Gujarat High Court
Jigna Manojbhai Tanti vs Bank Of Baroda & on 1 August, 2013
Author: G.R.Udhwani
Bench: G.R.Udhwani
JIGNA MANOJBHAI TANTI....Petitioner(s)V/SBANK OF BARODA C/SCA/14/2010 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14 of 2010 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ================================================================ JIGNA MANOJBHAI TANTI....Petitioner(s) Versus BANK OF BARODA & 3....Respondent(s) ================================================================ Appearance: MS SANGEETA PAHWA WITH MR TEJAS P SATTA, ADVOCATE for the Petitioner(s) No. 1 MR MANAN MAHETA, AGP for the Respondent(s) No. 3 MS NALINI S LODHA, ADVOCATE for the Respondent(s) No. 1 - 2 RULE SERVED for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 01/08/2013 ORAL JUDGMENT
1. The petitioner, a daughter of karta of Hindu undivided family, is aggrieved by orders passed by lower courts declining the injunction against the proceedings taken by first respondent bank for realisation of its dues by selling of what the petitioner calls coparcenery Hindu properties. Both the courts below saw Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( for short the Securitisation Act ) as a bar in entertaining the suit and thus declined the injunction.
2. Having heard learned counsel for the parties and perused the record, it transpires that the petitioner pleaded in the plaint her right under Hindu Law as a coparcener as also the right of residence. The petitioner also pleaded that the action of the respondent in declaring the Assets of petitioner s father as Non-performing Asset ( for short NPA ) is illegal and all further action taken subsequent thereto are also illegal. In the plaint, the prayer seeking to set aside all such proceedings has been made. No prayer for partition or the rights under the Hindu Law was made in the plaint.
3. By way of application Exh.5 injunction against the proceedings taken out by the respondents under the Securitisation Act was sought.
4. It appears that as per the case of petitioner, co-parcenery property was mortgaged by her father who admittedly is karta of HUF.
5. Considering the prayers made in the plaint and application for injunction Exh.5, it does appear that the intention of the plaintiff petitioner herein is to question various acts undertaken by the respondents under Sections 13 and 14 of the Act, therefore, it cannot be contended that the provisions of the Act were not attracted. This Court is therefore unable to subscribe to the contention raised by the learned counsel for the petitioner to an effect that the petitioner has a right as a coparcener and that such rights are being curtailed or adversely affected by impugned action.
6. The learned counsel for the petitioner pressed into service various authorities as follows:
Vysya Co-operative Bank Ltd. Vs. Ms. G.Keerthana and others [ AIR 2008 Karnataka 25 ].
Dena Bank Vs. Shri Sihor Nagarik Sahakari Bank Limited and others [ 2008 (2) GLH 218 ].
Naliniben Rajnikant Patel Through Power of Attorney and others vs. Rashmikant Manubhai Amin and others decided by the Division Bench of this Court in Special Civil Application No.12212 of 2009 with Letters Patent Appeal No.837 of 2010 and connected matters.
7. Having perused the said cases, it is explicit that rights and liabilities independent of Securitisation Act were being considered by the court, and it is obvious that, if the provisions of Securitisation Act are not attracted, the person aggrieved by that action cannot be relegated to the remedy under the Securitisation Act. The said cases are therefore of no assistance to the learned counsel for the petitioner.
8. Viewing the case from different dimension, it is settled law that a karta of HUF is authorised to incur necessary debts for maintenance of the family. It cannot be disputed that when karta incurred the debts in relation to the business, he was within his authority. Under the Hindu Law, only illegal or unreasonable acts would prevent the karta from incurring the debts, and every lawful act or the act actuated by necessity is binding on the coparcener and the coparcener has no unequivocable right to claim the property irrespective of authority of karta. Since the debts were incurred for managing the business by karta, it cannot be said that the debt was illegal.
9. No doubt it is true that right to ancestral property to coparcener accrues, in Mitakshari family, from birth. However, such right is not akin to a right of a partner in a partnership firm. The karta is a sole authority, and therefore, if, by his lawful acts or the reasonable acts or the acts actuated out of necessitated deprives a coparcener of the property, it cannot be said that kartas acts were illegal. His mortgaging the property, therefore, cannot be questioned. Consequently, the respondents have a right to proceed under the Securitisation Act to make recovery of debt.
10. Thus, on the assumption that the foundation of the plaint was under the Hindu Law, it cannot be said that the petitioner has a prima facie case to secure an injunction against the proceedings lawfully taken under the Securitisation Act.
11. In view of above, there is no substance in the argument advanced by the learned counsel for the petitioner that the civil court had jurisdiction or that the petitioner had a prima facie case. Under the circumstances, the petition being devoid of merits, deserves to be dismissed. It is therefore dismissed. Rule is discharged with no order as to costs.
12. The learned counsel for the petitioner at this stage requests for stay of this order so as to enable him to approach the higher forum. It prima facie appears that the proceedings in the nature of civil suit are not bonafide. The object appears to be to delay the recovery proceedings initiated by bank and that fact is very clear from the averments made in the plaint itself. Though the petitioner in the pleadings purportedly asserted her rights under Hindu Law, substantial the case appears to have been pleaded against recovery proceeding to help her father and the prayer is made in relation to the provision of Securitisation Act only. Thus, when apparently the aforesaid is the design, staying this order further would cause great hardship and inconvenience to the respondents particularly the bank who seeks to recover huge sum of money from karta of HUF. The request is therefore declined.
(G.R.UDHWANI, J.) syed/ Page 5 of 5