Ashok Kumar Subba vs Kamal Kumari Subba And Ors on 10 March, 2022

[Cites 7, Cited by 0]

Sikkim High Court

Ashok Kumar Subba vs Kamal Kumari Subba And Ors on 10 March, 2022

1. The Appellant herein filed a Suit before the Learned Trial Court being Title Suit No.33 of 2014, claiming to be the owner of four and half storeys of a five storied building, standing on two contiguous plots of land in Gangtok, East Sikkim. That, the suit premises were acquired by him in the name of his wife in the year 2005, having obtained Bank loan in his wife's name and paid the consideration amount of Rs.90,00,000/- (Rupees ninety lakhs) only. He stood as Guarantor for the loan in terms of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Being in the business RSA No.04 of 2020 2 Ashok Kumar Subba vs. Kamal Kumari Subba and Others of lottery, he repaid a sum of 45,88,461/- (Rupees forty five lakhs, eighty eight thousand, four hundred and sixty one) only, to the Bank from his own resources, but an amount of Rs.64,71,000/- (Rupees sixty four lakhs and seventy one thousand) only, was not disbursed by the lender Bank leading to acute financial crisis for the Appellant. Consequently, both he and the Respondent No.1, his wife, decided to dispose of the suit premises to the Respondent No.2 at a consideration value of Rs.3,00,00,000/- (Rupees three crores) only, vide an Agreement dated 18-04-2013. That, both Respondent No.1 and Respondent No.2 colluded and coerced him into signing a "No Objection Certificate" (NOC) to sell the property, assuring him that the excess of the sale proceeds after payment of loan would be made over to him. A total amount of Rs.1,10,00,000/- (Rupees one crore and ten lakhs) only, was paid by the Respondent No.2, on his behalf, to liquidate the loan account as a one time settlement. He averred that the Agreement for Sale is void since properties of a tribal to which community he belongs, cannot be transferred to Respondent No.2, a non-tribal. In order to prevent registration of the suit premises in the name of Respondent No.2 the Appellant issued a Notice under Section 80 of the Code of Civil Procedure, 1908 (CPC). The Plaint was accompanied by an application under Order XXXIX Rules 1 and 2 of the CPC wherein the Appellant inter alia averred that he had signed on the NOC but having come to learn that the transaction between Respondent No.1 and Respondent No.2 was illegal he withdrew it. That, Respondent No.1 in fact had no Stridhan to purchase the properties. Hence, the prayers in the Plaint inter alia seeking a declaration that the NOC was void ab initio; that the Respondent RSA No.04 of 2020 3 Ashok Kumar Subba vs. Kamal Kumari Subba and Others No.1 had no right, title and interest in the suit premises and transfer of the properties to the Respondent No.2 would be illegal, void and inoperative being in contravention to the Prohibition of Benami Property Transactions Act, 1988.

2. In her written statement the Respondent No.1 claimed to be from a reputed family besides which she was a 50% partner in the lottery business along with the Appellant as also in his business venture in Nepal. While denying and disputing the averments of the Appellant regarding ownership of the property she claimed to be the sole owner of the suit premises having purchased the contiguous plots in 1988 from two different sellers with her Stridhan. After purchase she constructed a multistoried building on the said plots of land. In the year 2005, she availed of a loan of Rs.90,00,000/- (Rupees ninety lakhs) only, from the United Bank of India, for renovation of the building as the sole borrower and the Appellant stood as a Guarantor. That, in 2011, on account of several reminders from the Bank for non-repayment of loan she through her son made a request to the Respondent No.2 who helped her repay the loan amount, thus the Suit having no basis be dismissed with exemplary costs.

3. The Respondent No.2 in his written statement denied and disputed the Suit of the Appellant as being based on falsity and concealment of facts. That, in fact, he and the Respondent No.1 had executed a Money Receipt/Agreement of Sale, whereby he agreed to purchase the suit premises for a consideration of Rs.3,00,00,000/- (Rupees three crores) only, of which part payment of Rs.1,10,00,000/- (Rupees one crore and ten lakhs) only, was made for liquidation of the Bank loan of Respondent RSA No.04 of 2020 4 Ashok Kumar Subba vs. Kamal Kumari Subba and Others No.1. That, they had never entered into an Agreement with the Appellant nor promised to pay him the remnants of the sale amount after deduction of loan amount. That, claim of execution of an NOC was fictitious, hence the Appellant's Suit be dismissed.

4. On the basis of the pleadings of the parties the Learned Trial Court settled the following issues for determination;

(a) Whether the Plaintiff is the absolute owner of suit property having bought the same for his earnings?

