Karnataka High Court
Union Bank Of India vs Smt. Vidya Jayaram on 7 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.4966/2023 (CPC)
BETWEEN:
UNION BANK OF INDIA,
ASSET RECOVERY BRANCH,
NO.2/4, RAJA BUILDING,
N.R. ROAD,
BANGALORE - 560002.
REPRESENTED BY ITS
CHIEF MANAGER AND
AUTHORISED OFFICER. ... APPELLANT
(BY SMT. DIVYA PURANDAR, ADVOCATE)
AND:
1. SMT. VIDYA JAYARAM,
W/O. LATE S.V. JAYARAM,
AGED ABOUT 76 YEARS,
R/AT NO.14/3, 2ND FLOOR,
10TH 'C' MAIN,
1ST BLOCK JAYANAGAR,
SIDDAPUR, BENGALURU-560 011.
2. M/S. CURIE IMAGING AND DIAGNOSTICS,
NO.20/7, 2ND MAIN ROAD,
SHESHADRIPURAM,
BEHIND APOLLO HOSPITAL
BENGALURU.
REPRESENTED BY ITS PARTNERS
SHWETHA SHARMA AND
DEEPAK THOUSAOJAM.
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3. SHWETHA SHARMA,
W/O DEEPAK SHARMA,
AGED ABOUT 45 YEARS,
RESIDING AT FLAT NO.A0003,
RAJAPRAKRUTHI APARTMENT,
4TH CROSS, 1ST BLOCK,
JAYANAGAR, BENGLAURU-560 011.
4. DEEPAK THOUNAOJAM,
AGED ABOUT 40 YEARS,
NO.128, GROUND FLOOR,
2ND CROSS, 6TH BLOCK,
KORAMANGALA,
BENGALURU-560 095.
5. DEEPAK SHARMA,
AGED MAJOR,
RESIDING AT FLAT NO.A0003,
RAJAPRAKRUTHI APARTMENT,
4TH CROSS, 1ST BLOCK,
JAYANAGAR, BENGLAURU-560 011.
6. SHOBHA,
W/O SACHINDRA,
AGED 40 YEARS,
14/3, 1ST FLOOR, 10TH C MAIN,
1ST BLOCK, JAYANAGAR
BENGALURU - 560011.
7. N RAMA MURTHY,
S/O NARAYANA,
AGED ABOUT 60 YEARS,
FLAT NO.402M, 4TH FLOOR,
KT APARTMENTS-4, NO.46,
13TH CROSS, MALLESWARAM,
BENGALURU - 560003.
8. THE BANK MANAGER,
UNION BANK OF INDIA,
SRI GURURAYA MANSION,
No.759, 8TH MAIN,
JP NAGAR 3RD PHASE,
BENGALURU - 560 078.
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9. GENERAL MANAGER/REGIONAL MANAGER,
UNION BANK OF INDIA,
No.10/A, CHANDRA KIRAN,
1ST FLOOR, OPPOSITE CUBBON PARK
POLICE STATION,
BENGALURU - 560 001.
10. SMT. VISWALATHA,
THE BANK MANAGER,
UNION BANK OF INDIA,
SRI GURURAYA MANSION, NO.759,
8TH MAIN, J P NAGAR, 3RD PHASE,
BENGALURU- 560078.
11. SRI RAJESH,
THE BANK MANAGER,
UNION BANK OF INDIA,
SRI GURURAYA MANSION, NO.759,
8TH MAIN, J P NAGAR, 3RD PHASE,
BENGALURU - 560078.
12. SHYLAJA R,
AGED MAJOR,
NO.67, 1ST MAIN, 1ST CROSS,
PHASE-1, 5TH STAGE,
BEML LAYOUT, RR NAGAR,
BANGALORE 560098.
13. SHRI S.J. SANDEEP,
S/O LATE S.V. JAYARAM,
AGED 52 YEARS,
R/AT No.14/3, 1ST FLOOR,
10TH 'C' MAIN, 1ST BLOCK,
JAYANAGAR, SIDDAPUR,
BENGALURU -560 011.
