Madras High Court
The Chairman vs Chitra on 3 January, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03/01/2014 CORAM THE HON'BLE MR.JUSTICE R.SUBBIAH Application Nos.1350 & 1351 of 2013 in Civil Suit No.297 of 2012 Application No.1350 of 2013 --------------------------------- THE AUTHORISED OFFICER AND CHIEF MANAGER INDIAN BANK NO.91, 1ST MAIN ROAD, GANDHI NAGAR, ADYAR, CHENNAI 600 020. THE CHAIRMAN INDIAN BANK, HEAD OFFICE, ROYAPETTAH, CHENNAI 600 014 vs CHITRA W/O. VIJAYAMANI V.KAYATHRI V.SANJANA 2 AND 3 REP BY MOTHER AND NATURAL GUARDIAN ALL AT NO.11A NELLUKARA ST., KANCHEEPURAM, KANCHEEPURAM DT. G. VIJAYAMANI 11A NELLUKARA ST KANCHEEPURAM KANCHEEPURAM DT Application No.1351 of 2013 --------------------------------- THE AUTHORISED OFFICER AND CHIEF MANAGER INDIAN BANK NO.91, 1ST MAIN ROAD, GANDHI NAGAR, ADYAR, CHENNAI - 600 020. THE CHAIRMAN INDIAN BANK, HEAD OFFICE, ROYAPETTAH, CHENNAI - 600 014. vs CHITRA W/O. VIJAYAMANI V.KAYATHRI V.SANJANA 2 AND 3 REP BY MOTHER AND NATURAL GUARDIAN ALL AT NO.11A NELLUKARA ST., KANCHEEPURAM, KANCHEEPURAM DT. G. VIJAYAMANI 11A NELLUKARA ST KANCHEEPURAM KANCHEEPURAM DT ORDER
Application Nos.1350 & 1351 of 2013 in Civil Suit No.297 of 2012 R.SUBBIAH, J.
Application No.1350 of 2013 has been filed to vacate the interim injunction order dated 26.04.2012 granted by this Court in O.A.No.377 in C.S.No.297 of 2012.
2.Application No.1351 of 2013 has been filed to reject the plaint and consequently, dismiss the above suit in C.S.No.297 of 2012.
3.The applicants in these two applications are the defendants 2 & 3 in the suit. The respondents 1 to 3 herein are the plaintiffs and the 4th respondent herein is the 1st defendant in the suit.
4.The 1st respondent herein/1st plaintiff is the wife of 4th respondent herein/1st defendant and the respondents 2 & 3 herein/plaintiffs 2 & 3 are their children.
5.For the sake of convenience, the parties are referred to as per the rankings in the suit.
6.The case of the plaintiffs is that the suit schedule property was purchased by the father-in-law of the 1st plaintiff viz., Govindasamy Naicker in the year 1957, out of his own funds. The said Govindasamy Naicker executed a Will bequeathing the suit schedule property to his minor grand-daughters viz., plaintiffs 2 & 3, out of his natural love and affection. The said Will was registered as Document No.25/1990 dated 18.04.1990. The said Govindasamy Naicker died on 30.05.2002. The 1st defendant, father of the minor daughters, failed to conduct as a normal trustee of the property of the children. To the shock and surprise of the plaintiffs, the plaintiffs came to know that a settlement deed, dated 24.05.2002, registered as Document No.1598/2002, in respect of the same property which is the subject matter of the Will, was executed in favour of the 1st defendant by his father Govindasamy Naicker by affixing his thumb impression prior to his death, when he was affected by heart-attack deteriorating his normal mental faculty.
7.It is further case of the plaintiffs that the 1st defendant was carrying on a business firm with his associates namely one Neduchezian and T.L.Chitra. The business dealings of the 1st defendant were not disclosed to the 1st plaintiff. It is further case of the plaintiffs that it is totally improper and illegal on the part of the 1st defendant to ignore the well-intentioned Will of his father, which was validly executed, and to create a Settlement Deed settling the same property in his own favour defeating the rights of his own children, in whose favour the property was bequeathed under the Registered Will dated 18.04.1990.
8.It is further case of the plaintiffs that the 1st defendant availed loan from the defendants 2 & 3 - Bank by depositing the alleged settlement deed as security for repayment. Since the 1st defendant defaulted in repaying the loan amount, the defendants 2 & 3 Bank (appellants herein), who are having the settlement deed as security for repayment of the loan amount, to which the plaintiffs are not parties, enforced the security by bringing the property for sale in auction.
