Bangalore District Court
Smt.D.Vijayalakshmi vs Sri.K.Ramesh on 11 February, 2015
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE (CCH :15) AT BENGALURU CITY
DATED THIS THE 25TH DAY OF JULY 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Additional City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT No. 1055/2007
BETWEEN:
PLAINTIFFS: 1. SMT.D.VIJAYALAKSHMI
W/o Sri.A.Dandayatham,
Aged about 53 years,
2. SRI.D.KIRAN
S/o Sri.A.Dandayatham,
Aged about 33 years,
3. SRI.D.DEEPAK
S/o Sri.A.Dandayatham,
Aged about 26 years,
All are residing at No.243,
6th Cross, 8th main,
II Block, Jayanagar,
Bangalore-560 011.
(By Sri.S.Subrahmanya, Advocate)
AND:
DEFENDANTS: 1. SRI.K.RAMESH
S/o sri.H.Krishnappa
Aged about 50 years,
2
O.S.1055/2007
R/at No.698, 15th Cross,
II phase, J.P.Nagar,
Bangalore-560 078.
2. SRI.SYED SHAKAVATH HUSSAIN
S/o Late Sri.Mir Zainulabedin,
Aged about 66 years,
R/at Alipur,
Gowribidanur Taluk,
Kolar District-561224.
Also No.17/2, Leonardo Lane,
Richmond Town,
Bangalore-560 025.
3. SMT.FARHANA BABU
W/o Syed Zamin Raza,
Aged about 33 years,
R/at Alipur,
Gowribidanur Taluk,
Kolar District-561224.
4. SRI.SYED ZAMIN RAZA
S/o Syed Shakavath Hussain,
Aged about 43 years,
R/at Alipur,
Gowribidanur Taluk,
Kolar District-561224
Also No.17/2, Leonardo Lane,
Richmond Town,
Bangalore-560 025.
5. SRI.KHALI SHAKIL ANJUM
S/o Late Sri.Kalil Ahmed Shariff
Aged about 53 years,
6. SRI.SUHAIL ANJUM
S/o Late Sri.Kalil Ahmed Shariff
Aged about 48 years,
3
O.S.1055/2007
7. SMT.SYEDA RAHMATH ANJUM
SUHAIL
W/o Sri.Suhail Anjum,
Aged about 40 years,
Defendants 5 to 7 are
R/at No.17/2, Leonard Lane,
Richmond Town,
Bangalore-560 025.
8. M/s. INDIAN BANK
Ulsoor Branch
Bangalore,
Represented by its Manager,
9. SRI.NANGENDRA KAUSHIK
Major in age
Father's name not known to the
plaintiff
10. SMT.SHRUTHI KAUSHIK
W/o Sri.Nagendra Kaushik,
Major in age
Defendants 9 and 10 are R/at
No.106, Serpentine road,
Kumara Park West Extension,
Bangalore-560 020.
(Defendant No.1 to 7 Placed ex-parte)
(Defendant No.8 Sri. G.K.Vachanna,
Advocate)
(Defendant No.9 &10 H. Srinivasa Rao,
Advocate)
Date of institution of the suit: 06.02.2007
4
O.S.1055/2007
Nature of suit: Declaration, Mandatory
Injunction and Permanent
Injunction
Date of commencement of -
Recording the evidence:
Date on which the judgment 25.07.2014
Was pronounced:
Total Duration : 7-Years, 5-Months &
19-Days.
ORDER
The plaintiffs have filed this suit against the defendants praying to declare that no mortgage is created over suit schedule B and C Properties and the eighth defendant cannot enforce their right of mortgage over the same and also to declare that the order dated 23/09/2010 passed in C.Misc.No.1690/2010 by the IX Addl.CMM, Bangalore is not binding on the plaintiffs and to grant mandatory injunction directing the eighth defendant to put the plaintiffs into peaceful possession and enjoyment of the suit schedule-B and C properties and to grant an order of permanent injunction restraining the defendants or anybody claiming under them from interfering with 5 O.S.1055/2007 peaceful possession of suit schedule property by the plaintiffs with costs.
