Gujarat High Court
Jamnadas Vishnubhai Patel & 3 vs Cosmos Cooperative Bank Ltd on 9 March, 2015
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/10388/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10388 of 2014
With
CIVIL APPLICATION NO. 967 of 2015
In
SPECIAL CIVIL APPLICATION NO. 10388 of 2014
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JAMNADAS VISHNUBHAI PATEL & 3....Petitioners
Versus
COSMOS COOPERATIVE BANK LTD....Respondent
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Appearance:
KEDAR B BINIWALE, ADVOCATE for the Petitioner Nos. 2 4
MR JR DAVE, ADVOCATE for the Petitioner No. 1
MR.VISHAL J DAVE, ADVOCATE for the Petitioner No. 1
MR GM JOSHI, ADVOCATE for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 09/03/2015
COMMON ORAL ORDER
1. Heard learned advocate for the parties. The petitioner has takenout the main petition originally with following prayers.
A. This Hon'ble Court may be pleased to issue writ of mandamus or certiorari or a writ in nature of mandamus or certiorari or any other writ, order or direction declaring action of the respondent bank selling the second, third and fourth floor of the property in question as illegal, untenable and arbitrary and be further pleased to declare that the bank has no right whatsoever to deal with the second, third and fourth floor of the property.
Page 1 of 8 C/SCA/10388/2014 ORDERB. This Hon'ble Court may be pleased to declare null and void the portion of the sale deed whereby the second, third and fourth floor of the property have been conveyed by the bank to itself and direct the bank to release the said property to the petitioners.
C. This Hon'ble Court may be pleased to declare that the property in question was mortgaged only for securing advance of Rs.50,00,000/ and direct the respondent to adjust only such dues and refund the balance amount recovered by it from sale of the property.
D. Pending hearing and final disposal of the present petition this Hon'ble Court may be pleased to restrain the bank from dealing in any manner with the second, third and fourth floor of the property in question and also restrain the bank from dealing with the movable property lying in the second, third and fourth floor of the property in question.
E. Pass any such other and further orders that may be thought just and proper in the facts and circumstances of the present case.
2. Later on, by way of amendment, prayers (A) to (E) were require to be added and this amendment is granted by order dated 18 th December 2014, which prayers are reproduced as under : (A) This Hon'ble Court may be pleased to issue writ of mandamus or certiorari or a writ in nature Page 2 of 8 C/SCA/10388/2014 ORDER of mandamus or certiorari or any other writ, order or direction declaring the action of the respondent bank in initiating the proceedings under the SARFAESI Act, against the petitioner as void abinitio and ultra virus.
(B) This Hon'ble Court may be pleased to issue a writ of mandamus or certiorari or writ in nature of mandamus or certiorari or any other writ, order or direction declaring the action of the respondent bank of executing a Sale Deed with respect to the petitioner's property in its own favour, pursuant to the actions under SARFAESI Act as void abinitio and ultra virus.
(C) This Hon'ble Court may be pleased to issue a writ of mandamus or certiorari or writ in nature of mandamus or certiorari or any other writ, order or direction, directing the respondent bank to hand over the vacant and peaceful possession of the petitioners property situated at Moje Babajipura Rajmahal Road B Tika No.14/4, City Survey no.24/4/A known as Mahavir Colony "Yamunakunj" along with the construction over it and also further be pleased to direct the respondent - bank to clear all the statutory dues integrated over the said property of the petitioners.
(D) This Hon'ble Court may be pleased to issue a writ of mandamus or certiorari or writ in nature Page 3 of 8 C/SCA/10388/2014 ORDER of mandamus or certiorari or any other writ, order or direction to the respondent bank to compensate the petitioners for the breach of their constitutional right as enriched in Article 300A of the Constitution of India for initiating the proceedings under the SARFAESI Act, against the petitioners.
(E) "Pending hearing and final disposal of the present petition this Hon'ble Court may be pleased to restrain the bank from dealing in any manner with the entire property of the petitioner which has been taken over by the bank under the SARFAESI Act."
(E) Pass any such other and further orders that may be deemed just and proper in the facts and circumstances of the present case.
3. Thereafter, the civil application is takenout with following prayers.
(A) Your Lordships may be pleased to admit
and allow the present application.
(B) Your Lordships may be pleased to give
directions to the Opponent bank to handover the peaceful possession of the Applicants' property situated at Moje Babajipura Rajmahal Road B Tika No.14/4, City Survey no.24/4/A known as Mahavir Colony "Yamunakunj" along with the construction over it and also further be pleased to Page 4 of 8 C/SCA/10388/2014 ORDER direct the Opponent - bank to clear all the statutory dues integrated over the property of the Applicants.
(C) Your Lordships may be pleased to pass any other and further orders as may be deemed fit and proper.
