RAKESH MADAN Vs. RAJASTHAN FINANCIAL CORPORATION

JUDGEMENT

(1.) BY this order, I shall dispose of the application under Order 39 Rule 1 and 2 of CPC preferred by the plaintiff whereby the plaintiff has sought injunction against defendants, their agents from interfering in any manner in the possession and ownership of the plaintiffs property bearing number 152, jagriti Enclave and also sought injunction restraining them from selling, alienating or creating any third party interest in the property in question.

(2.) IT is claimed by the plaintiff that father of the plaintiff late Shri. Deshraj Madan was the owner of the above property. Deshraj Madan lived in this property with the plaintiff during his lifetime. Deshraj Madan died on 19th december 2001. On death of Deshraj Madan, plaintiffs No. 1 and 2 became co-owners of the property to the extent of 1/3rd share each. In March 2003, plaintiff No. 1 came across a notice dated 26th February 2003 issued by defendant No. 1 addressed to defendant No. 3 namely M/s Puneet Strips Pvt. Ltd wherein it was alleged that a loan of Rs. 516 lac was granted to defendant No. 3 by defendant No. 1 i. e. Rajasthan Financial Corporation and by a mortgaged deed executed in favour of defendant No. 3, the property in question was mortgaged to defendant No. 1. The plaintiff replied to the aforesaid notice and intimated to defendant No. 1 that deshraj Madan was not the director of defendant No. 3 and Mr. Deshraj Madan expired on 19th December 2001. Thereafter, defendant No. 1 did not proceed against the property but after a lapse of about 5 years again a notice dated 1st february 2008 was issued by defendant No. 1 to plaintiff and defendant No. 2 as lrs of Deshraj Madan and it was stated in the notice that a loan of Rs. 516 lac was granted to defendant No. 3 company and Deshraj Madan had stood guarantor to secure the loan. The property in question was mortgaged by Desh Raj Madan as security to the loan. If the due amount was not paid by 20th February 2008, defendant No. 1 would initiate proceedings under section 29 and 31 of the State financial Corporation Act (for short, the "sfc Act") and would take possession of the property in occupation of plaintiff No. 1. It is pleaded by plaintiff No. 1 that the stand of defendant No. 1 about mortgage of this property was false. Mr. Deshraj Madan had not executed a mortgaged deed, as alleged, on 15. 6. 01 since deshraj Madan was not having sound disposing mind in June 2001 and he was physically handicapped. He had suffered a paralytic attack in April 1999 and was continuously undergoing treatments for the paralytic attack but could not recover from it. In view of his health condition, he could not have executed the mortgage deed in June, 2001. There seemed to be some conspiracy between the officers of defendant No. 1 and defendant No. 2, brother of plaintiff, and it seemed that the officials of defendant No. 1 forged and fabricated the documents and deeds in respect of mortgage of the property for actuating a forgery and cheating on the plaintiffs. Since defendant No. 1 had claimed that original title deeds of the property were in its possession, the plaintiff pleaded that it appears that defendant No. 2 in collusion and conspiracy with official of defendant No. 1 had stolen or taken away the original conveyance deed of the property, taking advantage of bad mental and physical condition of Mr. Desh Raj madan. It is further submitted that the claim of defendant No. 1 was time barred and was not enforceable against the plaintiff or their properties and defendant no. 1 cannot give notice under Section 29 and 31 (1) of SFC Act to the plaintiff. Thus, this Court should issue injunction as prayed for by the plaintiffs.

(3.) IN the written statement, defendant No. 1 has stated that the suit of the plaintiff on the face of it was barred by limitation and was instituted without a cause of action and was not maintainable. The suit was filed by the plaintiff in connivance with defendant No. 2 to stall somehow the recovery of public funds. The suit was not verified in accordance with law. On facts, it is submitted that on the application of M/s Puneet Strips Pvt. Ltd the defendant no. 1 had sanctioned two loans in its favour on 16th February 1998 and 10th May 2001 for Rs. 2. 4 crore and Rs. 2. 76 crore respectively. The loan documents were signed by defendant No. 2 and Smt. Neena Madan, directors of defendant No. 3. The loan documents comprised of loan agreement, declaration and an undertaking. The guarantee deed dated 19th June 1999 and 15th June 2001 in respect of first and second loans were also executed. All the lands, building, plant and machinery of defendant No. 3 at Bhiwadi was mortgaged in favour of defendant No. 1 by depositing the title deeds. In addition, Mr. Desh Raj Madan, father of defendant no. 2 also stood guarantor for repayment of the loan and mortgaged his property bearing No. 152 Jagriti Enclave in favour of defendant" No. 1 by depositing the original title deeds. He deposited the original conveyance deed dated 11th august 2000 of property bearing No. 152, Jagriti Enclave, agreement to sell dated 16th February 1996 between Gulshan Nagpal and Mr. Desh Raj Madan, registered GPA dated 16th February 1996 executed by Gulshan Nagpal in favour of Rakesh Kumar i. e. Plaintiff, with the answering defendant. He also executed guarantee deed, declaration, undertaking, power of attorney etc. , all dated 15th June 2001 personally at Bhiwari. It is submitted that the loan taken by defendant No. 3 was not repaid and assets of defendant No. 3 namely land, building, plant and machinery at Bhiwari were taken over by defendant No. 1 in February and March 2006 in exercise of powers under Sections 29 and 30 of SFC Act. However, only an amount of Rs. 2,31,30,000/- could be recovered by sale of these assets and a balance amount of Rs. 2,28,17,362/- still remained unpaid as on 8th March 2006. After accumulation of interest, the due amount has became Rs. 3,13,26,701/- which was liable to be recovered by sale of the mortgaged property. All allegations regarding collusion between defendant No. 2 and officials of defendant No. 1 are denied. It is also denied that Mr. Desh Raj Madan was in ill health or was not in a position to execute the documents.