Civil suit by bona fide third-party purchaser alleging fraud in prior gift and mortgage deeds not barred by SARFAESI Act; jurisdiction vests in Civil Court as Debt Recovery Tribunal cannot adjudicate title and fraud issues for strangers.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this petition, the petitioners have assailed order dated 06.04.2022, passed by learned Civil Judge, Court No.1, Solan, District Solan, H.P. in CMA No. 202/6 of 2021, in Civil Suit No. 19/2020, in terms whereof, an application filed by the petitioners herein, under Order VII, Rule 11 of the CIVIL PROCEDURE CODE (hereinafter referred to as ‘CPC’), was dismissed.

2. The respondent herein has instituted a suit for declaration and for permanent prohibitory injunction as also for mandatory injunction against the present bank and one Amandeep Singh, inter alia, on the ground that the plaintiff is the lawful owner in possession of the property i.e. Flat No.1, situated at Ground Floor, Block 18 Phase II, Housing Board Colony, Saproon, Solan, in terms of a sale deed executed and registered on 11.12.2019. According to the plaintiff, the property was purchased from one Manjeet Singh. The property in question was initially allotted by HIMHUDA to one Smt. Anuradha Mehrotra, who transferred the same subsequently in favour of Manjeet Singh and this was done after seeking due permission from HIMHUDA. After Manjeet Singh became the owner of the property, he sold the same to the plaintiff against consideration. It is further averred in the plaint that the plaintiff was under the bona fide impression that the suit property being free from all type of charges, was transferred in her name as nothing stigmatic appeared to be there and whatever was the charge of ICICI Bank, stood cleared by the plaintiff. Yet now defendants No.1 & 2 are proceeding to take possession of the said property on the basis of some alleged mortgaged documents executed by defendant No.3 Amandeep Singh. It is in this backdrop that the suit has been filed alleging that the bank officials in connivance with Amandeep Singh, had played fraud upon the plaintiff. The reliefs sought in the suit are as under:-

“a) Decree of declaration declaring the Gift deed bearing registration no. 558/2008 alleged to be executed and registered in the name of defendant no.3 and thereafter mortgage deed bearing registration no.661/2015 alleged to be executed in by defendant no.3 in favor of defendant no.1 and 2 as void ab initio, false and fictitious documents and is a result of fraud committed by defendant no.1 to 3 in connivance with each other and same deeds are not binding upon the right, title and interest of the plaintiff in the suit property on the basis of sale deed bearing registration no.2471 registered on dated 11-12-2019.

b) A Decree of Permanent Prohibitory Injunction restraining the defendants no.1 and 2 to misuse the process of law to take the possession of the suit property i.e. bearing Flat No.1, Ground Floor, Block 18 Phase II, Housing Board Colony, Saproon, Solan, constructed in a land comprised in khata khatoni no.500min/533 khasra no.kita 5 total measuring 74-01 bigahs Tehsil and District Solan H.P. by situated in mauja Dehun dispossessing the plaintiff from the suit property in any manner whatsoever and to create charge, encumbrance of any type in any manner what so ever upon the suit property.

c) Any other additional or alternative relief if this Hon'ble Court deem fit under the present fact and circumstances of the case, may kindly be passed in favor of plaintiff and against the defendants in the interest of justice and fair play.”

3. Written statement to the plaint stands filed by the present petitioners. A counter-claim has also been filed by the petitioners before the learned Trial Court.

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