed set in respect of a receipt and consent letter dated 11.3.1992 were not proved by the 14th defendant, either directly or through her husband examined as R.W.1 and therefore, the claim of the respondent is not true and it has to be straightaway divided among the parties as per their respective shares. Therefore, they would request the Court to pass orders on the payment out applications. 4. Mr.Yasod Vardhan, learned senior counsel would submit in his arguments that the evidence has been adduced by the 14th defendant that she had paid a sum of Rs.11,22,000/- to the tenants towards the advance amount paid by them. The evidence adduced by the husband of 14th defendant was not contraverted and therefore, the advance amount repaid by the 14th defendant has to be deducted from the sale price amount. He would also submit in his arguments that the admitted shares of parties were given in the schedule filed by him and the amount payable, out of the sale transaction, without deducting the advance amount, is listed in Column No.2 and the amount to be distributed to their shares, after deducting the advance amount paid, has been mentioned in Column No.3 and the said calculation of shares as well as the amount are not disputed by the applicants and therefore, suitable orders may be passed in the facts and circumstances of the case. 5. I have considered the submissions made by both parties and I could see that there is no dispute that all the parties are entitled to share the sale price amount deposited by the 14th defendant as the purchaser of the property. The said deposited amount was a sum of Rs.55,50,000/- and the accrued interest made the corpus to enlarge as Rs.57,58,383/-. The only contention of the respondent was that the 14th defendant had paid the advance amount to the tenants, while they vacated in the year 1992 and 2005 and for that, she obtained receipts. Even though the xerox copies of the receipts have been produced in the form of typed set, the original were not produced by the 14th defendant through her witness R.W.1. In the said circumstances, this Court cannot come to a conclusion at this stage that 14th defendant had repaid a sum of Rs.11,22,000/- to the tenants who vacated the premises towards the advance paid by them. Therefore, I have no hesitation to hold that the said claim of the 14th defendant cannot be adjusted from and out of the sale price amount and its accrued interest i.e., Rs.57,58,383/-. Therefore, the said amount of Rs.57,58,383/- shall be divided among the parties according to their shares, they are entitled to. The appropriate shares to each of the parties in the suit have been shown in a separate memo of calculation filed by the 14th defendant and it was not questioned. The said memo of calculation had given due shares to the defendants 1 to 31 and the respective amounts payable, when the advance amount is deductable or not deductable as the case may be. As found already, the advance amount is not deductable from this sale price amount and therefore, the applications filed by the respective applicants are liable to be allowed in terms of the calculation made in the said memo filed by 14th defendant without deducting any amount. 6. Accordingly, each of the applicants in A.No.1615/2011 who being the defendant Nos. 26 and 27 are entitled to 32/144 shares and each are entitled to a sum of Rs.4,26,547/-, out of Rs.57,58,383/-. Thus, they are totally entitled to a sum of Rs.8,53,094/-. 7. Similarly, the applicants in Application No.3239/2011, who are the defendant Nos. 28 to 31 are entitled to 32/144, 16/144, 16/144 and 16/144 shares respectively from and out of the said sale price amount. Accordingly, the applicants in Application No.3239/2011 are entitled for a sum of Rs.4,26,547/-, Rs.2,13,272/-, Rs.2,13,272/- and Rs.2,13,272/- respectively and it would come to a total sum of Rs.10,66,366/-. 8. Similarly, the applicants in A.No.3240/2011 who are ranked as D17 to D24 are entitled to 7/288, 14/288, 14/288, 7/288, 7/288, 7/288, 14/288 and 12/288 shares respectively. Their proportionate amount payable out of the sale consideration, would be Rs.1,03,334/-, Rs.2,06,668/- Rs.2,06,668/-, Rs.1,03,334/-, Rs.1,03,334/- Rs.1,03,334/-, Rs.2,06,668/- & Rs.1,77,144/- respectively. Thus, the total amount entitled to all the applicants in this application would be Rs.12,10,484/- but they have claimed a sum of Rs.10,93,026.38ps only and accordingly, they are entitled for the said amount of Rs.10,93,026.38ps. For the balance amount, they have to apply separately. 9. The applicants in Application No.3550/2011 is the 5th defendant. His share is referred to 14/288 and the amount payable for the said share from and out of the sale consideration is Rs.2,06,668/-. However, the applicant has asked for Rs.1,86,614.26ps and the said amount of Rs.1,86,614.26ps is payable to him. For the rest of the amount, he has to file a separate application. 10. Similarly, the applicant in A.No.3551/2011 who happen to be the 7th defendant in the suit is entitled to 14/288 share and a sum of Rs.2,06,668/- is payable to him from and out of the total sale price. However, he has claimed only a sum of Rs.1,86,614.26ps and therefore, a sum of Rs.1,86,614.26ps is payable to him. For the rest of the amount, he has to file a separate application. 11. The applicant in A.No.3552/2011 who happen to be the 16th defendant in the suit is entitled to 12/288 shares from the properties and the appropriate share in the sale price amount is Rs.1,77,144/-, but she has asked for Rs.1,59,955.08ps only. Therefore, the said amount of Rs.1,59,955.08ps is payable to her. The balance amount shall be paid to her on filing a separate application. 12. As per the aforesaid findings, the applications are ordered as prayed for and payment out shall be made to those persons as asked for by issuing cheques in the names of the authorised persons on proper identification. No costs. vsi