KAMAL GUPTA Vs. UMA GUPTA

JUDGEMENT

(1.) The plaintiff has filed a suit for declaration and injunction in respect of the property bearing No. F-9, Hauz Khas Enclave, New Delhi. The plaintiff claims to be a joint owner of the said property to the extent of one- half share with defendant No. 1. The plaintiff is stated to be medical practitioner settled in United Kingdom for the last several years. The plaintiff and defendant No. 1 are stated to have purchased the property in question in pursuance to five Sale Deeds from the Vendors in respect of one-fifth undivided share each. The sale consideration was paid both by the plaintiff and defendant No. 1. In 1988, on one of the visits of the plaintiff to India, defendant No. 1 mentioned about certain financial matters to him and the plaintiff offered to execute a Relinquishment Deed of his share in the said property. The plaintiff informed defendant No. 1 vide communication dated 16.03.1989. The said letter records that the plaintiff had executed a Deed of Relinquishment dated 20.12.1988. It is stated that this letter was replied to by defendant No. 1 vide communication dated 03.04.1989 expressing her inability to accept the relinquishment or gift as she was not in a position to revoke the Relinquishment Deed. It is, thus, stated that the Relinquishment Deed was never acted upon.

(2.) The real dispute actually is that in the year 1992, defendant No. 2 Company availed of certain credit and financial facilities from Oriental Bank of Commerce, defendant No. 3 herein. In 1993, the Bank required additional collateral securities and the Bank suggested that Smt. Uma Gupta, defendant No. 1 being the wife of the promoter Shri R.K. Gupta, the plaintiff should furnish a personal guarantee by way of equitable mortgage of the property. The plaintiff claims that he had nothing to do with the business of defendant No. 2, but he agreed to sign the documents. The plaintiff goes on to state that the plaintiff, not being based in Delhi, tried to convince the bankers as well as defendant No. 2 Company to convey to the Bank that the guarantee of the plaintiff was only limited to his own share in the property and that he should be released from the personal guarantee. Defendant No. 3 Bank is stated to have waived the personal guarantee of the plaintiff vide communication dated 08.10.1998 and, thus, the restricted guarantee in respect of share of the property also stood waive.

(3.) It is in view of the aforesaid situation that a decree for declaration is sought in respect of the half share of the property that it vests with the plaintiff and that no valid Relinquishment Deed was executed and a permanent injunction from disturbing the ownership of the plaintiff. The defendants have opposed the suit. Defendant No. 1 has also filed the Written Statement disputing the claim of the plaintiff to the half-share and has relied upon the Relinquishment Deed dated 20.12.1988. There has been vigorous contest by the Bank by filing Written Statement and the case set out is that in view of the said Relinquishment Deed, it was assumed that the plaintiff would have no right or interest in the property and only the personal guarantee of the plaintiff was released and not the mortgage created in respect of the property in question. The Relinquishment Deed is stated to have been duly registered on 22.12.1988 and till the filing of the suit, the same has not been revoked by any registered Deed or challenge in any court of law. The communication between the plaintiff and defendant No. 1 of 1989 is stated to be manufactured. The suit is alleged to be collusive on account of the fact that the Bank has filed the claim for recovery of Rs.35,89,81,794.34 against defendant No. 2 in which defendant No. 1 is also a party as one of the mortgager. The property is, thus, liable to be sold for recovery of the dues of the Bank.