SCHEDULE-A PROPERTY All the piece and parcel of the corporation property bearing No.39, 40 and 41 of Avenue road, Corporation Ward No.26, Chikkapet Range, Bangalore and measuring East to West 24.82 Meters and North to South 14.30 meters in all measuring 220.004 meters or 2367.243 Square Feet together with all easementary and other rights appurtenanance thereto and there upon and bounded on the :
East by : Private Property,
West by : Avenue road,
North by : Passage and Private Property
South by : Private Property
SCHEDULE-B PROPERTY
Item No.1 :
All that piece and parcel of the land being plinth area on which building is constructed in the Schedule A Property above 58.98 Square Feet undivided share right, 6 O.S.1055/2007 title and interest in the land comprised in the Composite Property mentioned in the Schedule-A Property.
Item No.2 :
All that piece and parcel of the land being plinth area on which building is constructed in the Schedule A property above 63.83 Square Feet undivided share right, title and interest in the land comprised in the Composite Property mentioned in the Schedule A Property.
Item No.3 :
All that piece and parcel of the land being plinth area on which building is constructed in the Schedule A Property above 85.52 Square Feet undivided share right, title and interest in the land comprised in the Composite Property mentioned in the Schedule-A-Property.
SCHEDULE-C PROPERTY Item No.1 :
Unit No.39/1 in the Ground floor of the said building known as Govardhan Avenue is having a saleable area of 199.30 Square Feet.
Item No.2 :7
O.S.1055/2007 Unit No.39/2 in the Ground Floor of the said building known as Govardhan Avenue is having a saleable area of 215.70 Square Feet.
Item No.3 :
Unit No.39/3 in the Ground Floor of the said building known as Govardhan Avenue is having a saleable area of 289 Square Feet.
PARTICULARS OF THE UNITS Year of Construction : 1996 Flooring : Mosaic, Windows : Steel Roof : RCC Cement
2. The case of the plaintiffs in brief is as under:
It is averred that the plaintiffs are the absolute owners in peaceful possession and enjoyment of suit properties, and at the time of purchase they have got verified and on verification, the plaintiffs had come to know that the schedule-B and C properties were 8 O.S.1055/2007 mortgaged to M/s. Indian Bank, Richmond Town Branch, Richmond road, Bangalore-560 025. The said mortgage was created by the defendants 2 to 4 and the said mortgage was discharged by the letter dated 01/02/2005 issued by the said M/s. Indian Bank and there was no any charges created and all the original documents were handed over by defendants 5-7 and in fact, the schedule-B and C properties were leased in favour of the 2nd and 4th defendant and the said lease was also revoked by virtue of a Registered Revocation Deed dated 11/05/2006.
It is further averred that after the purchase of schedule-B and C properties, the plaintiffs are in possession of the same being its absolute owners. The plaintiffs have also got the Khata changed to their favour by paying taxes and other outgoings regularly. Such being the case recently i.e., in the month of November, 2006 some persons claiming to be the officials of the 8th defendant Bank have come near the schedule C property and have claimed that the Schedule properties are mortgaged to 8th defendant Bank and have attempted to dispossess the plaintiffs and they resisted the same with great difficulty.9
O.S.1055/2007 Immediately, the plaintiffs have caused a legal notice dated 29/11/2006 on the 8th defendant calling upon them to give particulars of the mortgage created in their favour and in their reply dated 15/12/2006, the 8th defendant have required the plaintiffs to produce the documents of their title to give the necessary information. The plaintiffs by their letter dated 25/12/2006 have furnished the same to eight defendants. Inspite of acknowledging the receipt of the said letter, the 8th defendant has not furnished the information till date.
It is pleaded that recently on 01/02/2007 at about 4.00 p.m., and during pendency of the suit on 12.11.2010, some people again came near the schedule C property and attempted to dispossess the plaintiffs claiming to be the officials of the 8th defendant Bank.
The 1st plaintiff has executed a power of attorney in favour of the 2nd plaintiff to represent her in the above suit. The defendants are men with money and muscle. If an order of injunction restraining defendants from interfering with the peaceful possession and enjoyment of the suit schedule B and C properties is granted, the plaintiffs would suffer irreparably.