14. SHRI S.J. SACHINDRA,
S/O LATE S.V. JAYARAM,
AGED 50 YEARS,
R/AT No.14/3, 1ST FLOOR,
10TH 'C' MAIN, 1ST BLOCK,
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JAYANAGAR, SIDDAPUR,
BENGALURU -560 011. ... RESPONDENTS
(BY SRI VIVEK S. REDDY, SENIOR COUNSEL FOR
SRI V. MUNIRAJ, ADVOCATE FOR C/R1;
SRI S. NAGARAJA, ADVOCATE FOR R13 AND R14;
NOTICE TO R2 TO R12 IS DISPENSED WITH
VIDE ORDER DATED 20.12.2024)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 19.04.2023
PASSED ON I.A.NOS I AND II IN OS.NO.1843/2023 ON THE FILE
OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
CCH-27, BENGALURU, ALLOWING THE I.A.NO.1 AND 2 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.12.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant, the learned counsel for the caveator/respondent No.1 and the learned counsel for the respondent Nos.13 and 14.
2. This appeal is filed challenging the order dated 19.04.2023 passed on I.A.Nos.1 and 2 in O.S.No.1843/2023 allowing the applications granting the relief of temporary injunction in favour of the plaintiff/respondent No.1.
3. The factual matrix of the case of the plaintiff in a suit filed for the relief of declaration and injunction it is contended 5 that the plaintiff is the sole, absolute owner and in actual possession of the property, which is morefully described in the schedule. It is contended that originally late Veerappa and his children partitioned the properties vide partition deed dated 05.02.1974 and the suit schedule property was allotted to the share of the plaintiff's husband S.V.Jayaram. The said S.V.Jayaram died on 15.02.2014 and after the death of the plaintiff's husband, all the revenue records were transferred in favour of the plaintiff. The plaintiff has two sons, first son Sandeep and second son Sachindra. The plaintiff and her first son Sandeep are jointly residing at second floor of the suit schedule property and the second son Sachindra and his wife Smt. Shobha i.e., defendant No.5 and their children are jointly residing at first floor of the suit schedule property. The ground floor is let out for auditor office. The defendant No.5 is the wife of Sri Sachindra and the daughter-in-law of the plaintiff.
4. It is contended that the plaintiff is not a guarantor of M/s. Curie Imaging and Diagnostics Loan Account, but defendant No.9/Union Bank of India issued possession notice and attached in the suit schedule house gate. The plaintiff verified and applied for the relevant documents and obtained the same and 6 came to know that there are many illegal and unauthorized alienations taken place without the knowledge of the plaintiff and also the plaintiff's signature, photo and thumb were forged. The plaintiff came to know that the above property was transferred under the impersonation, forged, fictitious, bad, sham, created bogus registered gift deed and release deed through unknown persons and bogus BBMP khatha and obtained loan by M/s. curie Imaging and Diagnostics. The defendant No.5, who is the wife of Sachindra and also daughter-in-law of the plaintiff indulged in creating of all illegal documents. The plaintiff's signature was forged and unknown person signed in the loan guarantee documents before the Bank with the master plan of the Bank Manager i.e., defendant No.10.
5. The plaintiff further contended that the plaintiff has not filed the petition under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the Assistant Commissioner, Bengaluru South Division at Bengaluru. The plaintiff without the knowledge of the Assistant Commissioner's order dated 31.03.2022 in Misc (SC) CR 40/2021-22 is under the said petition itself is impersonation, forged, bad, sham, created bogus cancellation of the gift deed is not binding on the plaintiff. 7 The plaintiff is a senior citizen and in actual physical possession and enjoyment of the suit schedule property. The plaintiff has a khata by the BBMP and as on today she is the khatedar in the records maintained by the BBMP and she is also paying the property tax. The defendants and others have no right, title or interest over the suit schedule property since they are strangers. The plaintiff also submits that defendant No.9 came to the suit schedule and tried to illegally occupy the same and with the timely help of neighbours, well-wishers and friends, the plaintiff resisted the illegal interference of the suit schedule property by the defendants. Hence, the plaintiff filed a suit for the relief of permanent injunction against the defendants in O.S.No.6983/2022. The defendant Nos.7 and 8 appeared and filed I.A. under Order 7 Rule 11A of CPC contending that the plaint is barred by Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act ('SARFAESI Act' for short). The Court dismissed the plaint under Order 7 Rule 11A of CPC. It is also contended that the bank officials, their followers and their henchmen are powerful persons in the locality with money and men power, they can implement their threats into action and dispossess the 8 plaintiff illegally from the suit schedule property. Hence, lodged the complaint with the police and the police have registered the case in Crime No.3/2023 for the offences punishable under Sections 406, 420, 468 and 478 read with Section 149 of IPC.
