Punjab-Haryana High Court
Punjab National Bank vs Ram Kishan on 13 January, 2014
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision Petition No.101 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision Petition No.101 of 2014 (O&M)
Date of Decision: 13.1.2014
Punjab National Bank ......Petitioner
Versus
Ram Kishan .....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.B.S.Bhatia, Advocate for the petitioner.
MEHINDER SINGH SULLAR, J.(Oral)
The compendium of the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, initially, plaintiff-respondent Ram Kishan son of late Lal Singh (for brevity "the plaintiff") has instituted the civil suit (Annexure P10) for a decree of declaration claiming the following reliefs:-
a) the act of claiming of the alleged mortgage of property, bearing No.14/3, old Boltan Factory, Mathura Road, measuring 8 kanals (4840 sq. yds) at Faridabad by the defendant, in the account of Asha enterprises is an act of fraud and is illegal, null and void.
b) the act of claiming of the alleged mortgage of property bearing No.14/3, old Bolton Factory, Mathura Road, measuring 8 kanals (4840 sq.yds) at Faridabad by the defendant, in the account of Asha Telecom private limited beyond the limit of Rs.85 Lacs is an act of fraud and is illegal, null and void.
c) For permanent injunction restraining the defendant, their agents, nominees,, successors and assignees for ever from interfering into the peaceful and lawful possession and ownership of the plaintiff by way of mortgage/sale/elimination of property bearing No.14/3, old Wolton Factory, Mathura Road, measuring 8 kanals Arvind Kumar Sharma 2014.01.17 12:23 I attest to the accuracy and integrity of this document Chandigarh Civil Revision Petition No.101 of 2014 (O&M) 2 (4840 sq. yds) Faridabad.
2. Instead of contesting the main suit on merits, the petitioner- defendant Punjab National Bank (for short "the defendant bank") moved the application (Annexure P12) for rejection of the plaint under Order 7 Rule 11 CPC read with section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as "the Act"), mainly on the ground that since the jurisdiction of the civil Court is barred u/s 34 of the Act, so, the civil suit (Annexure P10) is not maintainable.
3. Taking into consideration the entire material on record, the trial Court dismissed the application under Order 7 Rule 11 CPC filed by the defendant-bank, by means of impugned order dated 16.4.2013 (Annexure P13).
4. Aggrieved thereby, the petitioner-defendant-bank has preferred the present revision petition, to challenge the impugned order, invoking the provisions of Article 227 of the Constitution of India.
5. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition in this respect.
6. Ex facie, the argument of learned counsel that as the jurisdiction of the civil Court is barred u/s 34 of the Act, therefore, the suit of plaintiff was liable to be rejected and the trial Court committed a legal mistake in this respect, is not only devoid of merit but misplaced as well.
7. As is evident from the record that the plaintiff claimed that Asha Telecom Private Limited had availed CC limit of ` 295 lacs from the Arvind Kumar Sharma 2014.01.17 12:23 I attest to the accuracy and integrity of this document Chandigarh Civil Revision Petition No.101 of 2014 (O&M) 3 defendant-bank and mortgaged its four properties mentioned therein in the plaint. Ashok Verma, owner of Asha Telecom Private Limited asked the plaintiff to accompany him to the bank and projected that he was having good relations with Mr.Tacoria, Chief Manager of the bank and he would get the CC limit extended, in case the plaintiff executes a guarantee bond for additional limit of ` 85 lacs. The case of the plaintiff is that he had visited the bank in the month of March/April, 2008 only once and had met Mr.Tacoria, the then Chief Manager of the bank in his cabin. He handed over the original title deed of the property. Although the plaintiff stood guarantor for additional limit of ` 85 lacs, but, strange enough, he received the impugned notice dated 9.8.2011, wherein it was mentioned that he stood guarantor for entire amount of ` 380 lacs. The plaintiff never signed any such documents with respect to the entire limit amount of Asha Enterprises and M/s Asha Technologies. He has challenged the impugned notice and all other proceedings of guarantee on the basis of fraud played by Ashok Verma and Tacoria, Chief Manager of the defendant bank. It is not a matter of dispute that a criminal case, with regard to the pointed fraud, has already been registered against Pawan Verma, Ashok Verma, Ram Murti Verma, Sandip Verma, Ashok Madan and Chief Manager SS Tacoria, vide FIR No.110 dated 20.3.2013 (Annexure P11) by the police of Police Station Kotwali, Faridabad.