10O.S.1055/2007 It is further pleaded that when enquired as to the reasons for their highhanded and illegal acts, they have brought to the notice of the plaintiffs as to the order dated 23/09/2010 passed in C.Mis.No.1690/2010, on the file of IX Addl.CMM at Bangalore and certified copy of the application u/S.13(4)(a) R/W Sec.14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Immediately thereafter, the plaintiffs have brought to the notice of the 8th defendant that they are not parties to the said proceedings in C.Mis.No.1690/2010 and the said order is binding on them and they have leased the property to one Sri. Afsal Pasha in the name and style M/s.Smart Sales and if he is disposed without even notice, they suffer irreparably as it is not even practically possible to identify an alternate accommodation even to store their huge stocks and in case of any action by their tenant, they suffer irreparably for not fault of theirs and at the time of the purchase of the suit schedule-B and C properties, they were not even aware of any creation of mortgage in favour of the 8th defendant and the same was not even reflected in the encumbrance certificates. For the first time, the plaintiffs have come across as to the unregistered deed of equitable mortgage executed in favour of the 8th defendant by their predecessors in title 11 O.S.1055/2007 and 8th defendant had specifically permitted their borrowers to sell the apartment units/properties and repay the debt to the 8th defendant.
Moreover, the alleged equitable mortgage is not even executed legally and the same is unenforceable. The eighth defendant can only enforce against the unsold properties if any and initiating proceedings against the principal borrowers and guarantors, if any.
It is further averred that despite of their protest, the officials of the 8th defendant under the guise of executing the order in C.Misc.No.1690/2010 have dispossessed the plaintiffs from the suit schedule-B and C properties. Being aggrieved by the high handed and illegal acts of the 8th defendant, the plaintiffs have filed a Writ Petition in W.P.No.36812-36814/2010 before the Hon'ble High Court of Karnataka and in the said writ petitions the Hon'ble Court of Karnataka was pleased to pass an interim order for a period of one month. The said order was communicated to the eighth defendant. Even after the receipt of the said communication, the eighth defendant had taken initiative to sell the suit schedule-B and C properties being aggrieved by the said high handed 12 O.S.1055/2007 actions of the 8th defendant, the plaintiffs were compelled to lodge a complaint with the jurisdictional police.
The plaintiffs have suffered substantially on account of the illegal and high handed acts of the 8th defendant.
Hence, plaintiffs are constrained to file this suit praying above reliefs.
3. On receipt of suit summons, the defendant No.8 to 10 entered appearance through their counsels. Whereas, the defendant No.1 to 7 did not appear; therefore, they placed exparte.
4. The defendant No.8 Indian Bank has filed written statement contending inter alia that suit is not maintainable and it is barred under SARFAESI Act, 2002.
5. Thereafter defendant No.9 and 10 have filed I.A.14 under order 7 Rule 11(d) of CPC, 1908 praying to reject the plaint; since it is barred under SARFAESI Act.
On the other hand, plaintiffs have filed objection to I.A.14.
13O.S.1055/2007
6. Now, only following point arises for my consideration and decision and it is that :
POINT
1) Whether this suit is barred by SARFAESI Act, 2002 as per plaint averments and as stated in I.A.14?
I heard and perused relevant documents on record.
7. My findings on the aforesaid point is as under:
Point No.1 - Affirmative (Suit is barred and Not maintainable) As per final order for the following:
REASONS
8. Point No.1: In this case, in support of I.A.14, the learned counsel appearing for defendant No.9 and 10 urged that the suit is not maintainable, vexatious and frivolous and it is barred U/Sec. 34 of Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002.
14O.S.1055/2007
9. On reading of plaint, it is seen that plaintiffs are said to be purchasers of ground floor unit of building known as Goverdhan Avenue. The plaint allegations disclose that the 8th defendant Bank of India and its officials, as per order dtd. 23.09.2010, passed in C. Misc. No.1690/10 on the file of IX ACMM, Bangalore dispossessed from schedule -B and C properties. It clearly shows that the subject matter of the suit comes under SARFAESI Act, 2002. The defendant No.9 and 10 are said to be bona fide purchasers of suit properties under sale deed for valuable consideration in an public auction.
10. The plaintiffs have produced following documents in support of their case i.e.
1. Original registered sale deed dtd. 21.08.2006.
2. Original letter dtd. 01.03.2005 issued by M/s. Indian Bank.
3. Original registered sale deed dtd. 01.02.2005 executed in favour of defendant No.5 to 7 by their vendors.
4. Original revocation deed of lease dtd. 11.05.2006 On perusal of said documents, it can be seen and concluded that although, the plaintiffs are purchased the 15 O.S.1055/2007 suit properties from their vendors, for construction of building, their vendors have borrowed loan from the 8th defendant- Bank by mortgaging the property in dispute; therefore, there is creation of charge on the said property.
