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IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Hariram Patidar v. Jat Seeds Greeding and Warehousing
Miscellaneous Appeal No.1998 of 2016 (Indore); against order dated 25.10.2016 passed in Civil Suit No.16-A/2014 by Additional District Judge, Dharampuri, District Dhar; Decided on 11.7.2017.
¼2½ foRrh; vkfLr;ksa dk izfrHkwfrdj.k vkSj iquxZBu vkSj izfrHkwfr fgr izorZu vf/kfu;e] 2002 & /kkjk 34 rFkk 13¼4½ & izfrHkwfr fgr ¼izorZu½ fu;e] 2002 & fuŒ 9¼9½ & /kkjk 34 ds mica/kksa dk ykxw gksuk & djkj ds fofufnZ"V ikyu] O;kns'k vkSj uqdlkuh ds fy, okn & cSad }kjk m/kkj dh olwyh ds fy, uhyke foØ; & cSad }kjk 13¼4½ ds v/khu viuk, x, dksbZ mik;& vk{ksfir ugha fd, x, & /kkjk 34 ds micaèk vkdf"kZr ugha gksrsA ¼iSjk 19 ls 23½
¼3½ foRrh; vkfLr;ksa dk izfrHkwfrdj.k vkSj iquxZBu vkSj izfrHkwfr fgr izorZu vf/kfu;e] 2002 & /kkjk 34 rFkk 13¼4½ & flfoy izfØ;k lafgrk] 1908 & èkkjk 9 & vf/kfu;e dh /kkjk 34 ds v/khu flfoy U;k;ky; dh vf/kdkfjrk dk otZu & dk ykxw gksuk & cSad }kjk m/kkj dh olwyh ds fy, uhyke foØ; & cSad }kjk /kkjk 13¼4½ ds v/khu viuk, x, dksbZ mik; & vk{ksfir ugha fd, x, & djkj ds fofufnZ"V ikyu] O;kns'k vkSj uqdlkuh ds fy, okn & vf/kfu;e dh /kkjk 34 ds mica/k vkdf"kZr ugha gksrs & flfoy U;k;ky; dh vf/kdkfjrk oftZr ugha & okn pykus ;ksX; gSA ¼2009½ 8 ,l lh lh 646] ¼2009½ 8 ,l lh lh 366] ¼2014½ 1 ,l lh lh 479] ¼2017½ 1 ,l lh lh 622 rFkk ¼2017½ 1 ,l lh lh 53 fufnZ"VA ¼iSjk 19 ls 24½
¼4½ flfoy izfØ;k lafgrk] 1908 & /kkjk 9 & foRrh; vkfLr;ksa dk izfrHkwfrdj.k vkSj iquxZBu vkSj izfrHkwfr fgr izorZu vf/kfu;e] 2002 & /kkjk 34 rFkk 13¼4½ & vfèkfu;e dh /kkjk 34 ds v/khu flfoy U;k;ky; dh vf/kdkfjrk dk otZu & dk ykxw gksuk & cSad }kjk m/kkj dh olwyh ds fy,] uhyke foØe & cSad }kjk vf/kfu;e dh /kkjk 13¼4½ ds v/khu viuk, x, dksbZ mik; & vk{ksfir ugha fd, x, & djkj ds fofufnZ"V ikyu O;kns'k vkSj uqdlkuh ds fy, okn & vf/kfu;e dh /kkjk 34 ds micaèk vkdf"kZr ugha gksrs & flfoy U;k;ky; dh vf/kdkfjrk oftZr ugha & okn pykus ;ksX; gSA ¼iSjk 19 ls 24½
(1) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss.17 and 13(4) -- remedy of appeal -- plaintiff not aggrieved by any measures taken by Bank under section 13(4) -- question of availing remedy of appeal under section 17 does not arise. [Para 18
(2) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss.34 and 13(4) -- Security Interest (Enforcement) Rules, 2002 -- R.9(9) -- applicability of provisions of section 34 -- suit for specific performance of agreement, injunction and damages -- auction sale by Bank for recovery of loan -- any measures taken by Bank under section 13(4) -- not challenged -- provisions of section 34 not attracted. [Paras 19 to 23
(3) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss.34 and 13(4) -- Civil P.C., 1908 -- S.9 -- bar of jurisdiction of civil Court under section 34 of Act -- applicability of -- auction sale by Bank for recovery of loan -- any measures taken by Bank under section 13(4) of Act -- not challenged -- suit for specific performance of agreement, injunction and damages -- provisions of section 34 of Act not attracted -- jurisdiction of civil Court not barred -- suit is maintainable. (2009)8 SCC 646, (2009)8 SCC 366, (2014)1 SCC 479, (2017)1 SCC 622 and (2017)1 SCC 53 referred to. [Paras 19 to 24
(4) Civil P.C. 1908 -- S.9 -- Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss.34 and 13(4) -- bar of jurisdiction of civil Court under section 34 of Act -- applicability of -- auction sale by Bank for recovery of loan -- any measures taken by Bank under section 13(4) of Act -- not challenged -- suit for specific performance of agreement, injunction and damages -- provisions of section 34 of Act not attracted -- jurisdiction of civil Court not barred -- suit is maintainable. [Paras 19 to 24
1. The appellant/plaintiff has filed the present appeal under Order XLIII rule 1(a) of CPC against the order dated 25.10.2016 passed in Civil Suit No.16-A/2014 by Additional District Judge, Dharampuri, District Dhar by which the plaint has been returned under Order VII rule 10 of CPC while deciding the Issue No.8 as preliminary issue.