9.According to the plaintiffs, the settlement deed purported to be executed by late Govindasamy Naicker in favour of the 1st defendant G.Vijayamani, registered as Document No.1598/2002, is neither valid in law nor binding on the plaintiffs, because it is not genuine document being brought under suspicious circumstances and obtained by fraud and misrepresentation. Hence, the present suit has been filed by the 1st plaintiff along with her two minor daughters (plaintiffs 2 & 3) as against her husband as well as the Banks, showing them as Defendants 1, 2 & 3, for the following reliefs:-
(a)declaring the Settlement Deed Document No.1598/2002 dated 24.05.2002 as void and inoperative in law and not binding on the plaintiffs.
(b)granting a permanent injunction restraining the second and third defendants from enforcing the security of the schedule mentioned property in any manner including sale in public auction or any other mode.
(c)Directing the defendants to pay the costs for the suit.
10.Along with the suit, the plaintiffs have also filed an application viz., O.A.No.377 of 2012 seeking for interim injunction restraining the defendants 2 & 3 / Bank or their agents from bringing the suit schedule property for sale in auction or otherwise encumbering the property in any manner on the basis of the security created by the 1st defendant. This Court, by order dated 26.04.2012, has granted interim injunction with regard to confirmation of the sale only. The relevant portion of the said order is as follows:-
"After going through the records, I am not inclined to grant an order of interim injunction restraining the second and third defendants from brining the suit schedule property to sell in auction. However, there shall be an order of interim injunction with regard to confirmation of the sale only, until further orders."
11.After appearance, the defendants 2 & 3 have filed the present applications viz., A.Nos.1350 & 1351 of 2013, one for vacating the interim injunction and another for rejecting the plaint and consequently, to dismiss the suit.
12.In these two applications filed by the applicants herein / defendants 2 & 3 Bank, it has been stated that the suit property was purchased out of personal funds of the said Govindasamy Naicker, father of the 1st defendant. The said Govindasamy Naicker executed a valid settlement deed dated 24.05.2002 registered as Doc.No.1598/2002 on the file of Joint SRO-2, Kancheepuram. The 1st defendant availed of private finance from M/s.Mansi Finance Ltd by mortgaging the suit schedule property. The said mortgage dated 22.7.2004 has been registered as Document No.2244/2004 on the file of the Joint SRO-2, Kancheepuram and the said mortgage was subsequently discharged and the said discharge dated 13.12.2004 has also been registered on the file of the Joint SRO-2, Kancheepuram, as Document No.3804 of 2004. Thereafter, the 1st defendant along with one D.K.Nedunchezhian and others had formed a partnership concern and availed further loan facilities from some banks, including the defendants 2 & 3-bank (applicants herein). The 1st defendant mortgaged the suit schedule property in favour of the defendants 2 & 3-Bank (applicants herein) for securing the amounts advanced to his partnership firm by depositing the Settlement deed and the said mortgage deed dated 30.06.2008 in favour of the defendants 2 & 3-bank was recorded by memorandum and the same has been registered on 30.06.2008 as Document No.1765/2008 on the file of the Joint SRO-2, Kancheepuram. The said loan was originally availed at Indian bank, Anna Salai Branch and thereafter, the same was transferred to Adayar Branch at the request of the 1st defendant and his partnership firm M/s.KKAN Exporters. The 1st defendant and his partners committed default in repaying the loan amount, which necessitated the Bank to take further action for recovery of dues. In continuation of the recovery measures initiated by the defendants-Bank under the provisions of the Securitisation and Recnstruction of Financial Assets and Enforcement of Security Interest Act (in short 'SARFAESI Act'), the due notices were issued and further actions were initiated by the defendants-Bank. The suit schedule property was caused for sale as the borrowers continued to be in default and without repaying the dues. When the suit schedule property was caused for sale by the defendants 2 & 3-Bank, the plaintiffs had filed S.A.SR.No.2903 of 2012 before the Debt Recovery Tribuna-II, Chennai, challenging the sale under SARFEASI Act, claiming a right based on the alleged Will executed by Govindasamy Naikcer during his life time in favour of his grand-daughters viz., Plaintiffs 2 & 3. The above said S.A.SR.No.2903 of 2012 was heard at length at the time of admission itself and the same was dismissed by way of a detailed order by the DRT-II, Chennai. Finding the adverse situation before the DRT, the plaintiffs have filed the present suit and obtained an ex-parte interim order by misleading and suppressing all the above facts. The claim of the plaintiffs on the suit schedule property is fallacious claim and cannot be maintained. The present suit has been filed with suppression of facts. Thus, the applicants herein / defendants 2 & 3 Bank pray for vacating the interim order dated 26.04.2012 and also to reject the plaint and consequently, to dismiss the suit.
