ORDER

Heard.

1. The present revision is arising out of order dated 4.2.2020 passed by the Judicial Magistrate, Class I, Indore in Civil Suit No. 33A/2020.

2. Facts of the case reveal that Smt. Sarswatidevi Maheshwari (Sharda) has filed a civil suit against the Bank of Baroda, one Shailendra and J. P. Singh for declaration and for grant of permanent injunction. In the civil suit, the Bank was impleaded as one of the defendants as the Bank has initiated action in respect of the property, i.e., Plot No. 73, situated at Silver Colony, Indore, which is under the Abhishek Cooperative Society. The undisputed facts reveal that the plot in question was mortgaged with the Bank of Baroda in the year 2016 by defendants Shailendra and J. P. Singh. A loan obtained after completion of KYC formalities, legal scrutiny report, valuation report and e-Registry, sale deed dated 9.2.2016 as well as the earlier sale deed dated 8.6.1985 of the same plot. Initially, the borrowers kept on paying the instalments, however, after paying few instalments, the borrowers stopped paying the instalments and, therefore, the account was declared as Non-Performing Asset on 2.1.2019 and the Bank has initiated action u/s. 13 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The undisputed facts also reveal that one Nalini has purchased the plot in question, i.e., Plot No. 73, from Abhishek Cooperative Society on 8.6.1985; the sale deed is also on record filed by the learned counsel by the respondent. The same plot was later, on 20.5.1986, sold to non-applicant/plaintiff Smt. Sarswatidevi Maheshwari (Sharda). Smt. Sarswatidevi Maheshwari (Sharda) though purchased the plot in the year 1986, did not take any steps till February, 2019 stating that the plot has been fraudulently sold to Nalini earlier on 8.6.1985. Smt. Sarswatidevi Maheshwari (Sharda) woke up from the slumber only when the Bank has initiated recovery proceedings and has taken action u/s. 13 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

3. The another undisputed fact also reveals that Smt. Sarswatidevi Maheshwari (Sharda) has filed a civil suit earlier, i.e., CS No. 656A/2019 against Nalini, Shailendra and J. P. Singh for declaring the sale deed which was executed in favour of Nalini dated 8.6.1985, as null and void. The most important aspect of the case is that Smt. Sarswatidevi Maheshwari (Sharda) is claiming to be the title holder of the property, she derives title based upon the sale deed dated 20.5.1986 which was sale deed executed by the Society, i.e., Abhishek Cooperative Society in her favour and the sale deed which was executed in favour of Nalini is dated 8.6.1985. It has also been executed by the Abhishek Cooperative Society. For the reasons best known to the plaintiff, the Cooperative Society has not been impleaded as one of the defendants in the first civil suit. Otherwise, the Cooperative Society could have very well produced its record before the trial Court. Smt. Sarswatidevi Maheshwari (Sharda) has later on filed a second civil suit, i.e., CS No. 33A/2020 now impleading the Bank of Baroda as one of the defendants and very conveniently she has omitted to implead Nalini and the Cooperative Society as defendants even though Smt. Sarswatidevi Maheshwari (Sharda) was well aware that she has filed the earlier suit against Nalini in whose favour there is a sale deed executed prior in time, i.e., 8.6.1985. The second civil suit was filed only after the Bank was auctioning the property as the borrowers have failed to repay the dues. An application was preferred in the second civil suit by the Bank of Baroda under Order 7 rule 11 of the Code of Civil Procedure, 1908 and the same has been dismissed. The present revision has been filed against the order dated 4.2.2020 passed by the learned Judge rejecting the application under Order 7 rule 11 of the Code of Civil Procedure, 1908.

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