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2018 Supreme(P&H) 215
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
KULDIP SINGH, J.
Rakesh Goel and another - Petitioners
Versus
The Sher Wood Officers Society and others - Respondents
CR Nos. 7130, 3998 of 2015 (O&M), CR No. 1868 of 2016 (O&M)
Decided On : 20-02-2018
For the Petitioners:Mr. Ashwani Kumar Chopra, Sr. Advocate with Mr. Akshit Chaudhary, Advocate.
For the Respondents:Mr. D.K. Gupta, Advocate.
The main legal point established in the judgment is that the bank cannot invoke the bar of jurisdiction under Section 34 of the SARFAESI Act when the property belongs to a third person, and registered partition deeds serve as prima facie evidence of property ownership.
Headnote:
SARFAESI Act - Property Ownership - 13(4) - [SARFAESI Act, Section 34] - The court discussed the ownership of the property in question and the applicability of Section 34 of the SARFAESI Act. It highlighted the importance of registered partition deeds as prima facie evidence of property ownership and emphasized that the bank cannot invoke the bar of jurisdiction under Section 34 of the SARFAESI Act when the property belongs to a third person.
Fact of the Case:
The plaintiffs filed civil suits seeking declaration of ownership and permanent injunction against the defendants, including Punjab National Bank. The bank invoked Section 34 of the SARFAESI Act, claiming that the jurisdiction of the civil court was barred.
Finding of the Court:
The court found that the plaintiffs had prima facie evidence of ownership through registered partition deeds, and the bank could not invoke the bar of jurisdiction under Section 34 of the SARFAESI Act. It also advised the bank to investigate the fraud committed by the society in mortgaging the property of a third person.
Issues: The main issue was the applicability of Section 34 of the SARFAESI Act and the ownership of the property in question.
Ratio Decidendi: The court held that the bank cannot invoke the bar of jurisdiction under Section 34 of the SARFAESI Act when the property belongs to a third person and emphasized the importance of registered partition deeds as prima facie evidence of property ownership.
Final Decision: The court set aside the lower court's orders in one case and upheld the orders in the other cases, remanding all cases to be tried by a Senior Civil Judge.
KULDIP SINGH, J.
1. This order of mine shall dispose of three connected civil revisions i.e. CR-7130-2015 tilted as Rakesh Goel and another versus The Sher Wood Officers Society and others; CR-3998-2015, titled as Punjab National Bank Versus Ashok Bhatia and Ors. and CR-1868-2016 titled as Punjab National Bank Versus Ajay Mahajan and Ors., as the same question of law and facts are involved in all the revisions. For brevity, the facts are being taken from CR-7130-2015.
2. Impugned in the revision petition is the order dated 30.5.2015 (Annexure P-9), passed by learned Additional District Judge, Amritsar, affirming the order dated 27.2.2015 (Annexure P-7), passed by learned Civil Judge (Junior Division), Amritsar, vide which the plaint of the plaintiffs-petitioners was returned.
3. Present petitioners namely Rakesh Goel and his wife-Rita Goel filed a civil suit for declaration that they are owners and in possession of Plot No. 13, measuring 1000 square yards on the basis of allotment letter dated 24.12.2006 and registered partition deed dated 6.11.2009. They have also sought permanent injunction against defendants including Punjab National Bank, Branch Amritsar Cantt.
4. On appearance before the learned trial Court, respondent No. 4-Bank has moved an application (Annexure P-3) filed under Section 34 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act') taking objections that the jurisdiction of the civil Court is barred under Section 34 of the SARFAESI Act.
5. In the reply, present petitioners-plaintiffs opposed the prayer stating that they had already become the owners of the plot in question by way of partition deed dated 6.11.2009 and that the loan was sanctioned in January 2011. Therefore, a fraud has been committed with respondent No. 4-Bank by office bearers of the society and provisions of the SARFAESI Act are not applicable.
6. Learned trial Court vide impugned order dated 27.2.2015 (Annexure P-7) returned the plaint holding that it is barred under Section 34 of the SARFAESI Act. The order was upheld in appeal by learned Additional District Judge, Amritsar vide its order dated 30.5.2015 (Annexure P-9).
7. In revision petition No. 3998-2015, impugned is the order dated 11.2.2015 (Annexure P-6), passed by learned Civil Judge (Junior Division), Amritsar vide which an application filed by the petitioner-defendant No.4 under Order VII Rule 11 of the Code of Civil Procedure, 1908 was dismissed.
8. Plaintiff filed a civil suit for declaration that he is the owner in possession of the plot No. 81 on the basis of allotment letter dated 29.7.2007 and registered partition deed dated 6.11.2009. They have also sought permanent injunction against defendants including Punjab National Bank, Branch Amritsar Cantt.
9. In revision petition No. 1868-2016, impugned is the order dated 7.12.2015 (Annexure P-6), passed by learned Civil Judge (Junior Division), Amritsar vide which an application filed by the petitioner-defendant No. 4 under Section 34 of the SARFAESI Act was dismissed.
10. Plaintiff-Ajay Mahajan filed a civil suit for declaration that he is the owner in possession of the plot No. 14 on the basis of allotment letter dated 24.12.2006 and registered partition deed dated 6.11.2009. They have also sought permanent injunction against defendants including Punjab National Bank, Branch Amritsar Cantt.
11. I have heard learned counsel for the parties and gone through the case file.
12. A perusal of the plaint shows that plaintiffs-petitioners are seeking declaration against defendants-respondents that they are already owners in possession of plot No. 13 on the basis of allotment letter dated 24.12.2006 and partition deed dated 6.11.2009.
13. Admittedly, in this case a loan of Rs. 20.00 crore was sanctioned in the January 2011 by respondent No.4-Punjab National Bank against the mortgage of property of respondent No. 1-Society which included the present plot in