13.Heard the submissions made on either side and perused the materials available on record.
14.With regard to the rejection of the plaint, the submission made by the learned counsel for the applicants/defendants 2 & 3-Bank is on two folds:-
i)The suit property is situated in Kancheepuram, outside the jurisdiction of this Court. The plaintiff sought for the relief of declaration declaring the Settlement Deed, Document No.1598/2002 dated 24.05.2002, as void and inoperative in law and not binding on the plaintiffs and permanent injunction restraining the defendants 2 & 3 from enforcing the security of the schedule mentioned property in any manner including sale in public auction or any other mode. Thus, the plaintiffs seek to protect the possession of the property. Hence, this is a suit for land. Since the landed property situated outside the jurisdiction of this Court, the suit is not maintainable before this Court. In this regard, the learned counsel for the defendants 2 & 3/ applicants herein by relying upon the judgment reported in 2005 (5) CTC 483 [Thamiraparani Invvestments Pvt. Ltd., Vs. Meta Films Pvt. Ltd] submitted that considering Clause 12 of Letters Patent of this Court, the Hon'ble Supreme Court has held that if a suit is for determination of title of land, or suit for possession of land or other suits in which the reliefs claimed, if granted, would directly affect the title or possession of land, the suit could be filed only in the Court in which jurisdiction the land is situate. Since the plaintiffs are seeking for protection of the land, the present suit ought to have been filed only before Court at Kancheepuram.
ii)The second fold of submission made by the learned counsel for the defendants 2 & 3 Bank (applicants herein) is that the applicants herein had already initiated proceedings under SARFAESI Act claiming a right over the suit property. Under Section 34 of SARFAESI Act, there is a bar for Civil Court to entertain any suit in respect of the proceedings initiated by the Bank under SARFAESI Act. As per Section 34 of the SARFAESI Act, no Civil Court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or an Appellate Tribunal is empowered by or under the 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. Therefore, according to the learned counsel for the applicants herein/defendants 2 & 3-Bank, since there is a bar under Section 34 of SARFAESI Act, the present suit is not maintainable. Hence, the plaint is liable to be rejected. In this regard, the learned counsel for the applicants herein relied upon the judgments reported in IV (2009) BC 366 [ Tara Devi Kelanka & Anr Vs. State Bank of India & Ors] and II(2009) BC 646 [Yuth Development Co-op Bank Ltd., Kolhapur Vs. Balasaheb Dinkarrao Salokhe & Ors].
15.With regard to vacating the interim order dated 26.04.2012 passed in O.A.No.377 of 2012, it is the submission of the learned counsel for the applicants/defendants 2 & 3 Bank, that the suit property was an absolute property of late Govindasamy Naikcer. Though the Will is said to have been executed by the said Govindasamy Naikcer in favour of his grandchildren ie., plaintiffs 2 & 3, in the year 1990, subsequently during his life time, he executed a Settlement Deed in favour of his son G.Vijayamani, 1st defendant, on 24.05.2002 which was registered as Document No.1598/2002. Hence, in view of the said Settlement Deed, the 1st defendant has become the absolute owner of the suit property. The 1st defendant along with one Neduchezian and others formed a business firm and availed loan from the defendants-Bank (applicants herein) by mortgaging the said settlement deed, dated 24.05.2002. Initially the plaintiffs had filed S.A.SR.No.2903 of 2012 of 2012 before DRT-II, Chennai challenging the sale under SARFAESI Act. But, the said S.A.SR.No.2903 of 2012 was dismissed by the DRT. Thereafter, suppressing the dismissal of the said S.A.SR.No.2903 of 2012 by the DRT, the plaintiffs have filed the present suit by playing fraud on the Court by making misrepresentation. The plaintiffs have not approached this Court with clean hands. Hence, the interim injunction granted by this Court is liable to be vacated.
