Karnataka High Court
Hemanth, S/O. Vittal Kamat vs Ghanashyam Shrinivas Chindak on 11 August, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.F.A. NO.3037/2009 (POS)
BETWEEN:
HEMANTH
S/O. VITTAL KAMAT
AGE. 46 YEARS,
OCC:SERVICE
R/O D-101, SILVER CREST
BALWANTPURAM,
SHIVATIRTH NAGAR,
KOTHRUD-PUNE-411038.
... APPELLANT
(BY SRI S S PATIL, ADVOCATE)
AND :
1. GHANASHYAM SHRINIVAS CHINDAK
AGED ABOUT 55 YEARS,
OCC: BUSINESS,
R/O 3RD CROSS, BHARAT NAGAR
SHAHAPUR-BELGAUM-590001.
2. DR.ARAVIND S/O VITHAL KAMAT
AGED ABOUT 50 YEARS,
OCC:MEDICAL PRACTICE
R/O VAIBHAV, PLOT NO.2,
ADARSH NAGAR,
MADHAVPUR,
VADAGAON,
BELGAUM-590001.
... RESPONDENTS
(BY SRIYUTHS D. RAVIKUMAR GOKAKAKAR &
HANUMANTHREDDY SAHUKAR, ADVS. FOR R1;
R2 - NOTICE DISPENSED WITH)
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THIS RFA IS FILED UNDER SEC.96 AND R/W ORDER XLI
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DTD:26-02-2009 PASSED IN O.S.NO.103/2007 ON THE FILE OF
THE II-ADDL.CIVIL JUDGE (SR.DN) BELGAUM, PARTLY
DECREEING THE SUIT FILED FOR POSSESSION.
THIS APPEAL COMING ON FOR ARGUMENTS THIS DAY,
THIS COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 96 of C.P.C. is preferred by defendant No.2 in O.S. NO.103/2007 on the file of II Addl. Civil Judge (Sr. Dn.), Belgaum. The respondent No.1 in this appeal is the plaintiff in the said suit and respondent No.2 is defendant No.1. The plaintiff instituted the suit for recovery of possession of the property bearing plot No.2 in Sy. No.1 of Adarsh Nagar, Madhavapur Vadagoan, Belgaum city, in all, measuring 4714 sq. ft. consisting of a building.
2. The plaintiff's case is as follows :
Defendants No.1 and 2 are the brothers. The suit property belonged to their mother Leela Vithal Kamat. After her demise, the defendants succeeded to the said property. The defendants borrowed financial assistance from Karnataka State Financial Corporation (for short, 'K.S.F.C.') in connection with first defendant's proprietary Concern, :3: M/s. Shri V.N. Kamat Memorial City Scanner, Belgaum. The suit property was offered as collateral security for the loan they obtained from K.S.F.C.. As the defendants failed to repay the loan, the K.S.F.C. exercised its statutory powers and took over the possession of the suit property. After getting the notice of auction published in the newspapers, 'Vijaya Karnataka' and 'Tarun Bharat' on 03.12.2005, the K.S.F.C. brought the suit property for public auction. The plaintiff was the highest bidder for Rs.15,00,000/-. His bid was accepted and in this connection K.S.F.C. issued a Sale letter to him on 08.02.2006 and then executed a registered sale deed in his favour on 08.08.2006. Thus, the plaintiff acquired right, title and interest over the suit property. He requested the defendants to hand over the vacant possession of suit property to him. Since the defendants did not oblige to his request, the plaintiff filed the suit for obtaining possession of the suit property.
3. Defendant No.1 did not file written statement. Defendant No.2 contended that he did not obtain loan from K.S.F.C. and he had no concern of whatsoever nature with M/s. Shri V.N. Kamat Memorial City Scanner, Belgaum. He :4: was not aware of the advertisement published in kannada newspaper, 'Vijay Karnataka' and marathi daily 'Tarun Bharat' on 03.12.2005. The K.S.F.C. also initiated another proceeding Misc. Case No.114/1999 before the District Court, Belgaum, and when it was pending, the suit property was brought to sale. The K.S.F.C. had no authority to bring the suit property for sale in public auction. He contended that he was the owner of the suit property and that the plaintiff was not entitled to claim ownership right on the basis of the sale deed executed in his favour by K.S.F.C..
4. The trial Court raised the following issues :
i. Whether the description of suit property is correct?
ii. Whether plaintiff proves that he has purchased suit property and he acquired valid title as pleaded?
iii. Whether plaintiff is entitled for possession of suit property?
iv. Whether defendant No.2 proves that K.S.F.C. had no authority to put the suit property for sale?
v. Whether defendant No.2 proves that there is no cause of action for the suit?
vi. Whether plaintiff is entitled for decree? :5:
vii. What decree or order?
