Allahabad High Court
Mohd. Suhail And Another vs Rajiv Chutani And Another on 22 October, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- MATTERS UNDER ARTICLE 227 No. - 2717 of 2020 Petitioner :- Mohd. Suhail And Another Respondent :- Rajiv Chutani And Another Counsel for Petitioner :- Vinayak Mithal Counsel for Respondent :- R.V. Pandey,Vidya Sagar Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Vinayak Mithal, learned counsel for the defendants-petitioners; Shri Vidya Sagar, learned counsel for the plaintiff-respondent no.1 as well as Shri R.V. Pandey, learned counsel for the defendant-respondent no..
Present matter is preferred under Article 227 of Constitution of India seeking following principal reliefs:-
"I. Issue an order or direction of appropriate nature quashing the entire proceedings of Original Suit No.857/2014 (Rajiv Chutani v. Bank of India);
II. Issue an order or direction of appropriate nature quashing the impugned order dated 30.07.2014 pronounced by the Court of Civil Judge (Senior Division), District Meerut in Original Suit No.857/2014 (Rajiv Chutani v. Bank of India);
Alternatively;
III. Issue an order or direction of appropriate nature directing the court below to forthwith and expeditiously decide the application filed under Order VII Rule 11 for rejection of plaint in view of Section 34 of SARFAESI Act, 2002 before proceeding any further in the matter;
The brief matrix of the case is that Shop nos.418 and 419 (new number 154), Khair Nagar Bazar, District Meerut were purchased by Shri Ram Gopal Chutani and his son Sanjeev Chutani through registered sale deed dated 20.03.2006 from its erstwhile owner Abdul Mashkoor Khan. Both the shops were demolished in the year 2007-08 and new building was constructed having three floors with a hall on each floor. The aforesaid property was mortgaged by Sri Sanjeev Chutani to the respondent no.2 for availing a cash credit loan of Rs.45,00,000/- in the name of his firm M/s JSD Pharmaceuticals. Sanjeev Chutani had defaulted in repayment of loan amount. Consequently, proceedings under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in brevity 'SARFAESI Act 2002') were initiated by the bank in the year 2014. The plaintiff respondent no.1 has instituted Original Suit no.857/2019 (Rajiv Chutani vs. Bank of India) for permanent injunction claiming himself to be benami owner having possession of the suit property, wherein, an ex-parte interim injunction order was passed by the Civil Court in favour of plaintiff/respondent no.1 on 30.7.2014. The respondent bank had moved an application under Section VII Rule 11 CPC for rejection of the plaint on 24.04.2019. In the said suit proceeding, the petitioners have also moved an impleadment application before the Civil Court on 26.08.2019.
Record in question also reflects that meanwhile, the property was auctioned by the bank on 26.02.2019, wherein, the petitioners were declared as the successful bidders with a bid amount of Rs.92,80,000/- and were required to deposit 255 bid amount till 27.2.2019. The amount of Rs.15,60,000/- was duly deposited by the petitioners on 27.2.2019. The plaintiff-respondent no.1 had filed a S.A. no.83/2019 before the Debt Recovery Tribunal, Lucknow claiming himself to be the tenant as well as the guarantor of the property. The respondent bank had issued a certificate of sale in favour of the petitioners on 29.03.2019 and handing over the symbolic possession of the property in dispute. The plaintiff-respondent no.1 had preferred an Appeal Diary no.101/2019 on 08.04.2019 before the Debt Recovery Appellate Tribunal, Allahabad challenging the entire auction proceeding, wherein, the Tribunal had granted ex-parte interim order in favour of the plaintiff-respondent no.1 on 03.06.2019. Thereafter the petitioners were impleaded in the said appeal and they have preferred objection as well as stay vacation application before the Appellate Tribunal.
Earlier the applicants have also approached the Court by preferring Matters Under Article 227 No7807 of 2019 (Mohd. Suhail and another vs. Rajiv Chutani and another) for quashing the entire proceedings of Original Suit No.857/2014 (Rajiv Chutani v. Bank of India) as well as the order dated 30.7.2014 passed by the Civil Judge (Senior Division), District Meerut in Original Suit No.857/2014 and alternatively, it was also prayed for issuing direction to the court below to decide the application filed under Order VII Rule 11 CPC for rejection of plaint in view of Section 34 of SARFAESI Act, 2002 before proceeding any further in the matter. At the said juncture, the applicants were not impleaded in the suit in question and consequently, this Court has proceeded to pass following order on 24.10.2019:-
"Sri Sanjay Kumar Srivastava, counsel for the respondent, has put in appearance.
