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High Court of Judicature at Madras
K. RAVICHANDRABAABU, J.
K. Deenadayalan
Versus
N. Sathish Kumar & Another
C.R.P.(PD).Nos. 941 & 2496 of 2011 & M.P. Nos. 1 & 1 of 2011
Decided on: 18-12-2014
Recovery of Debts due to Banks and Financial Institutions Act, 1993 - Section 18 - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Civil Procedure Code - Order 7 - Rule 11 - Order of interim injunction - Sale Certificate issued - Debts Recovery - Peaceful possession and enjoyment of second schedule property - Respondent these two Civil Revision Petitions is one and same and he is plaintiff in above said suit filed for declaration that sale by public auction and Sale Certificate issued pursuant to public auction by sixth defendant namely the Recovery Officer of Debts Recovery Tribunal Coimbatore fourth defendant namely petitioner herein in respect of first schedule property are null and void unenforceable and not binding on plaintiff for injunction restraining defendants from interfering or disturbing peaceful possession and enjoyment of plaintiff in respect of second schedule property and for partition of first schedule property and allotment of separate possession of second schedule property forming part of the first schedule property plaintiff - first schedule property is a joint family property of one Late and during his lifetime said property was enjoyed jointly by said person and his sons - After his demise sons as members of entered into a family arrangement and oral partition - An extent acres together with building bearing and of Rural Village which is first schedule property was allotted to one of sons of said – Held, Arguments were also advanced to interpret scope of Section 20 of Recovery of Debts Due to Banks and Financial Institutions Act dealing with appeal to Appellate Tribunal - According to learned counsel for respondent plaintiff being not a party to proceedings before is not entitled to file any appeal, as sub-section (3) of Section 20 of said Act contemplates time limit of from date of receipt of a copy of order made by Tribunal to file an appeal before Appellate Tribunal - On other hand learned Senior Counsel appearing for petitioner fourth defendant submitted that appeal can be filed by any person as provided under sub-section (1) of Section 20 of said Act and therefore any person shall mean and include even a person who is not a party to proceedings before - This Court is not inclined to go into that issue and give a finding same because present issue before this Court is as to whether plaint is liable to be rejected under Order 7 Rule 11 ground that suit is barred by law - As this Court has found that suit is not barred question of considering appeal provision at this stage does not arise as admittedly respondent plaintiff was not a party to proceedings before - Further it is to be seen that apart from first limb of prayer made in suit plaintiff has also sought for two other reliefs namely injunction and partition - It is needless to say that those reliefs which are purely of civil nature have to be considered and adjudicated upon only by Civil Court - It is well settled that for considering application under Order 7 Rule 11 CPC only plaint averments as such have to be taken into consideration to find out as to whether plaint is liable to be rejected for grounds referred to in application under Order 7 Rule 11 CPC - As plaint in this case has referred to fraud suppression of facts and invalid proceedings before as though they were initiated against a dead person etc - It is for plaintiff to establish same before trial Court and therefore whether there was any fraud or not etc - alleged by plaintiff is not for this Court to consider same at this stage and decide based on counter allegations made by petitioner fourth defendant. Therefore other decisions relied on by learned Senior Counsel appearing for petitioner in respect of all these contentions are not relevant be referred at this stage – Petition disposed of
1. C.R.P.(PD).No.941 of 2011 is filed by the fourth defendant in O.S.No.35 of 2010 on the file of the Subordinate Court, Nilgiris at Udhagamandalam, aggrieved by the order of interim injunction granted in I.A.No.153 of 2010, confirmed in C.M.A.No.26 of 2010 on the file of the District Court, Nilgiris at Udhagamandalam.
2. C.R.P.(PD).No.2496 of 2011 is filed by the very same fourth defendant in the said suit, challenging the order of the trial Court in dismissing his application filed under Order 7 Rule 11 CPC for rejection of plaint.
3. The respondent in these two Civil Revision Petitions is one and the same and he is the plaintiff in the abovesaid suit filed for declaration that the sale by public auction and the Sale Certificate issued pursuant to the public auction by the sixth defendant, namely the Recovery Officer of the Debts Recovery Tribunal, Coimbatore, to the fourth defendant, namely the petitioner herein in respect of the first schedule property, are null and void, unenforceable and not binding on the plaintiff; for injunction restraining the defendants from interfering or disturbing the peaceful possession and enjoyment of the plaintiff in respect of the second schedule property and for partition of the first schedule property and allotment of separate possession of the second schedule property forming part of the first schedule property, to the plaintiff.
4. The case of the plaintiff in the said suit, in short, is as follows:
(a) The first schedule property is a joint family property of one Late C. Lakkay Gowder and during his lifetime, the said property was enjoyed jointly by the said person and his sons. After his demise, the sons as members of co-parcenary, entered into a family arrangement and oral partition in the year 1968. An extent of 1.16-1/4 acres together with the building bearing Door Nos.2/379 and 2/387 in R.S.No.169/1 of Ootacamund Rural Village, which is the first schedule property, was allotted to one L. Srikantiah, one of the sons of the said Late C. Lakkay Gowder. The said Srikantiah constituted a joint family along with his two sons, namely the defendants 1 and 2 and all the three of them conveyed the property measuring 1.51 acres of agricultural land in R.S.No.169/1.A described as the second schedule, in favour of the plaintiff, in pursuant to the sale agreement, dated 17.10.2002 and the sale deed dated 17.2.2003. The possession was also delivered, in between, on 21.10.2002. The plaintiff is the bona-fide purchaser.
(b) The fourth defendant purports to be the auction purchaser in a fraudulent sale conducted by the sixth defendant in respect of the amount advanced by the fifth defendant to a third party. The deceased Srikantiah purports to have stood as surety for certain amounts said to have been advanced by the fifth defendant to a third party. The plaintiff had no notice of any transaction or dealings between the deceased Srikantiah and the Bank. The plaintiff is in continuous possession and enjoyment of the properties from 21.10.2002 onwards.
(c) The fourth defendant who is an utter stranger, came to Adasholai on 28.2.2010, claiming to have purchased the second schedule property and that he had taken over vacant possession of the land through the Recovery Officer. The alleged sale by the sixth defendant had been done contrary to the Act and Rules and in utter violation of the principles of natural justice. The sale is illegal and tainted by fraud and mala-fide, inasmuch as the conveyance executed in favour of the plaintiff is very much anterior in point of time, which was suppressed by the sixth defendant without disclosure in the proclamation of sale. The sale if any, can bind only the undivided share of Late Srikantiah and the rights and interest of the defendants 1 and 2 cannot be burdened towards the liability of a surety, namely their father-Srikantiah.
(d) The plaintiff is neither the borrower nor a party to the alleged proceedings before the Debts Recovery Tribunal (for short, 'the D
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