Patna High Court - Orders
Hira Nand Lal vs Santosh Kumar Badhwani & Ors. on 17 January, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.111 of 2010
Hira Nand Lall, Son of Late Hasamal, Resident of Mohalla - Durga
Asthan, P.O. and P.S. - Katihar, District - Katihar.
....... Plaintiff - Appellant
Versus
1. Santosh Kumar Badhwani , Son of Late Hasamal.
2. Mohan Kumar Badhwani, Son of Late Hasamal.
3. Suresh Kumar Badhwani, Son of Late Hasamal.
All 1 to 3 residents of Mohalla - Durga Asthan, P.O. and P.S. - Katihar,
District - Katihar.
4. The Punjab National Bank through the Branch Manager, M.G. Road
Branch, Katihar, P.O. and P.S. - Katihar, District - Katihar.
5. Kala Devi, Wife of Sri Ramesh Chandra Meghani, Resident of
Mohalla - Goshala, Opp. P.N.T. Colony, Muzaffarpur, P.O. -
Muzaffarpur, P.S. - Muzaffarpur, District - Muzaffarpur.
6. Kamla Devi, Wife of Sri Hans Raj Meghani, Resident of Mohalla -
Indra Nagar, Lucknow, House No. 631/216, Sector -8, P.O. - Indra
Nagar, P.S. - Indra Nagar, Lucknow, District - Lucknow.
.......... Defendants -Respondents
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16 17.01.2012I have heard Sri S.K. Das, learned counsel for the appellant and Sri Mahesh Narayan Parbat, learned counsel for Respondent No. 4 / Punjab National Bank. None appeared on behalf of defendant /respondent no. 1 whereas respondent no. 1 had already entered appearance through his counsel. Other respondents despite valid service of notice have preferred not to appear in this case.
The present appeal under order XLIII rule 1 (r) of the Code of Civil Procedure has been preferred against an order dated 21.01.2010 passed in Title (Partition) Suit No. 39 of 2008 passed by learned Sub Judge I, Katihar. By the said order the learned court below has been pleased to reject the petition filed on behalf of the plaintiff / appellant under order 39 rule 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of injunction.
The plaintiff / appellant has filed Title (Partition ) Suit No. 39 of 2008 in respect of land pertaining to M.S. Plot No. 2 128Ka, Kha under M.S. Khata No. 205 measuring 06 acres 20 points and also M.S. Plot No. 128 Ka/P under M.S. Khata No. 205 measuring 80 points, situated within Mauza Sairganj, Tauzi No. 1239, Thana No. 103 and also Plot No. 126/P under Khata No. 146 measuring 0.85 Airs, Ward No. 19 under Katihar Municipality. Over the said land a double storied building is standing which includes latrine, bath room, drains, garage, court yard, compound wall etc. The plaintiff / appellant has filed the partition suit on the plea that the suit properties are ancestral properties. Since the defendant no. 1 was intending to transfer the suit property the plaintiff/ appellant before the court below had earlier filed a petition for injunction for restraining defendant / respondent no. 1 from transferring the suit property.
Initially in Title (Partition) Suit No. 39 of 2008, three persons were impleaded as defendants including defendant / respondent no. 1. It is further evident that to the injunction petition the defendant no. 1 to 3 though had filed objection but no serious objection was raised, and accordingly, the learned court below vide the order dated 20.05.2008 allowed the injunction petition and restrained the defendant no. 1 to 3 from disposing / transferring the suit property. Subsequently, as pleaded on behalf of the plaintiff / appellant the appellant came to know that defendant / respondent no. 1 had mortgaged joint ancestral suit properties of the plaintiff and other co-sharer without any partition of the same in favour of 3 Punjab National Bank, Katihar (hereinafter referred to as the 'Bank') and obtained O.D. loan facility and housing loan facility to the tune of Rs. 20 Lakhs. The defendant no. 1 had defaulted and thereafter the Bank issued sale notice dated 06.07.2007 in the news paper in respect of entire suit properties. Against the said notice the defendant / respondent no. 1 preferred an appeal under Section 17 of the Securitization And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act') before the Debts Recovery Tribunal, Bihar, Patna (hereinafter referred to as the 'Tribunal') vide S.A. No. 15 of 2007. The plaintiff / appellant intervened in S.A. No. 15 of 2007 before the Tribunal and filed intervention petition for being impleaded as party on the plea that he was having share in the mortgaged properties and he also filed suit for partition of his legal share vide Title (Partition ) Suit No. 39 of 2008.