(b) Whether the Defendant No.1 is the bona fide and absolute owner of the suit property having purchased the same from her Stridhan?

(d) Whether the Sale Deed dated 21-04-2014 and other related documents with respect to transaction of the suit property are illegal, void, inoperative and against the law of the land?

(e) Whether the Defendant No.2 is the bona fide purchaser of the suit property having paid consideration amount for the same and whether he is not prevented from Scheduled Castes and Scheduled Tribes laws of Sikkim?

(f) Whether the Plaintiff has the sole authority to deal with the property in the capacity of Karta of the family?

(g) Whether the Plaintiff is the absolute owner of the suit property having purchased the same with his personal earnings in the Benami of his wife, i.e., Defendant No.1?

5. Issues (a) and (g) were taken up together for consideration and the Learned Trial Court decided the said Issues against the Appellant on his inability to prove that the suit property was purchased benami by him from his earnings and registered in RSA No.04 of 2020 5 Ashok Kumar Subba vs. Kamal Kumari Subba and Others the name of Respondent No.1. Issue (f) was also decided against the Appellant with the observation that the existence of a Joint Hindu Family or coparcenary could not be proved. Issue (b) also went against the Appellant, the Learned Trial Court having concluded that the Respondent No.1 is the bona fide and absolute owner of the suit property which was purchased from her Stridhan. Issue (c) was decided in favour of the Respondent No.1 with the observation that the other Issues had been decided in her favour. In Issue (d) it was found that there was no express bar against the Respondent No.2 from holding the suit building and there was no illegality in the Sale Deed, dated 21-04-2014 and other related documents. Issues (d) and (e) went in favour of the Respondent No.2. The Suit of the Appellant thus stood dismissed.

6. Aggrieved thereof, the Appellant was in Appeal before the Learned Court of the District Judge, Special Division II, at Gangtok, which after due consideration of all the facts and evidence including documentary evidence furnished upheld the Judgment of the Learned Trial Court. The Appellant is now before this Court aggrieved by the decision of the Learned First Appellate Court.

7. This Court admitted the instant Second Appeal by formulating the following substantial question of law;

(i) Whether the Learned Courts below failed to appreciate the evidence, including the documentary evidence, in its correct perspective?

8. Learned Counsel for the Appellant advancing his arguments conceded that there were no documents to establish purchase of the suit property by the Appellant or registration of the RSA No.04 of 2020 6 Ashok Kumar Subba vs. Kamal Kumari Subba and Others property in his name. That, admittedly the suit property and the land on which it stood were registered in the name of the Respondent No.1. It was contended however that the properties were purchased by the Appellant from his sole income and the Learned Trial Court and the Learned First Appellate Court had failed to appreciate that Exhibit P8 established that the Appellant was the recipient of a large amount of money which he invested in the suit property. That, the Respondent No.1 was a housewife sans income, besides she hailed from a humble family lacking the wherewithal to purchase such property. Her parents lacked the finances to give her any Stridhan and her claim of purchase of properties from her Stridhan is concocted. That, the Appellant had purchased the property by way of benami transaction in the name of Respondent No.1 and was thereby the rightful owner. In the absence of appreciation of the documents of income relied on by the Appellant to establish that he had purchased the suit property, the impugned Judgment deserves to be set aside.

9. Learned Counsel for the Respondent No.1 while reiterating the averments made in her Written Statement, submitted that Exhibit P8 is dated 04-08-1988, whereas the Respondent No.1 had already purchased the landed properties in February, 1988 and July, 1988. That, it is an admitted fact that the Respondent No.1 was a partner in M/s. Bindhya Agency, the lottery business, being run by the Appellant and the Respondent No.1 jointly and she therefore earned 50% of the income therein. That, the Suit of the Appellant deserves to be dismissed as there is no proof of his ownership by way of documentary evidence and the RSA No.04 of 2020 7 Ashok Kumar Subba vs. Kamal Kumari Subba and Others plea of benami transaction is an afterthought besides being legally untenable.

10. Learned Counsel for the Respondent No.2 submitted that the bogey of benami transaction has been raised subsequently as an afterthought. That, the Appellant was merely a Guarantor to the loan of Rs.90,00,000/- (Rupees ninety lakhs) only, obtained by the Respondent No.1 for the purposes of renovation of her building to transform it into a Hotel. Before the Debt Recovery Tribunal in Guwahati the Appellant was the Power of Attorney holder of the Respondent No.1, he however made no claim of ownership of property. That, his claim of ownership and benami transaction arose only after one Bimal Kumar Jain filed a Title Suit No.412 of 2013 (Bimal Kumar Jain vs. Smt. Kamal Kumari Subba and Another) before the Learned Civil Judge, East Sikkim, at Gangtok, in which Second Appeal was filed in this Court. It is not disputed by the Appellant that the documents of Title are in the name of the Respondent No.1 and the Appellant has shown nothing to establish that he is the owner. The Appellant has thus not come with clean hands before the Court, accordingly this Appeal should be dismissed with exemplary costs.

