CENTRAL BANK OF INDIA Vs. ALOKE GOENKA

JUDGEMENT

(1.) This revision arose out of order No. 41 dated 18.12.12 passed by the learned Civil Judge (Sr. Div:), 1st Court, Alipore in T.S. No. 51/09. The short background is that the petitioner is the third defendant in T.S. No. 51/09. The petitioner carried on business as a nationalised bank. The petitioner extended credit facilities to its borrowers viz. Kali Internationals Pvt. Ltd. and Rajco Steel Enterprises which was secured by the Opposite Party No. 2 and 3 by creating mortgage in respect of immovable properties being Fiat. No. D and DI, 5th floor, Anant, 17/IE, Alipore Road, Kolkata-27. Against the said credit facilities granted, the petitioner has a claim of Rs. 77,18,77,615.87/- and Rs. 71,35,09,951.70/- respectively against the borrowers and the Opposite Party Nos. 2 and 3 i.e. the defendant Nos. 2 and 3 in the said suit who stood as guarantor and mortgagor to secure the said loan facilities.

(2.) Despite repeated demands the Opposite Party No. 2 and 3 failed to pay the installments as guarantors for the said credit facilities and in view of fraud being committed the account was classified as non performing assets. As the account of the Opposite Party/borrowers were classified as a non performing asset, the petitioner enforced rights under the provisions of Sarfaesi Act, 2002 and issued demand notice upon the borrowers and guarantors under Section 13(2) of the Sarfaesi Act, 2002 on 19.5.2009. The petitioner suddenly received a letter dated June, 27, 2009 where from for the first time the petitioner came to know that on June 26, 2009 an ex parte order of injunction was obtained by the Opposite Party No. 1 being the plaintiff in a suit being T.S. Suit No. 51/09 and by virtue of such ex parte order of injunction the petitioner could not proceed any further to recover its dues from the Opposite Parties and also could not take any steps against the suit property which is the secured assets being mortgaged with the petitioner.

(3.) The main contention of the Opposite Party No. 1 in the aforementioned suit was that the Opposite Party No. 1 having been inducted in the suit property, by the owners of the suit property, being the defendant No. 1 and 2 in the suit, in terms of a duly executed Agreement of Tenancy dated 28.4.2006 was entitled to protection against eviction therefrom by the said defendants and/or by the petitioner otherwise than by due process of law.