INDIABULLS HOUSING FINANCE LTD Vs. UMA MAHESWARI

JUDGEMENT

(1.) THE fourth defendant in the above suit has filed the present Application to reject the plaint.

(2.) THE respondent / plaintiff filed the suit C.S.No.712 of 2013 praying this Court for the following relief: -

(3.) THE case of the respondent/plaintiff in brief is as follows: - (a) The plaintiff is the owner of the suit property and she has been living permanently in USA with her husband since 2005. She executed a Power of Attorney dated 17.02.2009 in favour of her father -in -law to take care of the suit property. The first defendant in the suit is her cousin brother, namely, father's brother's son. The second defendant is the wife of the first defendant and the third defendant is a Company promoted by the first defendant and the first defendant is its Managing Director. The first defendant is a Chartered Accountant and had taken care of the financial affairs of the entire family and confidence was reposed on him by the plaintiff and by all of the family members. Considering the close family relationship with the first defendant and on account of the faith and confidence reposed on him and the fact that he is a qualified Chartered Accountant and the plaintiff has been living abroad, the plaintiff entrusted the original documents of the suit property to the first defendant with the fond hope that he would keep them in safe custody. (b) While so, in June 2009, a Court summons was served upon her father -in -law/power of attorney by DRT ­ 1, Chennai and power of attorney of the plaintiff came to know that the defendants 1 to 3 filed S.A.No.131/2009 before the Debts Recovery Tribunal, Chennai challenging the possession notice dated 19.12.2008 issued by the applicant /fourth defendant under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, "SARFAESI ACT"). The respondent / plaintiff, thereafter, took steps to procure relevant papers from the first defendant but the first defendant and the defendants 2 and 3 did not co -operate. Therefore, the plaintiff got certified copy of all the documents filed before the DRT, Chennai, by filing an application and on perusal of the documents, the plaintiff was shocked and surprised to note that the first defendant played huge fraud by committing impersonation, forgery and cheating and obtained loan from the fourth defendant/applicant herein by creating an equitable mortgage by depositing the title deeds of the suit property belonging to the plaintiff as if the plaintiff is the co -applicant and stood as guarantor for the loan taken by him. It is seen from the documents that the plaintiff along with the defendants 2 and 3 availed loan of Rs.74,00,000/ - in LAN No.HECHMN11025 and another loan of Rs.76,00,000/ - in LAN No.HECHMN11030 during December 2006 from the fourth defendant. For that purpose, the first defendant entered into two separate loan agreements both dated 29.11.2006 with the fourth defendant/applicant herein and the plaintiff's signature was forged in the aforesaid documents. Even in the loan sanction letter, the plaintiff's signature was forged. Thus, the first defendant managed to show the name of the plaintiff as co -applicant in both the loan applications and with the active connivance of the fourth defendant, the signature of the plaintiff was forged in all the documents. As such, the property belonging to the plaintiff was given as security for the loan availed by the defendants 1 to 3. In November and December, 2006 when the first defendant availed the loan, the plaintiff was not in India and her passport endorsement would prove the same. Therefore, the applicant was hand in glove in the entire conspiracy and by committing fraud and without the presence of the plaintiff during the relevant period of time, huge loan was sanctioned to the first defendant. Since the plaintiff was shown as co -applicant and guarantor for the settlement of the said loan, the applicant/fourth defendant issued demand notice under Section 13 (2) of the SARFAESI Act dated 30.10.2007 and 27.11.2007, for both the loans, separately, wherein the address of the plaintiff was shown as ­ (1) No.3 -B, Door No.258, 2 Block, 6th Street, Annanagar, Chennai ­ 600040; (2) Plot No.490, K Block, K -81, 1st Floor, 14th Street, Anna Nagar East, II Main Road, Chennai ­ 600 102; and (3) X -41, Sivaganga Complex, 2nd Avenue, Anna Nagar, Chennai ­ 600040. Notice issued under Section 13 (2) of the SARFAESI Act was received and managed by the second defendant on behalf of the plaintiff in connivance with first defendant and fourth defendant. The plaintiff is living abroad and in the first address mentioned above, the plaintiff's father was living and the second address is the residential address of the first and second defendants and third address is the address of the company. These facts would clearly show that the fourth defendant in connivance of the defendants 2 and 3 manoeuvred to send Section 13(2) Notice to the plaintiff by giving address of the defendants 1 to 3 and all these facts would prove that not only during the time of sanction of loan but also at the time of issuing Notice under Section 13(2) of the SARFAESI Act, fraud was committed.