It has further been pleaded that the learned Tribunal vide its order dated 31.07.2009 dismissed the intervention petition of the plaintiff / appellant and also dismissed the appeal i.e. S.A. No. 15 of 2007 which was filed by defendant / respondent no. 1 on the plea that the mortgaged properties were joint properties.
The plaintiff in Title (Partition) Suit No. 39 of 2008 had prayed for injuncting the Punjab National Bank / respondent no. 4 (secured creditor) from proceeding with the notice published by the Bank. The injunction petition filed by the plaintiff / appellant was dismissed vide the impugned order on 21.01.2010. 4
Sri S.K. Das, learned counsel for the appellant has argued that the suit land was purchased from the joint proceed by the father of plaintiff / appellant in the name of the defendant / respondent no. 1 who is full brother of the plaintiff / appellant. The said purchase was made in the year 1974. According to learned counsel for the appellant at the time of said purchase the defendant /respondent no. 1 was a minor and in the year 1975 father of the appellant got the map for construction of building sanctioned from the Municipality and subsequently in the year 1997 by family arrangement partition had already taken place and thereafter the plaintiff /appellant had let out portion of the building which had fallen in his share with the Income Tax Department. The father of the plaintiff / appellant died in the year 1998. Thereafter, the plaintiff /appellant filed a Title (Partition ) Suit vide 39 of 2008 and since the defendant no. 1 was intending to transfer / dispose of the suit property he filed an injunction petition which was allowed by the court below on 20.05.2008 and defendant no. 1 to 3 were restrained from transferring the suit property. Subsequently, Punjab National Bank as well as two sisters of the plaintiff / appellant were impleaded as defendants. Punjab National bank was impleaded as defendant no. 4 in the suit. It has been argued that the defendant no. 1 had obtained total amount of loan of Rs. 20 Lakhs from the Bank i.e. Respondent No. 4, after mortgaging the suit property and on default the Bank had initiated steps under the SARFAESI Act. It has been admitted by learned counsel for the appellant that against the 5 notice issued under Section 13 of the SARFAESI Act the defendant no. 1 / respondent no. 1 who had mortgaged the suit property had filed an appeal under Section 17 of the SARFAESI Act in which the plaintiff / appellant had filed a petition for intervention for being impleaded as party in the appeal on the ground that the properties which were noticed for sale was in joint possession. However, intervention application as well as appeal was dismissed by the Tribunal vide its order dated 31.07.2009. It has further been admitted by learned counsel for the appellant that respondent no. 4 / Punjab National Bank in the year 2009 had come out with a publication in Hindi news paper namely Hindustan published on 12th September, 2009 whereby Bank had invited tender for auction of different properties including the suit property and as such the plaintiff approached this court by invoking its writ jurisdiction vide CWJC No. 12776 of 2009. On 08.10.2009 after some argument the writ petition was withdrawn with liberty to assail the sale notice dated 07.09.2009 in the Civil Court in Title Suit No. 39 of 2008. The writ petition was disposed of granting liberty to file petition with observation for disposing of the application for assailing the sale notice expeditiously after hearing the Bank. Finally vide the impugned order the learned court below has rejected the injunction petition filed by the plaintiff/ appellant against the notice for auction of the suit property.
It was submitted by learned counsel for the appellant that if without deciding the issue of partition the notice in question 6 is not set aside, the appellant shall suffer irreparable loss, and as such, it is necessary to restrain the respondent / Bank from proceeding with the sale process. Learned counsel for the appellant has also relied on a single bench judgment of this court reported in 2010 (2) PLJR 422 (Gopal Prasad Dokania vs The Punjab National Bank). It was submitted that in almost similar circumstances this court had restrained the Punjab National Bank from proceeding under Section 13 of the SARFAESI Act for certain period, and as such, similar order may be passed in the present case.