4. The Court has heard both the matters. Learned counsel for the petitioners has invited this Court's attention to the fact that the mortgage document, which was executed in the year 1999 refers to the property to be mortgaged being ground floor and first floor and as it does not refer to any other property, there cannot be any right of the bank to treat the entire property under mortgage and appropriate the same. This Civil Application is takenout for seeking mandatory orders for handing over the vacant and peaceful possession of the property, being property of second floor, third floor and stair cabin. The additional affidavit is placed on record consisting of documents viz. Rajachithhi and plans. There are two rajachithhis i.e. permission to develop namely Rajachithhi dated 5th July 1972 in which there is a discussion in respect of permission for puttingup ground floor and first floor only. As per the say of the learned advocate for the respondent bank, this document was passed up relying there upon the documents of mortgage deed executed. Shri Vishal Dave, learned advocate for the petitioner, submitted that he could not have disputed this fact and submitted that as there was no mortgage contemplated of upper storeys namely second floor, first floor and stair cabin, there was no requirement of passing or submitting the subsequent rajachithhi, under which the subsequent development was taken for the development, which was also prior to execution of mortgage deed, so as to oust the operation of Section70 of the Transfer of Property Act.
Page 5 of 8 C/SCA/10388/2014 ORDER5. The Court has heard learned advocate for the parties and perused the documents. The Court is of the view that in the main matter, this Court has passed the order on 30 th July 2014, whereunder the bank is under obligation not to alienate or encumber or deal with the property so far as the second, third and fourth floor are concerned and in my view, now if at this stage, civil application's prayers are granted, that would amount to allowing the entire petition at the admission stage. The matter is required to be considered in detail. Hence, Rule.
6. At this stage, learned advocate for the parties have submitted that the moot question in respect of invocation of SARFAESI Act based upon the decisions of Greater Bombay and this Court, which are pending with the Supreme Court for its adjudication, let this be open to the parties to approach the Court after the pronouncement is rendered in those matters by the Supreme Court, for takingup these matters. In view of this, the Court is not made rule returnable. However, the parties are hereby at liberty to approach the Court for fixing the date of hearing since the decision in these cases are pronounced and issue is decided by the Supreme Court.
7. So far as the reliefs prayed in civil application is concerned, this Court is not inclined to grant them at this stage for the following reasons.
The granting of these reliefs at this stage would amount to allowing the petition at the admission stage itself. Therefore, in that situation, it is not required to be granted.
The second factor, which also militate against the granting of reliefs is that the documents, as they have come on record, do indicate that though the petitioner was knowing all the facts, he is infact aware about the possession of the building in question, he has chosen not to Page 6 of 8 C/SCA/10388/2014 ORDER clarify it in the mortgage document. The mortgage document reveals that the money had already received and thereafter, the mortgage deed was made, which leaves ample to say on the conduct. However, at this stage it is not proper to reflect upon the same, as the Court yet to hear parties on merits in detail. Suffice it to say that, though the property was consisting of total three storeyed, the mortgage deed is blissfully silent qua the existence of further two storeyed i.e. second floor and third floor and looking to the provision of Section70 of the Transfer of Property Act, this Court is of the primafacie view that it was incumbent upon the party i.e. petitioner to make it abundantly clear in the mortgage deed itself that the building is consisting of three storeyed and out of 3 storeys, only ground floor and first floor are mortgaged and second floor and third floor were not mortgaged. When learned advocate for the respondent, had made it a point and submitted that the petitioner cannot be permitted to take advantage of his own smart move and his own wrong as the facts have been suppressed before entering into the mortgage deed, this Court need not grant the mandatory relief. Hence, the civil application is disposed of.
8. The Court is of the view that the aforesaid observations made by the Court are primafacie and therefore, it goes without saying that they shall have no bearing upon the final disposal of the matter, they were made only with a view to examine as to whether the mandatory relief as sought for at this stage, is required to be granted or not. The Court is not inclined to grant mandatory relief, as the provision of Section70 of the Transfer of Property Act is absolutely clear and this Court is of the primafacie view that for ousting the provision of Section 70 of the Transfer of Property Act or otherwise also, the mortgage deed was required to be contained in specific and clear description of the property. The silence in the mortgage deed qua existence of second and third floor and omission on the part of the petitioner in not making it Page 7 of 8 C/SCA/10388/2014 ORDER clear to the mortgagee - the bank, to disqualify the petitioner at this stage to seek any mandatory relief in his favour. Hence, interim relief granted vide order dated 30th July 2014 shall continue till final disposal of the matter and the Court has not granted the interim relief of handing over the possession, as that would meet the ends of justice and bank itself is restrained from bearing with the property in any manner, so far as those floors are concerned. Hence, the Civil Application is dismissed.
9. At this stage, learned advocate for the petitioner contended that the bank could not have pleaded ignorance qua existence of upper floors, as the bank had advanced sizable amount of Rs.50 lacs. This submission is absolutely not appealing to the Court in any manner, as the tenor of the mortgage deed itself leaves much room to infer that how and in what manner such mortgage deeds were made. The petitioner cannot be permitted to take advantage of his smart move, as nothing prevented the party to make it very clear in the mortgage deed that the property in question were having more floors and only first floor and ground floor being mortgaged. Anyway, the Court need not dwell upon in this aspect, as the Court has not granted any mandatory relief at this stage and as it is stated that the petition could have been heard earlier also, but the learned advocates have requested that the Court may await the decision and outcome of Supreme Court on the point.
(S.R.BRAHMBHATT, J.) Rathod...
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