6. It is also contended that defendant No.9 issued an e-auction notice of the suit schedule property. The plaintiff filed W.P.No.620/2023 and stay order was granted. The said writ petition was disposed of with a direction to appear before the civil Courts for declaration suit. Hence, the plaintiff filed a suit for the relief of declaration to declare that the plaintiff is the absolute owner in possession of the suit schedule property and also to declare that the impersonation, forged, fictitious, bad, false created bogus documents of gift deed dated 23.01.2019 and release deed dated 01.02.2019 executed by unknown person in favour of defendant No.5 as not binding on the plaintiff and also sought for consequential relief of permanent injunction and such other relief inter alia sought for temporary injunction in terms of I.A.Nos.1 and 2. The plaintiff reiterated the very same averments in the application to grant the relief of exparte injunction restraining the defendants from interfering with the 9 possession and enjoyment of the suit schedule property and also restraining them from alienating the suit schedule property.
7. The defendant Nos.7 to 9 appeared and filed the written statement contending that the plaintiff has approached the Court by suppressing the material facts such as she was a party to the loan transaction, though she filed a petition before the Assistant Commissioner for cancellation of the gift deed, only with an intention to restrain defendant Nos.7 to 9 filed earlier suit in O.S.No.6983/2022 and she also set up her son who filed a suit for partition in O.S.No.211/2023 and hence the plaintiff is not entitled for any relief of temporary injunction and also contend that the plaintiff has not made out any case to grant the relief of temporary injunction.
8. The Trial Court having considered the grounds which have been urged and also considering the pleadings and the material on record, comes to the conclusion that it is not in dispute that though there is a bar of jurisdiction of the Civil Court where the matter is cognizable by the DRT, but still the Civil Court has the jurisdiction on matter which are triable by it. The Trial Court also observed that the plaintiff pleaded that there 10 is a fraud and impersonation, she denies to be part of loan transaction, denies the execution of loan document and also denies the very execution of the gift deed and release deed. The plaintiff mainly contended that by impersonation these documents came into existence. The Trial Court also comes to the conclusion that when the case has been registered with regard to fraud, impersonation and creation of documents, if defendant Nos.7 to 9 are succeeded to sell the suit schedule property and dispossess the plaintiff, the very purpose of the suit will become infructuous. The Trial Court comes to the conclusion that if defendant Nos.7 to 9 are restrained from interfering with the plaintiff's possession and enjoyment of the suit schedule property and restrained from alienating or creating third party interest over the suit schedule property, pending disposal of the suit, no hardship will be caused to them, as the loss causing to them can be compensated in terms of money since only loan recovery proceedings has been initiated by the bank defendant Nos.7 to 9.
9. Being aggrieved by the said order, the present appeal is filed before this Court.
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10. The learned counsel for the appellant would vehemently contend that respondent No.1 is the guarantor to the said loan, respondent Nos.2, 3 and 4 are the partners and respondent No.5 is the husband of respondent No.3. The learned counsel contend that loan was taken in 2019. The gift deed is executed by respondent No.1 and the release deed is executed by her husband and respondent Nos.1 and 6 are the guarantors and loan is also released. The learned counsel contend that gift deed is also got cancelled. If no such gift deed is cancelled, the question of filing the writ petition before the Assistant Commissioner and cancelling the same does not arise. The learned counsel contend that respondent No.13 filed a suit for partition with an intention to deprive the legal right of the appellant. The learned counsel contend that bare injunction suit was filed and the same was rejected. E-auction notice was also issued and the same was challenged in the writ petition and the writ petition is also disposed of. The learned counsel contend that suit is filed in collusion and it is a collusive suit and admitted the gift deed before the Assistant Commissioner and also contend that respondent Nos.1, 6, 13 and 14 are all residing together. The loan was taken and public money is advanced in 12 favour of the respondents. The Trial Court fails to take note of the said fact into consideration and granted an order of temporary injunction.