11. In this instant case, the defendants-9 & 10 have also produced following documents i.e.
1. Copy of the order passed by the Hon'ble High Court in W.P.36812-814/2010 dtd. 14.01.2011.
2. Copy of the Possession Notice Letter dtd. 11.10.2007.
3. Copy of the paper publication published in the Indian Express - English Daily Newspaper.
4. Copy of the letter dtd. 22.06.2010.
5. Copy of order dtd. 22.06.2011 in S.A.No.165/2011.
6. Copy of order dtd. 22.07.2008 in S.A.No.353/2007.
7. Copy of the Advertisement issued by Indian Bank.
16O.S.1055/2007
8. Copy of the Tender cum bid.
9. Copy of the document dtd. 24.06.2011.
10. Copy of the letter dtd. 24.06.2011.
11. Copy of the registered sale certificate dtd. 30.06.2011.
12. Copy of the letter dtd. 01.07.2011.
13. Copy of the Execution and Registration of the sale Certificate dtd. 13.07.2011 took physical vacant possession of the property.
14. Copy of the Khata extract.
15. Copy of the Khata certificate.
16. Copy of the encumbrance certificate.
In this instant case, the defendants-8 Indian Bank has also produced following documents i.e.
17. Copy of Sanction ticket
18. Copy of Equitable Mortgage deed.
19. Copy of sale deed dtd. 29.12.1994.
20. Copy of sale deed dtd. 05.01.1995.
21. Copy of Sale deed dtd. 16.01.1995.
17O.S.1055/2007
22. Copy of Sale deed dtd. 27.03.1995.
23. Copy of Copy of the order passed in O.A. No.194/2000.
24. Copy of Recovery certificate in DCP 2544.
25. Copy of Legal notice dtd. 25.12.2006.
26. Copy of Reply notice dtd. 15.12.2006.
12. On perusal of the above documents produced by the concerned defendants, it is crystal clear that the defendant -Bank has issued possession notice and taken symbolic possession of suit property and paper publication is also made and order from the concerned Magistrate to auction the property is also taken and then, property is sold in auction to the defendants 9 and 10 and the said property is also got transferred in their names. The proceedings are taken place under SARFAESI Act. Therefore, the provisions of SARFAESI Act are squarely applicable.
13. At this stage, it is relevant to mention that since, the defendant No.8 is Bank, if any dispute in respect of suit property is arose, then Debt Recovery Tribunal has jurisdiction as per Sec. 17 of SARFAESI Act, 2002. Therefore, this court has no jurisdiction to entertain and try this kind of suit.
18O.S.1055/2007
14. At this juncture, it is important to note that the provision of section 34 of Securitsation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, (SARFAESI) 2002 clearly bars the jurisdiction of civil court.
15. In this context, it useful to refer a ruling relied by defendants counsel in Canara Bank, Khammam Branch rep.by its Branch Manager Vs. Jetti Samba siva rao and others (AIR 2014 AP 67), wherein, the Hon'ble Andhra Pradesh High Court is held that "SARFAESI Act, 2002, Ss. 13(4), 17, 34 and 35
- Taking possession of secured assets - injunction against - jurisdiction of court to entertain injunction suit is expressly barred in view of section 34 of the Act - even if possession is taken illegally, party has to approach authority under Section 17 of the Act".
16. In this instant case, the plaintiffs averred that there is no creation of charge legally and possession is taken illegally that being so, the plaintiffs have to approach DRT under Section 17 of said act.
19O.S.1055/2007
17. It is also profitable to refer another ruling relied by the defendants counsel in K.R. Radhakrishnan Vs. K & N Trade and State Bank of India(MANU/TN/1572/2012), wherein the Hon'ble Madras High Court has held as under:
"The tenancy of 1st respondent/plaintiff was created after mortgage of property in possession to secured creditor like Bank - Further when tenant well known that there would be recovery or taking over of possession of mortgaged property or otherwise and entered into lease agreement with landlord it was for him to seek protection before DRT-Even as there was inconsistency, repugnancy or overlapping mortgaged property was under seizure of secured creditor and if any person come into picture in between remedy for him lies only before forum and not civil court -
moreover, there was clear bar of jurisdiction for civil court under Section 34 of SARFAESI Act".
