Delhi District Court
Pratap Singh vs State Bank Of India on 27 July, 2016
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
SCJ Cum RC (NORTH-EAST), KARKARDOOMA COURTS, DELHI.
RCA No. 7/2015
Pratap Singh
S/o Sh. Prem Singh,
R/o 195/5, Gali No.2,
Krishan Gali, Maujpur,
Delhi110053
........... Appellants
Through
Sh. Shanker Dutt & Sh. G.C. Joshi,
Advocates.
VERSUS
State Bank of India
Stressed Assets Resolution Center,
23, Najafgarh Road, First Floor,
Near Jakhira, Opp. DCM Chemical,
Delhi-110015
...............Respondent
Ms. Jaya Tomer, Advocate
ORDER
1. RCA No. : 7/2015
2. Under Section : Regular Civil Appeal.
3. Date of institution : 17.09.2015
4. Date of Final Order : 27.07.2016
5. Final Order : Appeal Allowed.
BRIEF FACTS
1. Challenged herein is the judgment and decree dated 01.08.2015 passed by Sh.
Rajinder Singh, Ld. ACJ-cum-ARC-cum-CCJ(NE) whereby suit for permanent and mandatory injunction filed by appellant Pratap Singh (hereinafter referred to as "plaintiff") against respondent State Bank of India (hereinafter referred to as ''defendant'').
2. Plaintiff has approached the court claiming himself to be the owner of 50 sq. yards of property bearing No. 195/5 in Khasra No. 157 on the basis of sale deed, which was executed on 25.06.1998 by Smt. Anandi Devi (sister of plaintiff) in his favour for consideration of Rs.85,000/-.
Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 1/9)
3. The defendant claims that the said 50 sq. yards of the property is part of the 100 sq. yards of property, which was mortgaged by Sh. Sunil Kumar Sharma to the bank for availing two different loans as he was the owner of the property by virtue of the sale deed executed in his favour by his mother Smt. Chanderwati on 08.10.1998.
4. The defendant wants to recover its dues after selling the mortgaged property and plaintiff is resisting the same by filing the present suit, wherein plaintiff has sought injunction against the defendant bank, so as to restrain defendant bank from interfering in the peaceful possession of the plaintiff and also from creating any third party interest in the property.
5. After evidence was lead by the parties, the suit was dismissed on 01.08.2015 and the said judgment is now under challenge before the court by way of the present appeal.
6. In the suit three issues were framed by the Ld. Trial Court on 07.08.2008 of which two issues were decided by the Ld. Trial Court in favour of plaintiff.
7. Issue No.3 that whether the suit is bad for non-joinder of necessary party namely Chanderwati has been decided by the Ld. Trial Court in favour of plaintiff and it has been held that Smt. Chanderwati is not a necessary party to the present suit. The said finding is not under challenge and this court concurs with the finding of the Ld. Trial Court, as it is not disputed by either party that Chanderwati was the actual owner of the property from whom both the plaintiff as well as defendant bank are claiming to be deriving their interest. While the plaintiff is claiming to be the owner of the property as he purchased the same from Smt. Anandi Devi, who had purchased the same from Smt. Chanderwati in the year 1997, the defendant is claiming that the said property was purchased from Smt. Chanderwati by Sh. Sunil Kumar Sharma who had mortgaged the said property with the bank. Therefore, as far as erstwhile owner is concerned, it is not in dispute that the predecessor in interest of both the parties is Smt. Chanderwati and as such there is no dispute between the parties regarding ownership of Smt. Chanderwati, Smt. Chanderwati could have been a good witness in the present case, but as stated by the Ld. Trial Court, she is not a necessary party in the present proceedings.
