HIRA NAND LALL Vs. SANTOSH KUMAR BADHWANI

JUDGEMENT

(1.) I have heard Mr. S.K. Das, learned Counsel for the appellant and Mr. Mahesh Narayan Parbat, learned Counsel for respondent No. 4/Punjab National Bank. None appeared on behalf of defendant /respondent No. 1 whereas respondent No. 1 had already entered appearance through his Counsel. Other respondents despite valid service of notice have preferred not to appear in this case. The present appeal under Order 43 Rule 1(r) of the Code of Civil Procedure has been preferred against an order dated 21.1.2010 passed in Title (Partition) Suit No. 39 of 2008 passed by learned Sub-Judge I, Katihar. By the said order the learned Court below has been pleased to reject the petition filed on behalf of the plaintiff/appellant under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of injunction. The plaintiff/appellant has filed Title (Partition) Suit No. 39 of 2008 in respect of land pertaining to M.S. Plot No. 2128 Ka, Kha under M.S. Khata No. 205 measuring 06 acres 20 points and also M.S. Plot No. 128 Ka/P under M.S. Khata No. 205 measuring 80 points, situated within Mauza Sairganj, Tauzi No. 1239, Thana No. 103 and also Plot No. 126/P under Khata No. 146 measuring 0.85 Airs, Ward No. 19 under Katihar Municipality. Over the said land a double storied building is standing which includes latrine, bath room, drains, garage, courtyard, compound wall, etc. The plaintiff/appellant has filed the partition suit on the plea that the suit properties are ancestral properties. Since the defendant No. 1 was intending to transfer the suit property the plaintiff/appellant before the Court below had earlier filed a petition for injunction for restraining defendant/respondent No. 1 from transferring the suit property.

(2.) Initially in Title (Partition) Suit No. 39 of 2008, three persons were impleaded as defendants including defendant/respondent No. 1. It is further evident that to the injunction petition the defendant No. 1 to 3 though had filed objection but no serious objection was raised, and accordingly, the learned Court below vide the order dated 20.5.2008 allowed the injunction petition and restrained the defendant No. 1 to 3 from disposing/transferring the suit property. Subsequently, as pleaded on behalf of the plaintiff/appellant the appellant came to know that defendant/respondent No. 1 had mortgaged joint ancestral suit properties of the plaintiff and other co-sharer without any partition of the same in favour of Punjab National Bank, Katihar (hereinafter referred to as the 'Bank') and obtained O.D. loan facility and housing loan facility to the tune of Rs. 20 lakh. The defendant No. 3 had defaulted and thereafter the Bank issued sale notice dated 6.7.2007 in the news paper in respect of entire suit properties. Against the said notice the defendant/respondent No. 1 preferred an appeal under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act') before the Debts Recovery Tribunal, Bihar, Patna (hereinafter referred to as the 'Tribunal') vide S.A. No. 15 of 2007. The plaintiff/appellant intervened in S.A. No. 15 of 2007 before the Tribunal and filed intervention petition for being impleaded as party on the plea that he was having share in the mortgaged properties and he also filed suit for partition of his legal share vide Title (Partition) Suit No. 39 of 2008. It has further been pleaded that the learned Tribunal vide its order dated 31.7.2009 dismissed the intervention petition of the plaintiff/appellant and also dismissed the appeal i.e. S.A. No. 15 of 2007 which was filed by defendant/respondent No. 1 on the plea that the mortgaged properties were joint properties. The plaintiff in Title (Partition) Suit No. 39 of 2008 had prayed for injuncting the Punjab National Bank/respondent No. 4 (secured creditor) from proceeding with the notice published by the Bank. The injunction petition filed by the plaintiff/appellant was dismissed vide the impugned order on 21.1.2010.

(3.) Mr. S.K. Das, learned Counsel for the appellant has argued that the suit land was purchased from the joint proceed by the father of plaintiff/appellant in the name of the defendant/ respondent No. 1 who is full brother of the plaintiff/appellant. The said purchase was made in the year 1974. According to learned Counsel for the appellant at the time of said purchase the defendant /respondent No. 1 was a minor and in the year 1975 father of the appellant got the map for construction of building sanctioned from the Municipality and subsequently in the year 1997 by family arrangement partition had already taken place and thereafter the plaintiff/appellant had let out portion of the building which had fallen in his share with the Income Tax Department. The father of the plaintiff/appellant died in the year 1998. Thereafter, the plaintiff/appellant filed a Title (Partition) Suit vide 39 of 2008 and since the defendant No. 1 was intending to transfer/dispose of the suit property he filed an injunction petition which was allowed by the Court below on 20.5.2008 and defendant Nos. 1 to 3 were restrained from transferring the suit property. Subsequently, Punjab National Bank as well as two sisters of the plaintiff/appellant were impleaded as defendants. Punjab National Bank was impleaded as defendant No. 4 in the suit. It has been argued that the defendant No. 1 had obtained total amount of loan of Rs. 20 lakh from the Bank i.e. respondent No. 4, after mortgaging the suit property and on default the Bank had initiated steps under the SARFAESI Act. It has been admitted by learned Counsel for the appellant that against the notice issued under Section 13 of the SARFAESI Act the defendant No. 1 /respondent No. 1 who had mortgaged the suit property had filed an appeal under Section 17 of the SARFAESI Act in which the plaintiff/appellant had filed a petition for intervention for being impleaded as party in the appeal on the ground that the properties which were noticed for sale was in joint possession. However, intervention application as well as appeal was dismissed by the Tribunal vide its order dated 31.7.2009. It has further been admitted by learned Counsel for the appellant that respondent No. 4/ Punjab National Bank in the year 2009 had come out with a publication in Hindi news paper namely Hindustan published on 12th September, 2009 whereby Bank had invited tender for auction of different properties including the suit property and as such the plaintiff approached this Court by invoking its writ jurisdiction vide CWJC No. 12776 of 2009. On 8.10.2009 after some argument the writ petition was withdrawn with liberty to assail the sale notice dated 7.9.2009 in the Civil Court in Title Suit No. 39 of 2008. The writ petition was disposed of granting liberty to file petition with observation for disposing of the application for assailing the sale notice expeditiously after hearing the Bank. Finally vide the impugned order the learned Court below has rejected the injunction petition filed by the plaintiff/ appellant against the notice for auction of the suit property.