11. Per contra, the learned counsel for the respondents contend that it is not in dispute that the property belongs to the husband of respondent No.1 and after his death, the property vest with the plaintiff/respondent No.1 and her children. The learned counsel contend that suit is filed for the relief of declaration and injunction for annulment of the gift deed and release deed. The gift deed was executed in favour of daughter- in-law and the very contention of impersonation is not substantiated. The release deed was executed by son in favour of wife. The Trial Court taken note of the material on record i.e., impersonation and photographs which appears on the document. Both the gift deed as well as release deed are by impersonation only. The learned counsel contend that both the gift deed and release deed came into existence in 2019 and based on the said created and forged documents, loan was availed and the same has been appreciated by the Trial Court. The learned counsel contend that the signature of respondent No.1 is forged and the family tree and execution of document in favour of bank are 13 created and FIR is registered and matter is under investigation and there is a clear case of fraud. Hence, the Trial Court rightly comes to the conclusion that the suit is filed for the relief of declaration, wherein fraud, misrepresentation and impersonation has been pleaded and documents are created by forging the signature and hence the suit is maintainable and granted the relief of temporary injunction. The Trial Court observed that if temporary injunction is not granted, it will cause hardship to the plaintiff/respondent No.1 and hence it does not require interference of this Court.
12. Having heard the learned counsel for the appellant and the learned counsel for the respondents, the points that arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in granting the relief of temporary injunction restraining the appellant in interfering and alienating the property and whether it requires interference of this Court?
(ii) What order?
13. Having heard the learned counsel for the respective parties and considering the material on record, this Court has to 14 take note of whether the reasoning given by the Trial Court in granting the relief of temporary injunction is acceptable or whether it requires interference of this Court. In view of the serious contentions of both the learned counsel for the appellant and the learned counsel for the respondents, this Court vide order dated 09.12.2024 had directed the appellant to produce the document of gift deed and release deed, which are in the custody of the bank, since the main case revolves upon the very execution of the release deed and gift deed and the respondents disputes the very photographs which appeared on the gift deed and release deed. The respondent No.1 and her son were before this Court. Having considered the xerox copies, in order to compare the same, this Court had directed to produce the original gift deed and release deed and accordingly the same are produced before this Court. This Court compared the photographs available on the gift deed as well as the release deed. This Court had also directed to produce the original photo of respondent No.1 and her son and the same are also produced. Having compared the same, both the photographs are different and not belongs to respondent No.1 and her son Sachindra. Having perused the prima facie original documents before the 15 Court, not found the photographs of respondent No.1 and her son.
14. The main contention of the learned counsel for respondent No.1 is that the plaintiff/respondent No.1 while seeking the relief of declaration and injunction before the Trial Court made specific averments regarding denial of very execution of the release deed and gift deed in favour of defendant No.5, who is the wife of Sachindra and also daughter- in-law of the plaintiff. The main contention of the plaintiff is that defendant No.5 created illegal documents and transferred the property by impersonation, forged the signature of respondent No.1 and her son and documents are sham documents. Having perused the documents, prima facie it appears that those documents are sham documents.
15. The learned counsel for the appellant contend that respondent No.1 is also a guarantor to the said loan transaction and executed the document of deposit of title deed in favour of the bank. In execution of any of the document by respondent No.1, no photographs are found, but respondent No.1 denied the signature available in both the genealogical tree as well as loan 16 document i.e., guarantee documents. This Court also compared the signature available in the caveat vakalath and also the documents of the gift deed and release deed and they are not similar. It is important to note that specific contention was taken by respondent No.1 that no such document of loan is executed and she never went to the bank for execution of the document, but specific allegation is made in the plaint that the documents are created by her daughter-in-law at the instance of defendant No.10, who is the Bank Manager.
16. Having perused the material on record, it discloses that it is a fraud on respondent No.1 and her son and also on the bank. The prima facie documents which have been placed before the Court i.e., original gift deed and release deed not depicts the photo of respondent No.1 and her son Sachindra. Having perused the said documents, the lady who appeared as impersonation appears to be a middle-aged lady and respondent No.1 is aged about around 76 years and apart from that, the photographs in the release deed not depicts the photograph of her son, who is present before the Court. Having perused the documents, it appears that defendant No.5 who is the daughter- in-law of respondent No.1 and wife of her son Sachindra, played 17 fraud in getting the document of gift deed and release deed and availed loan by playing fraud on the bank and someone has impersonated and forged the signature.