8. Issue No.2 i.e. whether the suit property is mortgaged with the defendant bank has been decided in favour of the respondent and its finding has been challenged by the appellant. The finding of the Ld. Trial court as regards said issue is as under :-
Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 2/9) "The onus to prove this issue is upon the defendant. It is stated by the defendant that the suit property was mortgaged with the defendant bank by Sh. Sunil Kumar Sharm. In this regard DW 7 Sh. Ramesh Chander Sharma in his affidavit Ex. D 7 stated that the property No. 191/5, measuring 100 sq. yards, Khasra No. 157, Man Krishna Gali, Maujpur, Delhi was mortgaged with the defendant bank by Sh. Sunil Kumar Sharma, in this regard Form A is Ex. DW 6/A. On the other hand, the plaintiff claims that the suit property bears the 195/5, Khasra No. 157, Measuring 50 sq. yards. In the plaint, it is stated that initially the suit property was owned by one Sh. Hari Chand, who sold the same to Sh. Roshan Lal Sehgal on 25.04.1966. Thereafter, on 15.03.1978 Sh. Roshan Lal sold the suit property to Ms. Chanderwati (mother of Sh. Sunil Kumar Sharma). On 26.03.1997, the suit property was purchased by Ms. Anandi Devi, sister of the plaintiff. On 25.06.1998, plaintiff purchased the suit property from his sister Ms. Anandi Devi. The plaintiff has relied upon the document Ex. PW 2/1, Ex. PW 2/2, Mark X.1 and Ex. PW 1/A, whereby the property was transferred by Ms. Chanderwati in the name of Ms. Anandi Devi. Further Sale Deed by Ms. Anandi Devi in favour of the plaintiff is Ex. PW 2/3. In these documents the description of the property is mentioned as property No. 195/5, Khasra No. 157, measuring 50 sq. yards. It is observed that the defendant in the written statement mentioned that initially the peroperty was measuring 100 sq. yards and bearing No.191/5, Khasra No.157. The same was mortgaged with the defendant. It is stated that the suit property is the part of the mortgaged property.
The plaintiff states that the original owner of the suit property was Sh. Hari Chand. Thereafter, the same was transferred to Sh. Roshan Lal. These transactions took place on 25.04.1966 and 15.03.1977. However, the documents allegedly executed by Sh. Hari Chand in favour of Sh. Roshan Lal and by Sh. Roshan Lal in favour of Smt. Chanderwati have not been placed on record. Earliest documents relied upon by the plaintiff were prepared/executed in the year 1996. Thereafter, in the year 1998, Sh. Sunil Kumar Sharma mortgaged the property with the defendant bank. The plaintiff has not filed the earlier documents regarding the suit property to show that the property No.195/5, Khasra No. 157, was existing independently prior to the year 1997. It is apparent that the suit property has been carved out of the mortgaged property. One site plan Ex. DW 5/2 is on record. This site plan is pertaining to the mortgaged property i.e., property No. 195/5, Khasra No.157. In this property one portion on the North-East is shown as built up house of the plaintiff. The rest of the portions are shown, belonging to the other parties. The site plan of the suit property is Ex. PW 1/1. Therein, the details of the adjoining parties are not mentioned. Even the dimensions of the property are not mentioned. The site plan of the ground floor of the suit property corresonds to the portion of the plaintiff shwon in the site plan Ex. DW 5/2. There is a hall and two shops on the ground floor of the suit property. It is the same as shown in the site plan Ex. DW 5/2. In view of the above, it is clear that the suit property is a part of the mortgaged property. The number 195/5 has been assigned to this suit property arbitrarily and the same has been used in the documents relied upon by the plaintiff. In view of the above, the issue no.2 is decided in favour of the defendants and against the plaintiff."
Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 3/9)
9. The undersigned do not find any infirmity in the aforesaid finding of the Ld. Trial Court and besides the aforesaid reasons, there is one more reason to hold that 50 sq. yards property with respect to which the present appeal has been filed is part of 100 sq. yards property, which was mortgaged by Sh. Sunil Kumar Sharma with the respondent bank.
10. The said reason is the location of the property, as mentioned in both the registered sale deeds being relied upon by the parties. In the sale deed in favour of plaintiff dated 25.06.1998, it is shown that the said 50 sq. yards property is bounded by a 15 ft. gali on the East, 10 ft. gali in the North and property of others in the West and South. Similarly, in the sale deed in favour of Sh. Sunil Kumar Sharma of 100 sq. yards of property, it is stated that the said 100 sq. yards is bounded by road on the East, road on the North, remaining portion of the property in the West and property of Sh. Sohan Lal Sharma in the South. Thus, as per the boundaries mentioned in both the sale deeds, the property is having a road on the East and North i.e. two adjoining sides and not two opposite sides and if the two adjoining sides of two plots are same, then the only inference which can be drawn is that 50 sq. yards property which is mentioned in the sale deed of plaintiff is part of 100 sq. yards property as mentioned in the sale deed of Sh. Sunil Kumar Sharma, who had mortgaged the said property to the respondent bank.