18. It is also gainful to refer another ruling relied by the defendants counsel in SWADESHI CEMENTS LTD. AND OTHERS VS. UNION OF INDIA AND OTHERS 20 O.S.1055/2007 (MANU/DE/3984/2010), wherein, the Hon'ble Delhi High Court has held that : -
Suit for declaration - the plaintiffs challenged in the present suit, the auction proceedings of secured assets of the plaintiffs by defendant-3 in pursuance to the notice under Section 13(4) of the SARFAESI Act - Held present suit is clearly barred by Sections 13, 17, 18 and 34 of SARFAESI Act, and therefore, the plaint rejected under Order VII Rule 11(d) of CPC - all the applications stand dispose off.
19. In this context, it is also gainful to refer a ruling in AIR 2010 SUPREME COURT 3413 in case of United Central Bank of India Vs. Satyawathi Tondon & Ors., wherein the Hon'ble Supreme Court of India is held as under:
"(b) Securitsation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), Ss.17, 13(4) -
Constitution of India, Art. 226 - Remedies against action for recovery of secured debt -Words "any person in S.17 - Includes guarantor or any person affected by action taken under S.13(4) - Writ Petition filed by 21 O.S.1055/2007 guarantor against such action - Entertainment of by High Court - Misconceived as effective alternative remedy is available."
Further, in the same judgment in para No.2 it is observed that : "The new legislation facilitated creation of specialized forums i.e. the Debt Recovery Tribunals and the Debt Recovery Appellate Tribunals for expeditious adjudication of disputes relating to recovery of the debts due to banks and financial institutions. Simultaneously, the jurisdiction of the Civil courts was barred and all pending matters were transferred to the Tribunals from the date of their establishment".
Further it is observed that: "The Tribunals and the Appellate Tribunals have also been freed from the shackles of procedure contained in the Code of Civil Procedure. To put it differently, the DRT Act has not only brought into existence special procedural mechanism for speedy recovery of the dues of banks and financial institutions, but also made provision for ensuring that defaulting borrowers are not able to invoke the jurisdiction of Civil Courts for 22 O.S.1055/2007 frustrating the proceedings initiated by the banks and other financial institutions".
Further in the same judgment and para No.4 it is held that : Section 17 speaks of the remedies available to any person including borrower who may have grievance against the action taken by the secured creditor under sub-section (4) of Section 13. Such aggrieved person can make an application to the Tribunal within 45 days from the date on which action is taken under that sub-section.
Further, in para-6 of the judgment it is held that: In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal.
Further, in the para-22 of the judgment it is held that: The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of an appeal under Section 20 and this fast track procedure cannot be 23 O.S.1055/2007 allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the Appeal mechanism provided by the Act."(same principle is laid down in Mardia Chemical Ltd. Vs. Union of India and others AIR 2004 SC 2371 and Transcore V. Union of India and another (2008)1 Supreme Court Cases 125).
From the supra noted rulings, it is crystal clear that if the plaintiffs are aggrieved then, they can approach DRT under the relevant provision(Sec.17). The principle laid down is squarely applicable to the case on hand.
24O.S.1055/2007
20. It is also profitable to refer another decision in AIR 2011 KARNATAKA 138 in case of M.G.Ashwatha Shastri v. Canara Bank, wherein the Hon'ble High Court of Karnataka is held as below:
"Securitsation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), Ss.34, 17 - Civil. P.C. (5 of 1908), S.9 - Ouster of jurisdiction of Civil Court - Enforcement of Security Interest UNDER SECTION 13 - Suit for injunction by tenant - Not maintainable before Civil Court - Word "any person" used in S.17 includes not only borrower but even a non-borrower aggrieved by action of bank or any financial institution - Even tenant can file an appeal Under Sec. 17 against order passed U/Sec. 13 of Act - filing of suit before Civil Court, barred U/Sec. 34 of Act."
21. At this juncture, it is also relevant to extract the relevant provision of law i.e. Section 34 of SARFAESI Act, 2002, it reads as under:
"Sec. 34. Civil Court not to have jurisdiction :- No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of 25 O.S.1055/2007 any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1933 (51 of 1993).
Sec. 35. The provisions of this Act to override other laws:- The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law."
