ELLORA MOHANTY Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) BEING aggrieved by the order dated 4.1.2014 passed by the learned Senior Civil Judge, 1st Court, Cuttack in I.A. No.608 of 2013 arising out of C.S.(I) No.685 of 2013 rejecting the application under Order 39 Rule 1 and 2 C.P.C., the Plaintiff before the learned lower court has preferred this appeal.

(2.) THE Respondent herein is the sole opposite party in the I.A. and arrayed as D.14 in the suit. The appellant has filed the suit praying, inter alia, for partition of the suit schedule property and a declaration that the equitable Mortgage Deed dated 29.3.2008 created in respect of the suit schedule land by her deceased father Tusarkanti Kanungo in favour of the Respondent -Bank is illegal, fraudulent and obtained by misrepresentation. It is pleaded that the common ancestor of Plaintiff -appellant and Defendant Nos.1 to 12, namely, Sachidananda Kanungo had acquired the suit property out of his own earning as well as from the income derived from his ancestral property. He died leaving behind the Plaintiff and D.1 to 12 as his heirs. Sachidananda had three daughters and one son who is father of the Plaintiff and D.2 and 3 and husband of D.1. After the death of his three sisters he, conniving with his eldest son (D.2) to obtain loan from the Respondent -Bank in order to carry on a partnership business in readymade garment in the name and style M/s. SATISFACTION (D.13) with one Naliniprava Das of Friends Colony, Cuttack, created equitable mortgage in respect of the suit schedule property behind the back of the other heirs of the common ancestor and obtained a loan of Rs.22.50 lakhs. When they failed to repay the loan in terms of the loan agreement, the Bank declared it as NPA and issued Demand Notice recalling the loan granted in favour of D.13 for which the Plaintiff's father was shown to be the guarantor and then proceeded under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the Act). The partners of D.13 approached this Court in W.P.(C) No.11446 of 2013 and have obtained an interim order on 17.6.2013 directing not to take any coercive measure against D.13 and the matter is still pending for final disposal. Apprehending that the Bank would take symbolic possession over the suit schedule premises to put it into public auction under the Act, the Plaintiff filed the suit.

(3.) IN the suit it is contended, inter alia, that the security interest created by the equitable mortgage in respect of the suit property which is joint family homestead cannot bind the Plaintiff and D.1 to 12 except Defendant No.2. Therefore, the Bank has no authority under law to proceed against the shares of plaintiff, D.1, and D.3 to 12 in the suit property.