CR No.3358 of 2014 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3358 of 2014 Date of Decision: 13.05.2014 Vinod Kumar ....Petitioner Versus Union Bank of India and others ....Respondents CORAM:- HON'BLE Mr.JUSTICE RAJIV NARAIN RAINA Present: Mr.Anil K.Aggarwal, Advocate, for the petitioner.
1.
To be referred to the Reporters or not?.
2.
Whether the judgment should be reported in the Digest?.
RAJIV NARAIN RAINA, J.
The challenge in this petition filed under Article 227 of the Constitution of India is against the order dated February 26, 2014 passed by the learned Additional District Judge, Kapurthala affirming the order of the Civil Judge (Junior Division).Phagwara dated May 24, 2012 declining temporary injunction to the petitioner on his application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (CPC).Both the Courts below have dismissed the application primarily on the ground that the Civil Court has no jurisdiction in the subject matter of the suit.
The subject matter of the suit is substantially the subject matter before the Debts Recovery Tribunal-II, Chandigarh where proclamation of sale has been issued under Rule 52(2) of the Second Schedule in the Income Mittal Manju 2014.05.22 11:16 I attest to the accuracy and integrity of this document Chandigarh CR No.3358 of 2014 -2- Tax Act, 1961 read with the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 as amended from time to time.
The property which is sought to be protected through temporary injunctions in a suit filed by the petitioner for declaration to the effect that the plaintiff Vinod Kumar is the exclusive owner in possession of a double storeyed house, situated in Indira Nagar, Joshian Mohalla, Phagwara District Kapurthala which is being put to auction to realise money in order to apply the sale proceeds towards recovery of debt.
The suit property is a five marla house and its sale money would discharge the public debt due to the Bank against mortgage as security for the loan.
The brief facts are that the petitioner's father and his elder brother purchased the property in 1956 which was duly mutated in joint names in revenue record.
The property was joint family property.
The father's brother expired in 1972.
His legal heirs sold 50% share in the house in 1980 to Smt.
Kamlawati, mother of the petitioner vide registered sale deed.
The petitioner alleges that 50% share in the house was purchased in her name out of joint funds of the family, the petitioner being Karta.
Smt.
Kamlawati had no personal source of income.
Smt.
Kamlawati had mortgaged the suit house property in favour of the Union Bank of India as security for payment of loan extended to M/s Satyam Cottex, the debtor.
The petitioner alleges he learnt of this for the fiRs.time in 2012 that M/s Satyam Cottex had defaulted in re-payment of its dues to the Bank and hence the Bank was coming down on the house to satisfy its debt.
This led to the filing of the civil suit claiming declaration that the petitioner was owner in possession of the said house and grant him permanent injunction to the effect that the defendants Mittal Manju 2014.05.22 11:16 I attest to the accuracy and integrity of this document Chandigarh CR No.3358 of 2014 -3- be restrained from taking forcible possession of the house in dispute from the plaintiff except in due couRs.of law.
In that suit, the temporary injunction has been refused by both the Courts below.
It is argued on behalf of the petitioner that the suit property was never the personal self-acquired property of Smt.
Kamlawati, Parveen Sharma and Manoj Sharma and they had unauthorizedly mortgaged the property in favour of the bank.
When his father died in 1972 at a young age, the responsibility of the family fell on him and he took care of his younger brothers and sisteRs.he being the eldest.
In 2006-07, a will of late Madan Lal was propounded making Smt.
Kamlawati the beneficiary of the will which is alleged to be forged and fabricated.
It was said to be executed on October 8, 1969.
The will is not registered.
The will has not suffered Probate proceedings and Letters of Administration.
The will was kept back for 35 years to be propounded in April 2007 for the fiRs.time.
That no notice was issued to the legal heirs of late Madan Lal before transferring the property in the name of Smt.
Kamlawati.
It is argued that action has not been taken by the bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
On the other hand, the defendant bank has taken recouRs.to proceedings under the Debts Recovery Act, 1993 for which it filed Original Application No.152 of 2010 before the learned DRT.
That is how the Recovery Certificate No.30 of 2013 was issued and the Recovery Officer has proceeded to issue proclamation of sale dated March 31, 2014.
The Courts below were wrong in acting under SARFAESI Act, 2002 to oust jurisdiction of the suit and, therefore, the application for temporary injunction was dismissed.
Mittal Manju 2014.05.22 11:16 I attest to the accuracy and integrity of this document Chandigarh CR No.3358 of 2014 -4- The question is that if the property stands mortgaged to the bank and proceedings were taken for recovery by the bank then is the bank correct in resorting to such procedure.
In the face of proceedings pending before the DRT-II, Chandigarh, the petitioner may have no remedy in a civil suit claiming ownership and possession of the disputed property.
His remedies, if any, can lie only before the DRT where he is free to ventilate his grievances either under the Income Tax Act or any other law if it protects him.
That is a matter in the province of Debt Recovery Tribunal.
There is, therefore, no reason for this Court to interfere with the impugned orders declining temporary injunction.
The reliance of the petitioner on Indian Bank versus ABS Marine Products PVT.Ld., AIR2006Supreme Court 1899 is misplaced.
This was a case under the Recovery of debts due to Banks and Financial Institutions Act, 1993 where applications were filed under Section 18 and Section 31 thereof for transfer of suit to the Tribunal.
The application by the bank before the Tribunal for recovery against the borrower company was held not maintainable for thr reason that the cause of action for bringing suit for alleged breach by bank in not releasing the sanctioned loans, then the borrower company's suit and the bank's application were not inextricably connected.
The Supreme Court held that in such a case provisions of Section 31 are not applicable to the suit and consequently, the application by the bank for transfer of said suit to the Tribunal was not maintainable.
In the present case, the property has been mortgaged as security for loan and, therefore, the judgment relied upon is of no help to the petitioner.
In the result, no merit is found in this petition which is ordered to Mittal Manju 2014.05.22 11:16 I attest to the accuracy and integrity of this document Chandigarh CR No.3358 of 2014 -5- stand dismissed.
(RAJIV NARAIN RAINA) JUDGE1305.2014 manju Mittal Manju 2014.05.22 11:16 I attest to the accuracy and integrity of this document Chandigarh