Supra mentioned rulings and the relevant provisions of law also made it crystal clear that this Civil Court is not having jurisdiction to entertain and try this kind of suit and suit is not maintainable.
22. Moreover, it is also worth mentioning to note down a Section 9 of CPC, 1908 which provides that the courts can try all civil suits unless barred. Said provision is extracted for convenience, it is as follows:
26O.S.1055/2007
9. Court to try on civil suits unless barred -
the court shall (subject to provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Here, in this case also, the suit is expressly barred under SARFAESI Act, 2002 to entertain and try. Therefore, it is clear that suit is not maintainable in the eye of law.
23. At this juncture, it is also relevant to refer the provision of Order VII Rule 11 of CPC, it reads as under:
11. Rejection of plaint - the plaint can be rejected in the following cases: -
a. where it does not disclose a cause of action;
b. where the relief claimed is under valued, and the plaintiff, being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
c. where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the 27 O.S.1055/2007 requisite stamp paper within a time to be fixed by the court, fails to do so;
d. Where the suit appears from the statement in the plaint to be barred by any law;
e. Where it is not filed in duplicate;
f. Where the plaintiff fails to comply with provisions of Rule 9.
A perusal of above provision made it clear that if the suit is barred by law upon a meaningful but not formal reading of the plaint, it can be rejected.
24. In this context, it is relevant to refer a decision in Church of Christ Charitable Trust V/s. Ponniamman Educational Trust (2012(8) SCC 706, wherein it is held that "The trial court can exercise the power under Order VII Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage".
28O.S.1055/2007 It is further held that the learned Munsiff must remember that if on a meaningful and formal reading of a plaint, the allegation in the plaint is manifestly vexatious, and merit less and not disclosing a clear right to sue or materials to sue, it is the duty of trial Judge to exercise his power Under Order 7 Rule 11 of CPC taking care to see that the ground mentioned therein is fulfilled. And if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party under Order X of CPC.
An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The penal code (Ch.XI) is also resourceful enough to meet such men, and must be triggered against them.
It is trite law that not any particular plea has to be considered, and the whole plaint has to be read.
A cause of action is a bundle of facts which taken with the law applicable to them, gives the plaintiff the right to relief against the 29 O.S.1055/2007 defendant; a cause of action must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue.
The statutory forms require the date of agreement to be mentioned to reflect that it does not appear to be barred by limitation. In addition to the same, in a suit for specific performance, there should be an agreement by the defendant or by a person duly authorised by a power of attorney executed in his favour by the owner.
It is settled law that where a document is sued upon and its terms are not set out in the plaint. But, referred to in the plaint, said document gets incorporated by reference in the plaint(U.S. Sasidharan V/s. K. Karunakaran) 1989 (4) SCC 482; Manohar Joshi V/s. Nitin Babu Rao patil and another (1996(1) SCC 169).
In view of conduct of the plaintiff, bereft of required materials as mandated by the statutory provisions plaint is liable to be rejected at this stage itself as cause of action pleaded in the plaint is vitiated.
30O.S.1055/2007
25. It is also helpful to refer a case in HANUMAPPA AND OTHERS V/S. CHIKKANNAIAH AND OTHERS 2008(5) KCCR SN 633, wherein it is held that :
"Though the plaint contains at para 8a pleading with regard to the cause of action to the suit, the question is, whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to overcome the provisions contained in Rule 11 of Order VII CPC. It is now settled position of law that, clever drafting creating illusions of cause of action, are not permitted in law and a clear right to sue, should be shown in the plaint. A reading of the plaint shows that, there is no real cause of action and what has been set out in the plaint is nothing but illusory".
On conjoint and critical examination of the plaint, it does not disclose cause of action and it is vague claim.
26. In the same judgment another decision referred in 'MAYAR (H.K.) LTD. AND OTHERS VS. OWNERS & PARTIES, VESSEL M.V. FORTUNE EXPRESS AND OTHERS' reported in (2006) 3 SCC 100 wherein it is held that 31 O.S.1055/2007 "Since cause of action is a bundle of facts, which are required to be proved for obtaining the relief. The said decision primarily was relating to suppression of material facts in the plaint. We have read the plaint in its entirety. Except being a clever drafting, creating an illusion of a cause of action, on a meaningful reading, it does not disclose a cause of action, considering the admitted facts of the case, noticed supra".