11.Accordingly, in the opinion of the court, the finding of the Ld. Trial Court as regards issue No.2 is correct in view the reasoning given by Ld. Trial Court and further in view of the aforesaid reasoning of this court. Therefore, issue No.2, has been correctly decided by the Ld. Trial Court.
12. Last issue which has been decided in favour of the respondent and against the appellant is whether the plaintiff is entitled to decree of permanent injunction as prayed for?
12.1. The said issue has been decided in favour of the defendant bank by the Ld. Trial Court for the following reasons: -
"The onus to prove this issue is upon the plaintiff. Permanent injunction is sought by the plaintiff, seeking to restrain the defendant and persons claiming through them from interfering in his peaceful possession and ownership of the suit property or from creating third party interest in the suit property.
In the plaint, the plaintiff alleged that on various dates i.e. 05.01.2007, 07.01.2007, 08.01.2007 and 09.01.2007 staff of the defendant bank came to the suit property and threatened to get suit property attached. There is no clear cut averment in the plaint that Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 4/9) the staff of the defendant bank threatened to dispossess the plaintiff from the suit property or the defendant bank was interfering in the ownership of the plaintiff regarding the suit property. There is also no averment in the plaint that the defendant bank is trying to create third party interest in the suit property.
In the written statement, the defendant bank has stated that the suit property forms part of the larger property i.e. the mortgaged property. The Suit bearing No. 465/04 titled as "SBI Vs. M/s. Blue Port Jeans and Ors." was filed by the plaintiff bank, wherein, the said Sh. Sunil Kumar Sharam was one of the defendants. Therein, preliminary decree dated 16.04.2005 was passed by the Court of Ld. ADJ, Delhi, in favour of the defendant bank (the plaintiff therein). DW 3 produced the relevant record regarding this Suit bearing No.365/04. Finally, the judgment dated 12.09.2007 were passed, in this case. Copies of the same are Ex. DW 3/C and Ex. DW 3/D respectively. The copy of the Preliminary Decree dated 16.04.2005 is Ex. DW 3/A. Therein, the property mentioned is the same as the mortgaged property in this case. In the operative part of the Preliminary Decree it is stated that in case, the defendant (Sh. Sunil Kumar Sharma failed to pay decreetal amount, the bank (the defendant herein) will be at liberty to move the Court for realization of the decreetal amount by sale of the mortgaged property as well as by all the hypothecated goods. The final Judgment dated 12.09.2007 is Ex. DW 3/C. Therein it is specifically ordered by the Ld. Court that the decreetal amount along with interest be realized by sale of mortgaged property i.e., property No. 191/5, area measuring 100 sq. yards forming part of Khasra No.157, Maujpur, Delhi as well as by selling of hypothecated goods. In view of this, it is clear that the defendant bank has a clear charge over the suit property. At this stage, it is pertinent to observe that the plaintiff has not challenged the averments of the defendant regarding the fact that the suit property forms part of the mortgaged property. The court has no reason to belive that the suit property does not form part of the mortgaged property.
The defendant bank has got a valid decree in its favour. This court cannot exercise it's description to nullify the effect of a decree of a superior court. In case, the plaintiff is aggrieved by the said decree, he can avail of his legal remedies to challenge the said decree. In the present case, the said decree has not been challenged, as such, the relief of permanent injunction as sought by the plaintiff, cannot be granted. Accordingly, the Issue No.1 is decided in favour of the defendant bank and against the plaintiff. 1"
12.2. From the aforesaid reading of finding of Ld. Trial Court one can find out that the said issue has been decided against the plaintiff, primarily because the defendant has got a valid decree in its favour and Ld. Trial Court observed that it can not exercise its discretion to nullify the decree of superior court and that if the plaintiff is aggrieved by the said decree, he can avail of his legal remedy to 1 Issue No.1 before Ld. Trial Court.
Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 5/9) challenge the said decree. This court do not concur/agree with the said finding of Ld. Trial court for the following reasons:-
a) Firstly, because the plaintiff is not a party in the suit filed by the defendant against the borrower i.e. Sh. Sunil Kumar Sharma and others and as such any decree, if passed, in the said suit, is only binding upon the parties in the said suit and it does not bind the plaintiff who is claiming independent title to the property.
b) Secondly, because the plaintiff is not deriving his title from Sh. Sunil Kumar Sharma the borrower, who had mortgaged the property with the defendant bank and for that reason any decree passed against Sh. Sunil Kumar Sharma is not binding upon the plaintiff.
c) Thirdly, because in the present case there are two registered sale deeds with respect to the same property, except that one sale deed is of 50 sq. yards and other is of 100 sq. yards as observed earlier. The 50 sq. yards of property is part of the 100 sq. yards, which is also the observation of the Ld. Trial Court and if it is so then the sale deed, which is prior in time and also duly executed by proper person, shall have binding effect on the seller and any subsequent sale deed by the same seller of the same property would not adversely affect rights of the first buyer. In the present case, plaintiff has filed on record and proveD the registered sale deed dated 25.06.1998 Ex.
PW 2/3, which was executed by Smt. Anandi Devi in his favour for consideration of Rs.85,000/-, being a registered General Power of Attorney of Smt. Chanderwati vide registered GPA dated 26.03.1997 which is Ex. PW 2/2. It is not the case of the defendant that Smt. Chanderwati had revoked the General Power of Attorney issued in favour of Smt. Anandi Devi on 24.03.1997 and as such the sale deed executed on the basis of said GPA, (which in Para 14 on Page 3 specifically confers the said rights) binds the principal i.e. Smt. Chanderwati, who thereafter could not have transferred any right, title or interest to the subsequent purchaser with respect to the same property which is subject matter of sale deed dated 25.06.1998. As per record Smt. Chanderwati after 25.06.1998, i.e. on 08.10.1998 executed sale deed with respect to the same 50 sq. yards + additional 50 sq. yards i.e. total 100 sq. yards of property, in favour of her own son Sh. Sunil Kumar Sharma by executing a sale deed for consideration of Rs.1,00,000/-. The Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 6/9) said subsequent sale deed with respect to the same 50 sq. yards is not binding upon the plaintiff (purchaser) as the plaintiff (purchaser) is absolute owner of the property measuring 50 sq. yards by virtue of sale deed dated 25.06.1998. The property of the plaintiff could not have been sold by Smt. Chanderwati in favour of Sh. Sunil Kumar Sharma, once the sale deed was executed in favour of plaintiff and any such subsequent sale deed with respect to the same property and its mortgage thereafter to the bank, would not bind the plaintiff, as the plaintiff is not a party to the subsequent sale or to the subsequent mortgage.
• In simple words by way of illustration, if a property is sold by 'A' to 'B' on 1st January 2016, through his registered General Power of Attorney holder, then the same property can not be sold by 'A' to 'C' after 01.01.2016.
After the first sale deed, no right title or interest in the property vests in 'A', as 'B' after execution of the sale deed became the absolute owner of the property. The subsequent sale deed by 'A' in favour of 'C', does not confer any right in 'C'. In case 'C', mortgages the property to bank 'D' then the said mortgagee bank 'D', shall also have no right to sell the said property and recover the amount advanced as loan.
d) In the present case, from the peculiar facts, it seems that Smt. Chanderwati after having received entire consideration amount with respect to the 50 sq. yards property from the sister of plaintiff (Smt. Anandi Devi), in connivance with her son executed subsequent sale deed with respect to the same property in favour of her son, who mortgaged the said property with the defendant bank. The said inference can also be drawn from the fact that Smt. Chanderwati also stood as a guarantor of her son Sh. Sunil Kumar Sharma, with respect to the loan which was advanced by the defendant bank to Sh. Sunil Kumar Sharma and she is party in both the suits, filed by the defendant bank against borrower Sh. Sunil Kumar Sharma, as a guarantor of the said borrower. Therefore, it seems that the subsequent sale deed in favour of Sh. Sunil Kumar Sharma was primarily executed to defraud the defendant bank.
e) It was strongly argued by the ld. Counsel for the defendant bank that there are two decrees in favour of the defendant bank in the two suits filed by the Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 7/9) defendant bank against Sh. Sunil Kumar Sharma as well as Smt. Chanderwati for recovery of the loan amounts and as such the defendant bank has first charge on the property in order to recover its loan amount. It was also argued by ld. Counsel for defendant bank that the plaintiff is in connivance with Sh. Sunil Kumar Sharma and Smt. Chanderwati in order to defraud the bank.