Although the petitioners have applied for impleadment in Original Suit No.857 2014 the application is still pending.They have filed the instant petition seeking quashing of the entire proceedings of the suit and also the order dated 30.7.2014, by which temporary injunction was granted in favour of the plaintiff-respondents. They have also prayed for a direction to the trial court to decide the application under Order 7 Rule 11 C.P.C. filed by the defendant-Bank.
Since the petitioners have yet not been impleaded, therefore, this Court is not inclined to entertain the prayers made in the instant petition at their behest. However, the petition is disposed of with direction to the trial court to decide the application for impleadment filed by the petitioners expeditiously, preferably within a period of eight weeks from the date of receipt of certified copy of this order. In case the petitioner's impleadment application is allowed, it shall be open to them to move their own independent application for rejection of the plaint and in which event, the trial court shall be obliged to decide the said application in accordance with law."
In this backdrop, Shri Vinayak Mithal, learned counsel for the petitioners submits that admittedly, the petitioners are bonafide purchasers of the property in question but on the basis of the interim injunction accorded by the Civil Court, the plaintiff-respondent no.1 is enjoying the property in question. Even the application under Order VII Rule 11 CPC for rejection of plaint has yet not been decided by the Court below. He further submits that as per the provisions contained under Section 34 of the SARFAESI Act 2002, there is clear cut bar to the civil court 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 the Act to determine. Further 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 the Act. In support of his submission, he has placed reliance on the order of this Court dated 04.12.2012 passed in Writ C no.62174/2012 (Shrawan Kumar @ Pappu vs. Nirmala). While passing the said order, the learned Single Judge of this Court has relied upon the order passed by this Court in Prem Shanker Tripathi vs. The First Additional District Judge, Allahabad and others 1986 AWC 925 as well as Gulab Chandra vs. The Munsif West, Allahabad and others 1988 AWC 537 and quashed the plaint of Original Suit no.1033 of 2012 (Shrawan Kumar @ Pappu vs. Nirmala) with following observations:-
"His Lordship's of this court in Prem Shanker Tripathi Vs. The First Additional District Judge, Allahabad and others 1986 AWC 925 ruled that a suit of frivolous and vexatious nature which scandalises the administration of justice is clearly against the dictates of the public policy should not be taken cognizance of as it is impliedly barred and the High Court in exercise of suo motu supervisory power can quash the plaint of such a suit.
A similar view has been expressed by Division Bench of this court in Gulab Chandra Vs. The Munsif West, Allahabad and others 1988 AWC 537 and it has been observed that a litigation which is sham, illusory, collusive or which is inspired by nefarious and vexatious designs should be nipped in the bud and the High court not only has jurisdiction but owes duty to check such litigation in exercise of powers under Article 227 of the Constitution of India by quashing the plaint.
The counsel was put to notice to address the court to show how the suit was maintainable but he was unable to give any assistance.
In view of above legal position, when the plaint of the suit as is before me on its face is vexatious and nefarious in design, I not only consider it my responsibility to refuse to interfere with the order impugned but at the same time in exercise of my suo motu power under Article 227 of the Constitution of India considers it my obligation to quash the plaint itself.
In view of aforesaid facts and circumstances, the plaint of original suit No.1033 of 2012 Shrawan Kumar @ Pappu Vs. Nirmala pending in the court of Additional Civil Judge, (Junior Division), Kanpur is quashed.
The writ petition is disposed of accordingly."
Shri Vinayak Mithal, learned counsel for the petitioners-defendants further submits that so far as the application under Order VII Rule 11 CPC is concerned, the same is also pressed upon by the petitioners and the similar stand has also been taken by the respondent-bank. He submits that the application under Order VII Rule 11 CPC may be decided without further delay.
The said legal position has been accepted by learned counsel for the contesting plaintiff-respondent no.1.
In the facts and circumstances of the case, this Court is of the prima facie opinion that at the first the objection/application under Order VII Rule 11 CPC filed in Original Suit No.857/2014 (Rajiv Chutani v. Bank of India) must be decided by the Court below and only thereafter the suit proceeding shall be finalized.
Consequently, without adverting to the merits of the case, the present matter is disposed of asking the Court below to firstly decide the application under Order VII Rule 11 CPC, as has been pressed by the petitioners and the respondent-bank, as expeditiously as possible and preferably within a period of four months from the date of receipt of a copy of the order, without according any adjournment to either of the parties and without deciding the said application, the Court below is restrained to proceed further in the suit proceeding.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 22.10.2020 RKP