27. It is also advantageous to refer a authority in T. ARIVANDANDAM V/S. T.V. SATYAPAL AND ANOTHER 1977 AIR 2421, wherein it is held that the Pathology of litigative addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases. Further, it is further held that, "If on a meaningful and formal reading of a plaint, the allegation in the plaint is manifestly vexatious, and merit less and not disclosing a clear right to sue or materials to sue, it is the duty of trial Judge to exercise his power Under Order 7 Rule 11 of CPC taking care to see that the ground mentioned therein is fulfilled. And if clever, drafting has created the 32 O.S.1055/2007 illusion of a cause of action, nip it in the bud at the first hearing by examining the party under Order X of CPC. An activist Judge is the answer to irresponsible law suits".
28. It is lucrative to note down a decision in SOBAN SUKHDEO AND OTHERS VS. ASSISTANT CHARITY COMMISSIONER AND OTHERS 2004(3) SCC 137, wherein it is held that "The whole plaint has to be read the intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair - splitting technicalities".
Keeping in view of the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is 33 O.S.1055/2007 a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised.
29. At this juncture, it is also useful to refer a decision in H.V.RAMAKRISHNA AND OTHERS VS. THE AUTHORISED OFFICER, SYNDICATE BANK MALLESWARAM MAIN BRANCH, BANGALORE AND OTHERS [2010(1) Kar.L.J.267, wherein the Hon'ble High Court of Karnataka is held that "SECURITISATION & RECONSTRUCTION OF FINANCIAL ASSETS & ENFORCEMENT OF SECURITY INTEREST ACT, 2002, Section 13(2) and (13) and 14 - Constitution of India, Article 226 - Secured asset - Tenancy created in respect of residential premises offered as - Validity of tendency - Locus standi of tenant to challenge order passed by Chief Metropolitan Magistrate, on application filed by secured creditor-Bank, under Section 14 of the Act, for taking possession of secured asset from defaulting borrower including right to transfer asset by way of lease, assignment or sale - Where right claimed by tenant was under
tenancy created by defaulting borrower after he received notice under Section 13(2) of the Act from secured creditor -Bank, 34 O.S.1055/2007 calling upon him to discharge his liability within sixty days of receipt of notice and created without prior written consent of secured creditor-Bank, tenancy, held is not valid, and consequently, tenant has no locus standi or right to challenge order passed by CMM under Section 14 of the Act.
Since, I already held, the plaintiffs have no cause of action giving right to sue. The plaintiffs have no any right to file this kind suit before civil court. In my view, it is frivolous and meritless suit. Therefore, the supra noted authorities are aptly applicable to the case on hand on the same footing.
30. In view of aforesaid reasons and observations made in the light of rulings and relevant provisions of law, under the given set of facts and circumstances of this case, I am of the considered view and constrained to hold that this suit is barred/hit by provisions of SARFAESI Act, 2002, and also not maintainable in the eye of law.
Hence, I hold and record my findings on point No.1 in affirmative (as suit is not maintainable). Accordingly, I proceed to pass the following:
35O.S.1055/2007 ORDER In the result, therefore plaint filed by the plaintiffs U/O VII Rule 1 & 2 of CPC is hereby rejected; along with this, all the I.A's if any, filed/pending are also disposed off accordingly.
ii. Consequently, this suit filed by the plaintiffs is hereby dismissed as barred by law and not maintainable in the eye of law.
iii. Under the facts and circumstances of present case, no order as to costs.
iv. Draw decree accordingly.
(Dictated to the Stenographer, directly over computer, typed matter, corrected and then pronounced by me in the open Court on this the 25th day of July, 2014.) (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Addl. City Civil & Sessions Judge, Bengaluru.
______ 36 O.S.1055/2007 25.07.2013 P - SS D1 to 7 - Placed exparte D8 - GKV D9-10 HSR For Orders (The following order is pronounced in the open court vide separate) ORDER 37 O.S.1055/2007 In the result, therefore plaint filed by the plaintiffs U/O VII Rule 1 & 2 of CPC is hereby rejected; along with this, all the I.A's if any, filed/pending are also disposed off accordingly.
ii. Consequently, this suit filed by the plaintiffs is hereby dismissed as barred by law and not maintainable in the eye of law.
iii. Under the facts and circumstances of present case, no order as to costs.
iv. Draw decree accordingly.
VIII ACC & SJ, Bengaluru.