However, the defendant bank has failed to prove that the sale deed executed by Smt. Anandi Devi in favour of the plaintiff has been fraudulently executed to defraud the defendant bank. As far as decrees in the two suits is concerned, as Smt. Chanderwati has already received the consideration amount after selling the suit property to Smt. Anandi Devi (sister of plaintiff), hence, both Smt. Chanderwati and Sh. Sunil Kumar Sharma are least interested in contesting the cases filed against them by defendant bank, as it would be in their favour, if the property of the plaintiff is sold for recovery of the loan amount, as that would bring down their personal liability to pay any balance amount after adjusting the sale consideration of the property mortgaged. Therefore, two decrees in favour of the defendant bank, cannot be enforced against the plaintiff, who had become the absolute owner of the property measuring 50 sq. yards, before the property was mortgaged to the defendant bank.
f) In the opinion of this court, the findings of the Ld. Trial Court as regards issue No.1, is not correct and in the opinion of the court as the sale deed was duly executed in favour of the plaintiff on 25.06.1998, hence, at the time of the mortgage of the property by Sh. Sunil Kumar Sharma to the defendant bank, the plaintiff was the absolute owner of the property and the said mortgage by Sh. Sunil Kumar Sharma does not bind the plaintiff in any manner. The defendant bank alleged in Para 5 on Page 3 of WS that "the suit has been filed by plaintiff in connivance with Sh. Sunil Kumar Sharma and Smt. Chanderwati in order to create hurdle in the recovering the legitimate dues of the defendant bank", but neither DW-4 Rajbir Singh (Branch Manager), nor DW-5 S.C. Rana (Deputy Manager) were able to prove through their testimony that the plaintiff dishonestly purchased the property in order to defraud the bank. The defendant bank has failed to prove that the Sale Deed dated 02.07.1998 was prepared by the plaintiff in Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 8/9) connivance with Sh. Sunil Kumar Sharma and Smt. Chanderewati and unless such connivance or dishonest intentions is proved, the defendant bank cannot avoid the consequences of the sale deed and the sale deed is binding upon the defendant bank, who is claiming rights in the property as mortgagee on the basis of subsequent sale deed dated 08.10.1998. In view of Section 48 of Transfer of Property Act, the rights of the defendant bank as mortgagee on the basis of sale deed dated 08.10.1998, shall be subject to the rights previously created by Sale Deed dated 02.07.1998 in favour of plaintiff, and as the rights created by the two sale deeds cannot co exist together, hence, the right created by sale deed which is prior in time (i.e. 02.07.1998) will not be adversely affected by subsequent sale deed. Accordingly, issue No.1 is decided in favour of the plaintiff and against the defendant and the finding of Ld. Trial Court to that extent is set aside.
13. Relief 13.1. In view of the aforesaid findings, the appeal is allowed and the defendant bank is restrained from dispossessing the plaintiff from the suit property built on land area 50 sq. yards, bearing No.195/5, out of Khasra No.157, Krishna Gali No.2, Maujpur, Shahdara, Delhi-53 and from creating any third party interest therein.
13.2. However, it is made clear that this order is with respect to the 50 sq. yards of property shown to be in possession of plaintiff as per site plan Ex. DW 5/2 and not with respect to the remaining 50 sq. yards of property out of the 100 sq. yards, which was sold by Smt. Chanderwati to Sh. Sunil Kumar Sharma. Defendant Bank may recover the loan amount by selling the remaining 50 sq. yards of property, as per law and procedure.
14. Decree sheet be drawn accordingly.
15. One copy of this order be sent to the Ld. Trial Court.
16. The appeal file be consigned to Record Room after due compliance.
Announced in the open court Dated: 27.07.2016 S.P.S. LALER SCJ-Cum-RC Karkardooma Courts Delhi/27.07.16 Order on Appeal u/s 96 Code of Civil Procedure, 1908 against the judgment and decree dated 01.08.2016 Appeal filed on 17.09.2015 Pratap Singh Vs. State Bank of India (RCA No. 7/15) (Page No. 9/9)