Karnataka High Court
Sarwan Kumari vs Mahendra Kumar Gupta on 1 July, 2010
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE MISCELLANEOUS FIRST APPEAL No. 2946 Dated the 13% day of July 2010 :BEFORE: __,_ HON'BLE lViR.JUSTICE : V.JAGANN_ ;*r;LA;§jj E' BETWEEN : 1.
Queens Road, Bangalore.
Smt.Sarwan Kumarig' ._ " _ ;
W/0 Late N.R.Guptha.,t"Aged ai)Qu't,?'1: "
R/a N0.702, 7"! F1001', Wing, "
Queen's Corner. Apa1jfIf1€fIfS;""
3, Queens Road,fBa11ga1ore--.,'a. Smt.Usha Gupth--a_@ Usha,' * W/0 Late ShyéunsuEnaer"Gu_pth'a, D/o_Late¥'1eI\I,R.,Gup3:ha,_Aged abbut 54 years, R/:1 N0";70"2';._ 7th---.1;?3edt>r,," fA'*.w;ng, _Que'eIfs *C,orr;erV Apa-rtfnenits, 3, EQueens"7Roa'd.,_'BangaI0re. xASz11t.SVabit19:I;aL._.:Jai_ti"@-'Sabitha, Wm MVr.Aj_ay.J"a.jf;;~, D/0 Late N.R.Guptha, E A, Aged about 46 years, R/a No.'702, 731 F1001: Wirlg, Queezfs Corner Apartments, ...Appe1la:r1ts 'V A T.S.Arnar Kumar, Advocate, for M/s Lawyers Inc. ) Sri Mahendra Kumar Gupta.
S/0 N.R.Gupta, Aged about 52 years. R/a No.42, Vittal Mallya Road. Banga1ore--560 00 1.
2. Sri Pavan Kumar Gupta, S / 0 Late N.R.Gupta, Aged about 49 years, No.42, Vittal Mallya Road.
Bangalore-560 001.
3. Canara Bank, ' » A body corporate constituted by the _ Banking Companies Act, 1970 having V its Branch Office at Cantonm,ent,_7 M.G.Road, Bangalore--56{) 001'; ~ _ H « 'A 0 A ' it ' ~ .. .".Resp0i'idlen:ts ( By Sri B.V.Acharya,"~S_enior Sri H.S.Rukk0ji"Ra'o for C/Rx'./3; } Miscellaneous under Order 43 Rule 1(r) of the c.P.e.--e"gaine;1ihe"2er§-eel 'dated 20.2.2010 passed on i in i'050,?2009 on the file of the XLIIP 4C{i.vil" Judge, Bangalore, rejecting_l:,ApNo1.iI§1 39, Rules 1 and 2 of the C?_.P.,C. ~ d This on for admission this day, the Court deli\reI'ec_l"t'he faiiowmg :
id" RHJUDGMENT """
._ is heard and disposed of finally at the stagevrof admission itself.
is 4' The appellants are the plaintiffs in the court below the suit filed by them is for partition of their 1/ 531 V "lshare in the suit schedule properties. During the E;
'I pendency of the said suit, I.A.No.1 was filed by the appellants seeking an order of temporary injunction restraining the defendants from alienating'..theV.._suit schedule property. The property measuring 2 acres and 16 guntas4situated'_'at"'7§l1..Vl\«iile{»_ Hosur Road, Hongasandra Bangalore South Taluk','f.,.:iS..V' the" only property and the trial cot1rtV;."'gafte.r hearing Vbloth sides, rejected the said 'lgivii1g:'»r1se':to.;th.is appeal by the plaintiffs.
3. Ixearnedg Kumar for the appellants?p£"_u'ntiffs4fsuvbmitted that the suit schedule propertygéfwas property of N.R.Gupta, husband offirst appellant and father of the other said N.R.Gupta was one of the Directors Industries Ltd. which had availed loan from "---§2.--3";(3anara Bank for the purpose of its business V " and late N.R.Gupta stood as a guarantor to the said hzarnfount and furnished his personal guarantee as H security for the loan. and also had mortgaged the suit schedule property in favour of R-3 Bank. As the suit is /:9?
now filed for partition, the appellants prayed for temporary injunction restraining the defendants including the Canara Bank from alienating»,tl1e*~._Suit schedule property.
