Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.M. Akbar Ali, J.
Indian Bank, Asset Recovery Management Branch, rep. by its Chief Manager, Chennai-8 and Others
Versus
B. Venkataraman, S/O. Late. S. Balasubramaniam, Chennai-61 and Others
Appln Nos. 4920 of 2011 and 1456 of 2012 in C.S. No. 634 of 2010
Decided on: 28 April 2014
SARFAESI Act – Section 13(2) - RDDBFI Act - Section 19 - Civil Procedure Code - Order VII - Rule 11 - Possession of share - Permanent injunction - Suit for a declaration that equitable mortgage - Plaintiffs have filed suit for a declaration that equitable mortgage created by their father is null and void and would not bind shares of plaintiffs over plaint schedule property and for a consequential permanent injunction restraining bank from proceeding under Act and also for recovery of a sum of from bank to plaintiffs - Present application is filed to amend plaint prayer to one that of a prayer for a partition and separate possession of share of plaintiffs - Suit property originally belonged to one grandfather of plaintiffs who purchased same by a registered sale deed - He died leaving behind his wife - Two sons died leaving behind above two sons as legal heirs - They divided property by a family arrangement and suit property was allotted to father of plaintiffs - Therefore it is an ancestral property in hands of sand and plaintiffs are entitled share as per Hindu law – Held, In present case Bank would contend that by a release deed executed by one had become absolute owner of property which is also evidenced by a confirmation of family arrangement - However contention of plaintiffs is that confirmation of family arrangement would reveal that property is an ancestral property and by a division between two brothers secured asset was allotted to said and his sons and thereby it is an ancestral property where plaintiffs have share and the said has only share - At this juncture this court is not inclined to go into merits of matter and give a finding on nature of property and rights of parties - Even assuming that a partition suit can be filed by plaintiffs treating property as ancestral measures taken by Bank is also under question - Such question has to be decided only by Tribunal or by Appellate Authority - This court is of considered view that same can be adjudicated by Tribunal and test right of If an application to decide rights of parties is filled Tribunal is bound to decide same - Having opposed this proceedings bank can not oppose filing of such application - Counsel for plaintiffs had relied on various case laws in support of amendment of plaint in respect of relief this court is of view that a partition suit cannot be maintained before a civil court which also involves challenging measures taken under section 13 of Act - However an application as stated above can be filed before Debt Recovery Tribunal and Tribunal can adjudicate all questions including rights of subsequent purchasers and auction purchasers - In view of such circumstances application filed for amendment of plaint cannot be allowed and is liable to be dismissed - However it is open to plaintiffs to approach Debts Recovery Tribunal to prove that secured asset is an ancestral property and mortgage is not binding on plaintiffs – Application is dismissed
Mr. G.M. AKBAR ALI, J.
1. Application No.4920 of 2011 filed under Order VII Rule 11 of Civil Procedure Code r/w Order 14 Rule 8 of Original Side Rules to reject the plaint filed in C.S.No.634 of 2010.
Application No.1456 of 2012 filed under Order VI Rule 17 of Civil Procedure Code r/w Order 14 Rule 8 of Original Side Rules to amend the plaint.
2. The applicants in Appln.No.1456 of 2012, who are the legal heirs of one Dr. S. Balasubramanian, has filed the present suit in C.S.No.634 of 2010 against the Indian Bank, questioning the measures taken by them in SARFAESI proceedings. The Bank has filed the application in Appln No.4920 of 2011 to reject the plaint.
3. For convenience sake, the applicants in Appln.No.1456 of 2012 are referred as the “plaintiffs” and the Indian Bank is referred as “Bank”. Since both the matters are interconnected and identical issues to be decided, both the applications are disposed of by a Common Order.
4. The plaintiffs have filed the suit for a declaration that the equitable mortgage created on 27.5.1995 by their father, S. Balasubramanian is null and void and would not bind 4/5th shares of the plaintiffs over the plaint schedule property and for a consequential permanent injunction restraining the bank from proceeding under SARFAESI Act and also for recovery of a sum of Rs. 20,00,000/- from the bank to the plaintiffs.
5. The present application No.1456 of 2012 is filed to amend the plaint prayer to one that of a prayer for a partition and separate possession of 4/5th share of the plaintiffs.
6. The brief averments made in the plaint as well as in the present application for amendment are as follows:
(a) The suit property originally belonged to one V. Srinivasan, the grandfather of the plaintiffs, who purchased the same by a registered sale deed dated 7.4.1960. He died on 14.9.1979, leaving behind his wife Smt. Parvathi and two sons viz., S. Balasubramanian and S. Swaminathan. Smt. Parvathi died on 22.2.1991, leaving behind the above two sons as legal heirs. They divided the property by a family arrangement dated 13.2.1995 and the suit property was allotted to S. Balasubramanian, the father of the plaintiffs. Therefore, it is an ancestral property in the hands of the said Balasubramanian and the plaintiffs are entitled 4/5th share as per Hindu law.
(b) The said Balasubramanian died on 29.6.2005 and his wife Suguna pre-deceased him. After the demise of the father, the plaintiffs came to know that the suit property was given as collateral security to the Bank for a loan sanctioned to one G. Gopalakrishnan, proprietor of M/s G.K. Movie Land. They also came to know that the Bank has filed O.A.No.102 of 2004 on the file of Debts Recovery Tribunal-I, Chennai against the said Balasubramanian for the recovery and for the attachment of the secured debt.
(c) The plaintiffs came to know about the said proceedings only when the property was brought for sale under SARFAESI Act in the year 2009. However, there was a private negotiation for the sale of the property to the second defendant, who agreed to discharge the loan and thereby redeem the mortgage property with the help of the bank. The plaintiffs agreed for private negotiation and executed a sale deed dated 14.8.2009 for a sale consideration of Rs. 60,00,000/- in favour of the second defendant and received Rs. 5,00,000/- and the balance consideration of Rs. 55,00,000/- to be paid to the bank.
(d) However, the second defendant neither paid the sale amount to the bank nor to the plaintiffs. In fact, only thereafter, the plaintiffs came to know that the suit property is an ancestral property and they have equal share along with the deceased father who had no right to create equitable mortgage and such mortgage will not bind the shares of the plaintiffs.
(e) Therefore the plaintiffs have challenged the SARFAESI proceedings. They have also filed the present suit for the reliefs as stated above.
(f) On appearance, the Bank intimated that the suit property has already been
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