11. Learned Government Advocate appearing for Respondent No.3 submitted that no reliefs were sought from him and thus he had no submissions to put forth.

12. The submissions advanced by Learned Counsel for the parties were heard at length and duly considered. The pleadings, all evidence, documents on record and the Judgments of the Learned Courts below have been carefully perused. RSA No.04 of 2020 8

Ashok Kumar Subba vs. Kamal Kumari Subba and Others

13. While taking up the substantial question of law formulated hereinabove it is essential to mention that I have perused documents Exhibit P1 to Exhibit P206 relied on by the Appellant. The documents have no connection whatsoever with the instant matter in which the Appellant is primarily to prove that he is the owner of the suit premises as claimed by him. Exhibit P188 dated 27-06-2005 is an application filed by the Respondent No.1 before the Bank Manager of United Bank of India seeking a Term Loan of Rs.154.71 lakhs (Rupees one crore, fifty four lakhs and seven-one thousand) only. The Appellant is neither the applicant nor does the document mention him. Exhibit P194 is a money receipt executed between Respondent No.1 and Respondent No.2 for purchase of the suit properties for a consideration value of Rs.3,00,00,000/- (Rupees three crores) only. The Appellant is a witness to the execution of this document of his own volition, thereby well aware of what transpired between the Respondents regarding sale and purchase of the suit property. He lodged no complaint of having been coerced by the Respondents to execute any document before any authority. Exhibit 8 relied on by the Appellant, is proof of refund of Prize Money amounting to Rs.13,25,600/- (Rupees thirteen lakhs twenty five thousand and six hundred) only, dated 04-08-1988. How this document assumes importance or buttresses the case of the Appellant as the alleged purchaser of the suit properties cannot be comprehended. The other documents relied on by the Appellant being Exhibit 1 to Exhibit 187 pertain to the lottery business of M/s. Bindhya Agency with its Office in Lajpat Nagar, New Delhi, and lend no credence to the claim of the Appellant with regard to purchase and ownership RSA No.04 of 2020 9 Ashok Kumar Subba vs. Kamal Kumari Subba and Others of the suit properties. Similarly, Exhibit 189 to Exhibit 206 are of no assistance whatsoever to establish even the prima facie case of the Appellant, this despite walking meticulously through the evidence and documents relied on by him. It thus emerges with clarity that he has no documentary evidence whatsoever to verify his claim of ownership over the suit property. To a large extent the documents indicate amounts of money received by the Appellant from his lottery business, but this alone does not suffice to establish that he purchased the suit property sans specific trail of income, investment, viz., purchase of the suit property, and registration of it in his name.

14. Now, coming to the question of benami transaction. Section 2(9)(A)(b)(iii) of the Prohibition of Benami Property Transactions Act, 1988, provides as follows;

"2. .................................................................

(1) ............................................................ (2) ............................................................ (3) ............................................................ (4) ............................................................ (5) ............................................................ (6) ............................................................ (7) ............................................................ (8) ............................................................ (9) "benami transaction" means,--

(A) a transaction or an arrangement--

(a) ........................................

(b) ......................................... except when the property is held by--

(i) ...........................................

(ii) ............................................

                                                (iii)   any person being an
                                                        individual in the name of
                                                        his spouse or in the name
                                                        of any child of such
                                                        individual     and     the
                                                        consideration for such
                                                        property      has     been
                                  RSA No.04 of 2020                                  10

Ashok Kumar Subba vs. Kamal Kumari Subba and Others provided or paid out of the known sources of the individual;

(iv) ......................................."

The legal provision is self-explanatory and the Appellant cannot take shelter under this provision.

15. It thus stands to conclude that the Appellant failed to establish even a prima facie case and his Suit was rightly dismissed. The concurrent findings of the Learned Courts below are upheld. The impugned Judgment and Decree of the Learned First Appellate Court warrants no interference.

16. Appeal is dismissed.

17. No order as to costs.

18. Pending applications, if any, also stand disposed of

19. Copy each of this Judgment be sent to the Learned Courts below for information along with records.

( Meenakshi Madan Rai ) Judge 10-03-2022 ds

Unlock Advanced Research with PRISMAI

Sikkim High Court