RAKESH KUMAR Vs. SAROJ MARWAH

JUDGEMENT

(1.) The present suit is filed by the plaintiff seeking a decree of declaration and mandatory injunction. The plaintiff is stated to have purchased the suit property from defendant No.1 vide sale deed dated 19.05.2009. The property in question is half undivided share in property bearing No.51/4-B, Desh Bandhu Gupta Road, Karol Bagh, Delhi-110005 admeasuring 576.53. square yards. It is urged that symbolic possession was handed over to the plaintiff at the time of sale inasmuch as defendant No.2 Bank was a tenant in the suit property running its currency chest from the entire two and a half storied building. It is stated that the plaintiff rigorously followed up with defendant No.1 as despite being a tenant of the premises, defendant No.2 was paying no rent to the plaintiff. After rigorous follow up, defendant No.2 through its counsel sent a notice dated 17.07.2010 where it was pointed out that defendant No.1 in order to avail a term loan and cash credit facility from defendant No.2 has created equitable mortgage on the suit property by deposit of original title deeds. It was pointed out that defendant No.1 has availed a term loan of '1.65crores and cash credit facility of '6.9crores.

(2.) It is urged that after investigation what emerges is that there is a term loan on the suit property of '1.65crores. Further, M/s. Bitum Impex, proprietorship concern of Ms.Meenakshi Marwah, daughter-in-law of defendant No.1 has taken a cash credit facility of '3crores from defendant No.2. To secure the aforesaid credit facility, property has been mortgaged including the suit property by defendant No.1. The said facility has been enhanced to '6.90crores. The account of M/s Bitum Impex was declared as Non-Performing Asset. It is further pointed out that defendant No.2 has filed O.A.No.279/2010 before Debt Recovery Tribunal (DRT) and that defendant No.2 is claiming that the said debt which is now '7.25crores is secured to the said defendant No.2 by mortgage of seven different immovable properties including the present suit property.

(3.) The plaintiffs have urged that they are the absolute and lawful owners of the suit property and bona fide purchasers for consideration. It is averred that the plaintiffs apprehend that defendant No.2 might sell the suit property and cause irreparable damage to the plaintiffs. It is urged that before taking adverse steps to deprive the plaintiffs of their rights, defendant No.2 Bank would have to follow the principle of Marshalling as provided in Section 56 of the Transfer of property Act, namely, that for satisfaction of a debt, defendant No.2 is firstly required to sell 6 properties which stand mortgaged and only thereafter, in case despite sale of the said properties the debt is not extinguished, sell the suit property. Hence, the present suit is filed seeking a decree of declaration declaring the plaintiffs to be the lawful and absolute owners of the suit property and decree for mandatory injunction against defendants No.1 and 2 restraining them from alienating, selling the suit property. Other reliefs are also sought. The prayer clause reads as follows:-