2. Facts of the case, in short, for disposal of this appeal are as under :-
(a) The appellant/plaintiff has filed the suit for specific performance, permanent injunction and damages against the respondent/defendant. As per the pleading in the plaint, the ICICI Bank, Indore has sold the agricultural land of Survey No.91/1/1 area 0.582 hectares, Survey No.91/1/2 area 0.292 hectares, Survey No.
91/1/3 area 0.292 hectares and Survey No.91/2 area 1.265 hectares; total 2.431 hectares of Village Guljhara, Dhamnod, Tehsil Dharampuri, District Dhar mortgaged as security to recover his secured debts on 22.2.2011. The defendant participated in the auction proceedings and was declared as successful bidder. The Bank has agreed to issue sale certificate in his favour for the above the land in total consideration of Rs.3.00 crores. Initially the defendant has deposited Rs.80.00 lacs with the bank and he was required to deposit the balance amount within the time given by the Bank.
(b) It is further pleaded that the defendant could not arrange the money to deposit the balance amount, therefore, he gave an offer to the plaintiff to become co-purchaser of the said land. Since the plaintiff and the defendant were having cordial relation and he was having faith on the defendant, therefore, he has accepted the offer and agreed to invest Rs.1.5 crores in the said transaction. The defendant firm has inducted the plaintiff as a Partner by way of partnership agreement dated 23.8.2012 and at that time the plaintiff has paid the amount of Rs.5.00 lacs vide Cheque No.003382 dated 22.8.2012. Thereafter, he has also paid the amount of Rs.70.00 lacs vide Cheque No.20359 dated 24.12.2012 and an agreement was executed between the plaintiff and the defendant on 11.12.2012. Thereafter, the plaintiff has paid the balance amount up to 21.12.2012 to the defendant.
(c) That by of the agreement dated 11.12.2012, it was agreed between them that they shall jointly pay the sale amount, taxes and other liabilities to the Bank and thereafter, bank shall issue sale certificate in the name of defendant Firm. It has further been agreed that they shall jointly develop the land and after approval by the Town and Country Planning, they would sale the plots and share the loss and profit in the ratio of 50 – 50%.
(d) The plaintiff has further pleaded in para 23 of the plaint that he heard certain whisper in the market that the defendant is getting the entire land transferred in his name from the Bank. When he tried to inquire from him, the defendant did not give the satisfactory reply, therefore, the plaintiff has apprehended that the intention of the defendant is not bona fide. Therefore, he gave a notice through his counsel on 14.7.2014. When the defendant did not give any satisfactory reply then plaintiff served him legal notice and thereafter filed the present suit in the month of September, 2014 seeking the relief of specific performance of agreements dated 23.8.2012 and 11.12.2012, permanent injunction and damages along with an application under Order XXXIX rules 1 and 2 of CPC for temporary injunction.
(e) The defendant filed the written statement as well as reply to the application under Order XXXIX rules 1 and 2 of CPC. In the written statement he has stated that he took the money as a loan from the plaintiff and he intent to return to him but he has unnecessary filed the suit with mala fide intention to harass him. He is ready and willing to refund the balance amount which he took as a loan from the plaintiff. The Bank
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