4. The defendants in their o._hj.ec_tion-s"to'' { r _ on the other hand, contendedithge suit schedule property the" Bar1}{.y_is:._;'subsisting' despite the personal . .fu1fnishe'dv V by, Gupta was waived. Therelflore;t 'of the Bank being restrained property in Reconstruction of Fivnanclilallflassets filnforcement of Security Interest Act, 2l(302 Act' for short) does not arise. "learned. judge accepted the contention put Bank and dismissed the application i.e.,
5. " learned counsei for the appeilants-pIa1'ntiffs V.sul;>mitted that the Bank had waived the personal l fguarantee furnished by late N.R.Gupta and this is ciear from the document dated 4.4.2005 and, as such, the 2* gt question of the mortgage subsisting does not arise. In this connection, reference was made by the learned counsel for the appellants to the Corporvate-.._:lfDebt Restructuring (CDRJ package and to produced by the plaintiffs before. the trial" .It--- » therefore, contended that the declining to grant an ordei'.of~.injunction as so__u'ght'"for by V the plaintiffs and more sop,-whenlthe personalliguarantee furnished by the question of the mortgage_ arise. Having regard to"t'h_eV trial court and the suitvbeiiiggionell:ffo~r trial court, therefore. was not the relief sought under if A Asupport--~"his submission that the suit is l the provisions of Section 34 of the Securvitilsation Act coming as a bar does not arise, the learnecl counsel for the appellants placed reliance on court's decision in the case of Vysya Co-operative Bank Ltd. Vs. Ms. G.Keerthana, reported in AIR 2008 Karnataka 25, It is also argued in this connection that «tr if the plaintiffs were to succeed in the suit for partition. in the meanwhile if the Bank were to proceed to alienate the suit property, the plaintiffs would be p1_;t..vV_:to'l~1oss. Therefore, all these factors were not taken-intofiecoiint, by the trial court.
7. On the other hand, lea1;*neci_'_Alsenior B.V.Acharya for the that the document produced 'i'e.spondent.-icgaefore this court would go to -._Was waived on
4.4.2005 wasgtlie furnished by iate N.R.Gup:ita mortgage of the suit schedule. and-.,.t'h.ere is no question of the said Inortgage' getting extinguished along with thewaiver ofpersonal guarantee and it is not possible to , *r.ead_the_"s--aid circumstance in the waiver proceedings . elated' éi;4__. The con package itself was Withdrawn Bank and the plaintiffs did not take any steps " thereafter till the filing of the suit in the year 2009. Referring to the documents produced, the H submission made is twt, it has been cleariy stated in 1,/,' I' the document dated 24.2.2005, which was issued by the CDR Cell to the Chamundi Industries Ltd., and that Annexure--I to the said document will c1eattl§V,f'...'_:'gi;~o to indicate that restructuring package envisagesllsale-..off properties. and the property th_a.t..is 4meriti'oi"lle;d'VatiVite1nj--2' » in the list of properties which':.'ha'_:si*~been_ Canara Bank, therefore.,v:v""-yvasd" sold notwithstanding the.restr1.tcVturifi~g_ pack-a.geH,.bffered by the Bank pursuant 'tothe,_fiieeti1ig.he1d on 8.12.2004. As such, the jtj1stifi'ecl.V' holding that no prima facieo:-;se' In-a;l_e"~out_by the appellants.
9. An.othle1j.li_rnbof"-argument of the learned senior counsel._is» that appellant i.e., the wife of late her two sons, also filed applications Debt Recovery Tribunal and the said ~_ applica{t'i.onVs"itrere also dismissed by the BRT and those applications arose in the context of demand notice " issued under Section 13(2) of the Securitisation Act 'u*§i"lo1'loWir1g which the Bank took possession of the suit H schedule property. As such, the trial court was justified in dismissin§the LA. filed. The learned senior ./ counsel also referred to a decision of the Apex Court reported in 2006 AIR SCW 5991 to contend that Section 34 of the Securitisation Act comes as a bar in_4ite;s.pect of the proceedings initiated by the Bank Act. Therefore, the appeal be d_i_.sm_i_ssed." " '-3 .
10. Having thus heard both through the impugned ofhthe taking note of the decisions"e.it*e§1;.._: aznunable to agree with the contentions learned counsel for the appe-lia.n_.ts. '_:.couiszt,:V while dismissing I.A.No.1,::" thle""pi'oceedings which led to the %'2Vva.ix_rerAVoftheeperson_a1 guarantee and has taken the View that wai.ver' personal guarantee cannot be cognstrued as extinguishing the mortgage in favour of the
-1; the trial court also took note of the fact that merely because the personal guarantee was waived, is the plaintiffs cannot seek an order of injunction against ' "tithe Bank particularly when the matter is seized by the DRT. Another aspect referred to by the trial court is }< .4' that, when the CDR package itself was withdrawn, whatever concession given by letter dated 4.5.2005 also stood cancelled and moreover, the said conce_ssionl'was given as the deceased was bed«ridden time. Therefore, the trial court..has_"ojf3V:i'rIVr'c.*5IL"l ' . material placed before it does not view that waiver of personal guarantee .also*sr'r1'eunts to V the extinguishment .---of theV.l-iiiortglage executed': in favour of the Bank.
12. A9 44 by the learned oioncerned, no doubt, this coma: has Securitisation Act and Section 34 of come in the way of a suit being for partitilon «as it is only civil court that can »A such a suit and not by the DRT. As the if the mortgage of the suit schedule vvith the Bank stands extinguished or is in if exwistelnce itself is being seized by the DRT, the trial court, therefore, did not commit any error in rejecting I.A.No.1 filed by the appellants.
92 . I E0
13. For the above reasons, the appeal iacks merit and is accordingly dismissed.
sdf~ 3 Q _ ckc/-