Sri Mahesh Narayan Parbat, learned counsel appearing on behalf of respondent no. 4 /Bank has forcefully opposed the prayer of the plaintiff / appellant. Sri Parbat has argued that in the garb of making a prayer for grant of injunction the plaintiff / appellant is indirectly trying to circumvent the provisions contained in SARFAESI Act. It was argued that in view of Section 34 of the SARFAESI Act, jurisdiction of Civil Court has been ousted in such cases. Learned counsel for the Bank submits that the defendant / respondent no. 1 who had taken loan from the Bank had mortgaged the suit property and the suit property was recorded in the name of defendant / respondent no. 1. Total loan amount was Rs. 20 Lakhs and since he turned defaulter, the Bank had got no option but to proceed under the provisions of SARFAESI Act. The Bank being secured creditor had initially issued notice under Section 13 (2) of the SARFAESI Act requesting for discharging his liabilities. Since the borrower failed to discharge his liabilities or responding to the 7 notice within time, the Bank proceeded under the provisions of Section 13 (4) of the SARFAESI Act which was assailed by the borrower/defendant/respondent no. 1 in an appeal filed under Section 17 of the SARFAESI Act. The plaintiff / appellant had also participated in the appeal which was preferred by defendant / respondent no. 1. The plaintiff /appellant claiming to be co-sharer of the suit property had filed intervention petition for being impleaded as party in appeal i.e. S.A. No. 15 of 2007 which was filed by the defendant / respondent no. 1. It was submitted that in the SARFAESI Act itself there was a provision for appeal before the Appellate Tribunal but with a view to circumvent the statutory provision as contained in SARFAESI Act the plaintiff / appellant in connivance with the borrower i.e. defendant / respondent no. 1 has got filed title partition suit in which initially in a well designed manner the plaintiff got an injunction against his own brothers i.e. defendant no. 1 to 3 which includes borrower and injunction order in his favour, and subsequently, after issuance of paper publication the plaintiff / appellant filed injunction petition for restraining the Bank from proceeding with the auction sale of the suit property.
In sum and substance it has been argued that the plaintiff / appellant had got no case for getting injunction order in his favour.
Besides hearing learned counsel for the parties I have also perused the materials available on record.
After going through the record the court is satisfied that 8 all steps by the plaintiff/ appellant was taken only after issuance of notice under Section 13 of the SARFAESI Act. Meaning thereby that with a view to circumvent the proceeding under the SARFAESI Act the plaintiff/ appellant had initiated partition suit vide Title (Partition) Suit No. 39 of 2008.
At the time of hearing learned counsel for respondent / Bank had produced a photo copy of the order /judgment dated 31.07.2009 passed by the Tribunal in S.A. No. 15 of 2007 which has been kept on record. Learned counsel for the appellant had not disputed the fact that the said judgment was passed in which the plaintiff / appellant had filed an intervention petition. The said appeal was filed under Section 17 of the SARFAESI Act. Once proceeding under the provisions of SARFAESI Act had already been initiated there was a restriction for exercise of jurisdiction of a Civil Court. Section 34 of the SARFAESI Act would be relevant to be quoted below:-
"34. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of 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, 1993 (51 of 1993)."
In view of aforesaid provisions it is evident that there is specific bar in granting injunction by any civil court in respect of any action taken in pursuance of the power conferred by the SARFAESI Act. By filing injunction petition dated 07th October, 9 2009 the appellant had made a prayer for restraining the Bank from doing auction sale of the suit property pursuant to notice published in daily news paper namely Hindustan on 12th September, 2009. The Court is of the opinion that it was not permissible.
So far as judgment referred by learned counsel for the appellant i.e. Gopal Prasad Dokania Case (Supra) is concerned, the court is of the opinion that plaintiff /appellant may not get any benefit from the said judgment in view of the basic fact that in the present case the plaintiff / appellant had participated in the appeal filed under Section 17 of the SARFAESI Act and after not getting any relief from the Tribunal he had filed the present Title (Partition ) Suit in 2008.
After going through the impugned order the court is satisfied that the learned court below has legally and rightly dismissed the injunction petition filed by the plaintiff /appellant which requires no interference. Accordingly, the appeal stands dismissed without any cost.
( Rakesh Kumar, J.) Praful