16.Per contra, it is the submission of the learned counsel for the respondents 1 to 3/plaintiffs that the suit has been filed not only for declaration to declare the Settlement Deed dated 24.05.2002 as void and inoperative in law, the suit has also been filed for permanent injunction restraining the defendants 2 & 3 from enforcing the security of the schedule mentioned property in any manner including the sale in public auction or any other mode. Hence, the plaint cannot be rejected when the relief of permanent injunction is sought for in the plaint as against the defendants 2 & 3, who are having their Office within the jurisdiction of this Court. Further, the learned counsel for the plaintiffs relied upon the Judgment reported in 2004(4) CTC 261 [Arasa Kumar and another Vs. Nallammal and others ) and 2009(1) CTC 798 [J.Jayalalithaa Vs. Nakheerangopal] and submitted that the bar created under Section 34 of SARFAESI Act is not absolute and it is subject to certain restrictions. Further, If the disputes raised by the parties cannot be adjudicated by the Tribunal or Authority created under the Act, the parties can approach the Civil Court. Therefore, according the learned counsel for the plaintiffs, Section 34 of the said Act can not act as a bar to file the present suit.
17.Further, it is the submission of the learned counsel for the plaintiffs that in the affidavit filed support of these applications, the applicants/defendants 2 & 3 have not made averments with regard to the jurisdiction or the bar under Section 34 of SARFAESI Act to file the suit, for rejection of the plaint. Under such circumstances, in the absence of any necessary averment in the affidavit filed in support of the applications to reject the plaint, the submission made by the learned counsel for the applicants herein/defendants 2 & 3-Bank in this regard cannot be accepted.
18.It is further submission of the learned counsel for the plaintiffs that the suit property was devolved upon the plaintiffs 2 & 3 by way of the Will dated 18.04.1990 executed by their grand-father Govindasamy Naicker. But, in the year 2002, just three days prior to the date of death of said Govindasamy Naicker, his son-first defendant herein obtained the thumb impression of his father Govindasamy Naicker in the document and thus, he obtained the settlement deed in his favour. The said settlement deed dated 24.05.2002 was brought under suspicious circumstances. Therefore, till the disposal of the suit the property has to be protected. If the suit property is sold in auction, the plaintiffs would be put to hardship.
19.But, on a careful perusal of the entire affidavit filed in support of these applications, I find that, as contended by the learned counsel for the plaintiffs, absolutely no averment was made with regard to the rejection of the plaint on the ground of jurisdiction or on the ground of bar created under Section 34 of SARFAESI Act. In the absence of any averment in the affidavit, I am of the considered opinion that the submission made by the learned counsel for the applicants/defendants 2 & 3-Bank for the rejection of the plaint cannot be considered.
20.But, so far as the application filed by the applicants for vacating the interim injunction is concerned, on a perusal of the averments in the affidavit filed in support of the application, I find that the plaintiffs are claiming right over the suit property based on the Will said to have been executed by one Govindasamy Naicker in favour of the plaintiffs 2 & 3. The said Will was registered as Document No.25 of 1990, dated 18.04.1990. But, subsequently, during his life time itself, the said Govindasamy Naicker executed a Settlement Deed in favour of his son 1st defendant Vijayamani, which was registered as Document No.1598 of 2002, dated 24.05.2002. The right under the Will accrues only after the life time of the executor, if any right subsists. In the instant case, the said Govindasamy Naicker, who is the owner of the property, during his life time itself, has settled the property in favour of his son Vijayamani (1st defendant), subsequent to the execution of the Will in the year 1990. Therefore, now no significance could be attached to the said Will. Though the learned counsel for the plaintiffs submits that the settlement deed dated 24.05.2002 was brought under suspicious circumstances, he has not produced any tangible evidene in support of the said contention. However, I find that the said settlement deed dated 24.05.2002 was mortgaged as security for the repayment of loan amount by the 1st defendant himself as a partner of partnership-firm. Since the firm defaulted in repaying the loan amount, the applicants herein-bank initiated the proceedings under SARFAESI Act. Thereafter, the plaintiffs had also filed S.A.SR.No.2903 of 2012 before the DRT-II, Chennai, challenging the sale under SARFAESI Act claiming right based on the Will executed by the said Govindasamy Naicker in the year 1990. But, the said S.A.SR.No.2903 of 2012 was dismissed by the DRT-II, Chennai, by way of a detailed order. But, suppressing the proceedings in S.A.SR.No.2903 of 2012 before the DRT-II, Chennai, once again with the same set of allegations, the present suit has been filed by the plaintiffs before this Court by making misrepresentation. Therefore, I am of the opinion that the plaintiffs have not approached this Court with clean hands. Hence, they are not entitled for continuation of the interim order granted by this Court.
21.For the foregoing reasons, the Application No.1350 of 2013 is allowed and the interim order dated 26.04.2012 passed in O.A.No.377 of 2012 is vacated. Application No.1351 of 2013 is dismissed.
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