5. The trial Court appreciated the oral and
documentary evidence placed before it by the parties and came to the conclusion that the plaintiff was entitled to a decree of possession. The findings of the trial Court are that the plaintiff is a purchaser in a public auction held by K.S.F.C. which exercised its statutory power for recovering the loan obtained by the defendants. The defendants do not dispute the loan transaction. If according to defendant No.2 he had not raised loan from K.S.F.C. nor he has stood as a surety to the said loan transaction, he should have challenged the auction taken by the K.S.F.C. by filing writ petition. The suit property was auctioned in February 2006. Sale letter was issued to the plaintiff on 08.02.2006 and registered sale deed was executed by K.S.F.C. on 08.08.2006. He has not taken any action questioning the validity of the sale deed executed by the K.S.F.C. in favour of the plaintiff. Therefore, defendant No.2 cannot resist the claim of plaintiff for possession of the suit property. The trial Court also took notice of the suit, O.S. NO.138/2008 filed by defendant No.2 for partition and separate possession of his :6: share in the suit property. The facts disclosed that the suit property was offered as collateral security by both the defendants. This fact is not denied by defendant No.2 in the suit. Even the question whether defendant No.2 also offered the suit property as security to K.S.F.C. or not is beyond the scope of the suit, Already another suit has been filed questioning the validity of the sale deed, and therefore, if according to defendant No.2, the sale deed did not bind his interest it will be decided in that suit. Since the plaintiff is purchaser of suit property in public auction, his title gets established, and therefore, he is entitled to possession of the suit property. Ascribing these reasons, the trial Court decreed the suit.
6. Assailing the judgment of the trial Court, the learned counsel for the appellant argues that the defendant No.2/appellant was neither a borrower nor a guarantor. He refers to Miscellaneous Petition No.114/2003 to argue that in this miscellaneous petition defendant No.2 was shown as respondent No.3 and subsequently the K.S.F.C. filed a memo before District Court on 15.01.2009 stating that the petition against defendant No.2 was not pressed since he was not a :7: guarantor. This shows that defendant No.2 was not at all connected with the loan transaction between the K.S.F.C. and defendant No.1. Therefore, the sale deed executed by K.S.F.C. pursuant to public auction in favour of the plaintiff was bad. The property belongs to him also. Therefore, the trial Court should not have decreed the suit for possession in favour of the plaintiff.
7. The learned counsel for the respondent - plaintiff argues that the judgment of the trial Court need not be interfered with. He argued that suit property was offered as collateral security and because of failure of the borrowers to repay the money to K.S.F.C., the schedule property was brought to public auction. In the public auction, the plaintiff was the highest bidder. Therefore, the K.S.F.C. executed the sale deed in favour of the plaintiff. If really defendant No.2 was aggrieved by the sale, he should have challenged the auction held by the K.S.F.C.. So far auction has not been challenged, and therefore, the sale deed executed by K.S.F.C. in favour of the plaintiff has remained unchallenged. He was the successful bidder and once the sale deed is in his favour, he is entitled to possession of the suit property. The trial :8: Court has rightly decreed the suit. He also submitted that if at all defendant No.2 has got any right, he has to pursue the remedy in another proceeding and not in this suit. He has already filed a suit for partition in O.S. No.138/2008 and in that suit he has challenged the sale deed also. That being the position, the decree under challenge cannot be set aside.
8. In the light of the above argument, the following point arises for consideration :
1. Has the trial Court correctly held that the plaintiff is entitled to possession of suit property as defendant No.2 has failed to challenge the auction sale?
2. What order?
9. The facts are not in dispute. The entire case discloses that defendant No.1 borrowed money from K.S.F.C. in connection with the business concern. The plaintiff has stated that both the defendants borrowed money. However, from the memo filed by the K.S.F.C. in Miscellaneous Petition No.114/2003, it is seen that the K.S.F.C. itself has stated that defendant No.2, Hemanth V. Kamat was not a guarantor. Yet the facts remain that once suit property was :9: sold in auction by the K.S.F.C., the same should have been challenged by defendant No.2 in an appropriate Forum.
Therefore, the sale deed, until it is challenged, remains in tact and its validity cannot be questioned. The plaintiff was the highest bidder in the auction. Having accepted his bid, the K.S.F.C. executed the sale deed in his favour, and therefore, the plaintiff became the absolute owner of the suit property. In this view of the matter, the plaintiff becomes entitled to possession. Therefore, the defendants were under obligation to hand over possession to the plaintiff. It is true that defendant No.2 has filed another suit O.S. No.138/2008 seeking partition. It appears that in that suit he has challenged the validity of the sale deed. Whether defendant No.2 has got a share in the suit property or not is a matter to be decided in O.S.No.138/2008. In the present suit that question does not arise for consideration. It is true that in the trial Court, an application was made by defendant No.2 for clubbing the suit O.S. No.103/2007 filed by the plaintiff herein and O.S. No.138/2008 filed by defendant No.2. In the facts and circumstances of the case, both the suits could have been clubbed and decided together. It is not known why the trial Court did not club the two suits. Any way : 10 : decree in this suit came to be passed. As has been held by the trial Court, since the right of defendant No.2 cannot be considered here, the plaintiff becomes entitled to possession of suit property. The reasons given by the trial Court are proper and well founded. In these circumstances, I do not find good ground to differ from the view taken by the trial Court and accordingly point No.1 is answered in affirmative.
10. Point No.2 : In view of the above discussion, the appeal needs to be dismissed. Therefore, the following:
ORDER i. Appeal is dismissed.
ii. The judgment and decree dated
26.02.2009 passed by II Addl. Civil Judge
(Sr. Dn.), Belgaum, in O.S. No.103/2007
is confirmed.
Sd/-
JUDGE
hnm