8. No doubt, Section 34 of the Act bars the jurisdiction of the civil Court in case the documents of loan/guarantee transaction are valid and genuine. If a deep rooted fraud has been committed by Ashok Verma with the connivance of Tacoria, Chief Manager of defendant-bank, who has illegally prepared and used the forged documents as genuine, in that Arvind Kumar Sharma 2014.01.17 12:23 I attest to the accuracy and integrity of this document Chandigarh Civil Revision Petition No.101 of 2014 (O&M) 4 eventuality, the civil Court would have the jurisdiction to entertain the suit. The forged guarantee documents prepared by playing the fraud, would be void & ab initio. Hence, the Civil Court has got jurisdiction to entertain and decide the suit filed by the plaintiff. Thus, the contrary arguments of learned counsel for petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
9. Moreover, the trial Court appears to have correctly negated the plea of defendant-bank to reject the plaint under Order 7 Rule 11(d) CPC read with section 34 of the Act, by way of impugned order (Annexure P13), which, in substance, is as under (Para 8):-
"Coming to the fact situation of the present case, twofold arguments have been made by the counsel for plaintiff. 1. that it was projected to the plaintiff that the property was mortgaged to secure the additional CC limit of Rs.85 lacs being sanctioned to Asha Telecom (P) Ltd., whereas in the notice dated 9.8.2011 from the bank, reference has been made to CC limit of Rs.3.80 crores. Secondly, that although the guarantee was given only qua the account by the name of Asha Telecom (P) Ltd. but the guarantee was accepted by the bank also with regard to other forms of Verma family by the name of M/s Asha Enterprises and Asha Technologies. In this regard, it has been alleged by the plaintiff that no guarantee with respect to these two accounts was ever made by plaintiff and that the same is a result of forgery as the documents have been created by forging the signature of plaintiff to show the extension of guarantee with respect to other two accounts."
10. Therefore, the plaint, as such, cannot be rejected relating to preparing and using the forged documents as genuine based on the plea of fraud. All the issues raised are pure mixed questions of law & facts and can only be decided by the trial Court after receiving the evidence of the parties. All the contentions, now sought to be urged on behalf of defendant-bank, are not at all relevant at this initial stage and the same may be deeply necessary to be considered at the time of final arguments during the course of trial by the trial Court.
Arvind Kumar Sharma2014.01.17 12:23 I attest to the accuracy and integrity of this document Chandigarh Civil Revision Petition No.101 of 2014 (O&M) 5
11. Above-all, it is now well settled principle of law that plaint can only be rejected if it squarely falls within the ambit and four corners of Order 7 Rule 11 CPC and not otherwise. An identical question came to be decided by this Court in case Rajesh Grover v. Smt. Rita Khurana and others 2005 (4) RCR (Civil) 721 : (2006-2) PLR 244. After examining the relevant provisions of Order 7 Rule 11 CPC, it was held as under:-
"The Court should be circumspect in rejecting a plaint at the threshold as it entails very serious civil consequences. The Court should exercise this power only in those cases where it comes to the clear conclusion that any of the conditions enumerated in Clauses
(a) to (f) are satisfied and it should be so done in exceptional-circumstances. The truthfulness of narration of facts in the plaint or the written statement are not to be judged at the stage of rejection of plaint. That is a matter of evidence which the Court shall go into at the trial of the case. The weakness or the strength of the case of the parties is not to be judged at that stage. A distinction is to be drawn between rejection of a plaint and dismissal of a suit."
12. Therefore, the ratio of law laid down in the aforesaid judgment "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand. Otherwise also, such intricate questions cannot legally be decided by this Court at this initial stage in the absence of evidence on record. If all such points, which require determination by the trial Court, are to be decided by this Court in the garb of petition under Article 227 of the Constitution of India, then, the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as contemplated under the Code of Civil Procedure, which is not legally permissible.
13. Meaning thereby, the trial Court has examined the matter in right perspective and recorded the cogent grounds in this regard. Such order, containing valid reasons, cannot possibly be interfered with, in the exercise of revisional jurisdiction of this Court under Article 227 of the Constitution of India, unless and until, the same is illegal, perverse and Arvind Kumar Sharma 2014.01.17 12:23 I attest to the accuracy and integrity of this document Chandigarh Civil Revision Petition No.101 of 2014 (O&M) 6 without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner, so, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case.
14. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner-defendant bank.
15. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of main suit, as there is no merit, therefore, the instant revision petition is hereby dismissed as such.
16. Needless to mention that nothing recorded herein above would reflect on the merits of the case, in any manner, during the trial as the same has been so observed for a limited purpose of deciding the instant revision petition.
Sd/-
13.1.2014 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter ? Yes/No
Arvind Kumar Sharma
2014.01.17 12:23
I attest to the accuracy and
integrity of this document
Chandigarh