17. It is the contention of the plaintiff/respondent No.1 that she is having two sons and declaration was made that she is having only one son and document is executed. It is not in dispute that originally the property belonged to her husband Jayaram, who died in 2014 and these documents came into existence in 2019 i.e., gift deed and release deed and loan is also availed in the very same year by manipulating the documents. When such being the case, the documents apparent on record appears to be a person is impersonated and obtained the loan. No doubt, there is a bar under Section 34 of the SARFAESI Act, but in the case on hand, the very case of the plaintiff is that defendant No.5 had indulged in creating of documents and criminal case in Crime No.3/2023 is registered based on the complaint lodged by the plaintiff against defendant No.5 that by impersonation of her and her son, she had created the release deed and gift deed and offences are registered for the offences punishable under Sections 406, 420, 468 and 478 read with Section 149 of IPC. The very signature forthcoming in 18 the guarantee document produced by defendant Nos.7 to 9 also does not bear the signature and specific contention is taken that they are not her signature and admittedly, the khatha of the suit property was mutated in her name and defendant Nos.7 to 9 did not obtain the same.
18. It is important to note that there was a family partition and property devolve upon the husband of respondent No.1 in view of the family partition dated 05.02.1974. The persons who appeared before the Sub-Registrar are not respondent No.1 and her son. When such material is available on record, the Trial Court in detail taken note of the said fact into consideration and comes to the conclusion that in a case of fraud, forgery and impersonation, the matter requires full- fledged trial. The case which is registered also requires investigation and to collect the FSL opinion producing the original documents. This Court directs the bank to produce the gift deed and release deed, if the Investigating Officer makes any request to the bank and unless those documents are sent to FSL, the matter cannot be adjudicated and Civil Court has to adjudicate with regard to fraud, fabrication of the document and also forgery and it requires trial. It is the case of the bank that 19 the plaintiff is one of the third party guarantor of the loan. Admittedly, the loan is classified as NPA and possession notice was issued is not in dispute and sale notice was issued is also not in dispute and going to conduct the public auction and received the bid and choosen the highest bidder is also not in dispute and if sale certificate is issued in favour of the bidder, it will again put the plaintiff for hardship and these are the factors were taken note by the Trial Court. The Trial Court also taken note of the jurisdiction of the Civil Court where the matter is cognizable by the DRT and also taken note of that still the Civil Court has the jurisdiction on the matter which are triable by it.
19. The Trial Court also taken note of the judgment of the Apex Court in the case of MARDIA CHEMICALS LTD. ETC. v. UOI, wherein it is held that bar of jurisdiction is in respect of a proceeding which may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the Civil Court shall have no jurisdiction to entertain any proceedings thereof. But the Trial Court comes to the conclusion that when the plaintiff pleads that there is a fraud and impersonation and she denies that she is not part of loan transaction and the very execution of documents are created, 20 they are triable issues. The Trial Court taken note of the fact that the relief is sought for declaration and consequential injunction and prayer is also to declare that the plaintiff is the absolute owner and to annul the gift deed and release deed since those documents came into existence by impersonation of the plaintiff and her son. The Trial Court has given the reasons that if injunction is not granted, the plaintiff will be put to hardship and if any sale transaction takes place, it will prevent the right of the plaintiff and the matter requires adjudication. When fraud and forgery took place in creating the documents, if defendant Nos.7 to 9 are not restrained from interfering with the plaintiff's possession and enjoyment of the suit schedule property and creating any third party right over the suit schedule property, it affects the right of the plaintiff and no hardship will be caused to defendant Nos.7 to 9 and even if defendant Nos.7 to 9 would succeed to prove their case that gift deed and release deed have been executed by the plaintiff and her son and she also stands as guarantor to the loan of defendant Nos.1 to 3, in that event, the damages caused to defendant Nos.7 to 9 can be compensated in terms of money and the same also taken note of by the Trial Court while passing such an order. When a 21 reasoned order has been passed by the Trial Court considering the material on record i.e., fraud, forgery, impersonation, and all these factors cannot be decided in the Tribunal invoking the bar under SARFAESI Act and the Civil Court has to decide the issue with regard to the documents with the assistance of FSL report, if it is obtained by the Investigation Officer sending the documents to the FSL since criminal case has already been registered and the matter is under investigation. Hence, I answer the point in the negative.
20. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
(H.P. SANDESH) JUDGE MD