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2013 Supreme(MP) 190
HIGH COURT OF MADHYA PRADESH
S.K. Gangele and G.D. Saxena, JJ.
Ashok Kumar Jain and others v. Punjab & Sindh Bank and others
First Appeal No.348 of 2011 (Gwalior) : against the judgment and decree of trial Court, passed in Civil Suit No.2-A of 2010;
Decided on 3.4.2013.
N.K. Gupta for appellants;
Anand Bharadwaj for respondent No.3.
Headnote:(1) Court-fees Act, 1870 -- S.7(iv)(c) -- suit for declaration and permanent injunction collusive -- plaintiff liable to pay the court-fees in accordance with valuation of the suit.
Held : In the present case the appellants-plaintiffs sought the declaration of their share in joint Hindu family property and further declaration and other consequential relies. The appellants have made the persons as defendants who had taken the loan on behalf of the firm. The aforesaid defendants accepted the pleadings. It means that the suit is collusive one. It is also a fact that a writ petition was filed, thereafter a writ appeal was filed that was also dismissed. In spite of that, plaintiffs persuaded their remedy before the civil Court. It means that the plaintiffs instituted collusive proceedings with the collusion of defendants No.13, 14 and 15 to obtain a favourable decree and object was to declare the equitable mortgage as illegal and also declare the sale-deed executed by the bank in favour of auction purchaser as void and also recover the possession of the suit property.
In such circumstances, in our opinion, the trial Court has rightly held that the plaintiffs have to pay the court-fees in accordance with valuation of the suit and the plaintiffs have also to pay the court-fees accordingly in appeal also. AIR 1973 SC 2384 followed. 1970 JLJ 290 (FB) relied on. 2011(1) JLJ 71 and (2010)12 SCC 112 distinguished.
(2) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- S.34 -- lack of jurisdiction to entertain the suit -- Court bound not to pronounce the judgment on other issues about the merits of the case. [Para 9
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Gangele, J. -- 1. Plaintiffs-appellants have filed this appeal against the judgment and decree dated 23.9.2011 passed by the trial Court in Civil Suit No.2-A/2010.
2. The plaintiffs filed a suit for declaration and permanent injunction. They pleaded that there was joint Hindu family property of Nathulal, Pyarelal and Kashiram. There was a firm in the name of “Lalaram Nathuram” and the aforesaid firm purchased a land by a registered sale-deed dated 23.8.1940 area 134 ft. x 200 ft. situate at Mouja Dabra, Pargana Pichhor, District Gwalior. Another land was also purchased on 14.12.1948 area 15 yard and 25 yard. After the death of Pyarelal and Kashiram their legal heirs became owners of half of the property. Plaintiffs are the owners of the half of the property and defendants No.10 to 15 are owners of the half property. Padamchand Jain, defendant No.15 had taken a cash credit limit of Rs.7 lacs from defendant No.1, a Nationalized Bank and for the purpose of security of the loan Subhashchand Jain stood as surety and created equitable mortgage of the property. However, the defendants No.13 to 15 had no power and authority to create equitable mortgage of the property with the defendant No.1 because it was a joint Hindu family property.
3. Defendant No.1 initiated proceedings for recovery of loan under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter shall be referred to as SARFAESI Act) and published a notice in the newspaper on 23.8.2009 for auction of the property. Then the plaintiffs filed a petition before the High Court, which was registered as Writ Petition No.4466/2009. The aforesaid writ petition was disposed of as infructuous in view of the earlier order passed in Writ Petition No.3282/2009, which was filed by defendant No.13 Vijay Kumar Jain and the said petition was disposed of with the observation that defendant No.13 can submit a dispute before the Debt Recovery Tribunal and consequently, the defendants No.12 and 13 filed a dispute before the Debt Recovery Tribunal, Jabalpur, which was pending as Second Appeal No.4/2010. It is further pleaded that in accordance with the auction notice, auction proceedings were held and bank had sold the property a land area 18000 sq.ft. in favour of defendant No.2. A sale certificate was also issued in favour of defendant No.2. The plaintiffs sought a declaration that the aforesaid sale certificate be also declared null and void.
4. The defendant No.1 in its written statement pleaded that Padamchand Jain, owner of the firm “Anil Kumar Padamchand Jain” received a cash credit limit of Rs.7 lacs from the Bank and consequently an equitable mortgage deed was executed by defendants No.12 Prakashchand Jain and No.13 Vijay Kumar Jain and surety was tendered. When the amount was not paid, the Bank declared the account as non-performing account and initiated proceedings against the defendant firm under the provisions of SARFAESI Act and bank had also taken possession of the property. Thereafter, the sell proclamation was issued in the newspaper and auction of the property was conducted. Defendant No.2 tendered his highest bid. Consequently, a sale certificate of the land area 18000 sq.ft. was issued in favour of defendant No.2 and registered sale-deed was also executed on 11.1.2010. Defendant No.1 had also taken an objection that the civil Court had no jurisdiction to entertain the suit. It was also pleaded that the writ petition was also filed before the High Court which was registered as Writ Petition No.3282/2009 and High Court vide order dated 8.12.2009 passed in writ petition directed the petitioner Vijay Kumar Jain to approach Debt Recovery Tribunal. Against the aforesaid order, a writ appeal was filed and the Division Bench affirmed the order passed by the writ Court.
5. Trial Court framed 16 issues and held that the Court has no jurisdiction to entertain the suit in accordance with section 34 of the Act
