MOHAMMED ARIF PASHA S/O MR ABDUL KAREEM Vs. KARNATAKA STATE FINANCIAL CORPORATION REP. BY ITS DEPUTY GENERAL MANAGER AND SMT. KAUSHY M. LAL W/O SRI S.M. MOHAN LAL

JUDGEMENT

(1.) REJECTION of Plaintiffs I.A. No. 9 under Order 14 Rule 5 Code of Civil Procedure, in O.S. No. 17255/06, by order dt. 10/1/2011 of the IV Addl. City Civil and Sessions Judge, Mayohall, Bangalore, to delete issue No. 2 and frame additional issue, has led to the filing of this petition.

(2.) THE Petitioner instituted O.S. No. 17255/06 for the following relief: Wherefore, the Plaintiff most respectfully prays that this Hon'ble Court be pleased to pass a judgment and decree of permanent injunction restraining the Defendant No. 1 from proceeding against the schedule property for realisation of the amount due by the Defendant No. 2. In the plaint it is asserted that the Petitioner's father purchased the suit schedule property from his mother, Smt. Majan Bi, under a sale deed dt. 21/2/1968. The father of the Plaintiff for family necessity, on 24/8/1979, sold the said property for a sale consideration of Rs. 8,000/ - in favour of the 2nd Respondent and on the very same day, entered into an agreement dt. 24/8/1979 with the 2nd Defendant/2nd Respondent to re -convey the schedule property for Rs. 8,000/ -. When the 2nd Respondent failed to execute the sale deed within the time stipulated, the Petitioner's father instituted O.S. No. 10087/88 before the III Addl. Civil Judge, Mayohall Unit, Bangalore, for specific performance of the agreement, which was allowed by judgment and decree dt. 30/7/1994 directing the 2nd Respondent to execute a registered sale deed. Failure to comply with the judgment and decree, led to filing an execution petition, whence the executing court executed the sale deed conveying the suit schedule property. It is the further assertion in the plaint that the 1st Respondent, Karnataka State Financial Corporation, for short KSFC, affixed a notice dt. 17/9/2005 stating that M/s. Electro Mechanical Enterprises, belonging to the 2nd Respondent was due Rs. 65,23,856/ - and had invoked the powers under Section 29 of the Karnataka State Financial Corporation Act, 1951, to take over constructive symbolic possession of the schedule property as security by the 2nd Respondent. The Petitioner claiming to be ignorant of the transactions entered into between the 1st and 2nd Defendants over the suit schedule properties caused notice to the parties, whereafter the 1st Respondent is said to have caused a public notice on 10/11/06 in Deccan Herald for sale of the suit schedule property for realisation of the amounts due to the 2nd Respondent. The Petitioner alleging that the 2nd Respondent committed a fraud by offering the schedule property as security to 1st Respondent to raise a loan, presented the suit for the relief noticed supra.

(3.) IN the affidavit accompanying the application, it is stated that the 1st Defendant, KSFC, entered appearance, filed its written statement and reiterated the plaint averments and that in view of the defence of the 1st Respondent that a mortgage was created by the 2nd Respondent in its favour in respect of the suit schedule property, the alleged transaction between the parties hit by the principles of Us pendens, the mortgage is not valid and no right, title or interest subsists in favour of the 2nd Respondent during the pendency of O.S. No. 10087/88 and further that the 2nd Respondent has played a fraud on the Petitioner. It is in the premise of these pleadings, the Petitioner sought deletion of Issue No. 2 and to recast the same.