MADAN LAL Vs. RAJENDRA KUMAR AND ORS.

JUDGEMENT

(1.) THIS writ petition has been filed by defendant petitioner - Madan Lal assailing the order dated 4/8/2012 passed by Additional District Judge No. 5, Kota by which his application for taking counter -claim on record has been dismissed with cost of Rs. 200/ -. Respondent No. 1 filed a suit alleging therein that a shop and house admeasuring 60 x 15 = 300 square feet owned by petitioner situated in Village Naya Nohara, Tehsil Ladpura, District Kota, was purchased by him from Chittar Lal. Petitioner obtained loan from Oriental Bank of Commerce - respondent No. 2 by hypothecating the shop and the house with the said bank and respondent No. 1 stood surety for the petitioner. Petitioner however could pay only 4 -5 installments and did not pay the remaining installments. He sold the said house to respondent No. 1 by holding out that he has repaid the entire housing loan of the bank and the property is free from all encumbrances. Relying on the statement of petitioner, respondent No. 1 purchased the property for sale consideration of Rs. 3,00,000/ - in cash in presence of Nathu Lal, Raju, Ram Ratan, Chittar Lal and Banwari. An agreement to sell was executed between plaintiff and defendant and defendant -petitioner handed over all the documents of the property to plaintiff -respondent No. 1. Respondent No. 1 always remained willing and ready for getting the sale -deed executed but it was not executed by the petitioner. It was thereafter that plaintiff -respondent No. 1 came to know that defendant -petitioner has not repaid the loan and has got agreement to sell executed by concealing this fact. Plaintiff -respondent No. 1 sent a legal notice to the defendant -petitioner on 4/1/2003. It was further pleaded in the plaint that respondent No. 1 is a bonafide purchaser for sale consideration aforesaid and there is every possibility that respondents No. 2 and 3 -banks will recover the outstanding amount of the housing loan against petitioner by attaching and selling the aforesaid property. Plaintiff served a notice on 16/4/2003 to respondent No. 2 -bank mentioning therein that defendant has given Account No. 147A of respondent No. 3 - Canara Bank in the name of Priyanka Wood Works, of which he is proprietor having balance of Rs. 4,00,000/ - in that account. He had a plot near Khade Ganesh Ji in Kota, pakka house in village Naya Nohara and another plot in Borekhefa, Kota and respondent No. 2 may satisfy those demands from such properties. Respondent No. 2 -bank however did not recover the amount from the aforesaid properties of the petitioner but sent the officers on 5/8/2003 threatening plaintiff -respondent No. 1 either to deposit the outstanding amount or ask the defendant -petitioner to deposit the same. Defendant -petitioner requested the plaintiff -respondent to execute the sale -deed but he declined to do so on the ground that he is in judicial custody. Prayer therefore was made that the decree for specific performance of the agreement be passed against the defendant -petitioner and the respondent -banks be restrained by way permanent injunction from attaching and auctioning the aforesaid house.

(2.) DEFENDANT -petitioner submitted written statement pleading therein that since he was also in judicial custody therefore delay occurred in filing counter claim. It was further pleaded that he did not agree to sale the said house to the plaintiff. He could not have done so because those properties were hypothecated with respondent No. 2 - Oriental Bank of Commerce. Plaintiff -respondent No. 1 stood guarantor of petitioner in the housing loan. Plaintiff requested defendant to sign some stamp papers for guarantee in another matter. Defendant believing him signed some blank stamp papers on which forged agreement to sell was prepared by the plaintiff. According to the market value, the house has value of Rs. 20,00,000/ - lacs on which Oriental Bank of Commerce advanced housing loan as well as overdraft relief of Rs. 2,00,000/ -. When petitioner got registry of the house and land attached to it admeasuring 60 x 50 square feet, the same was valued at Rs. 30,00,000/ - by the Sub - Registrar and registration stamps and fee of Rs. 1.5 lacs were obtained. Therefore the plea of the plaintiff -respondent of selling the said house and shop by the defendant -petitioner to him for sale consideration of Rs. 3,00,000/ - is incorrect. The agreement to sell being forged, plaintiff was not entitled to any decree of specific performance. The defendant was carrying his business in the name & style of "Priyanka Wood Works". Plaintiff is his cousin, being son of his aunt i.e. sister of his father. He stood his guarantee. They always have had cordial relations but subsequently, intentions of plaintiff became bad. He prepared forged agreement to sell on blank stamp papers signed by petitioner and got registered a false criminal case against petitioner for the offence of rape against wife of his brother and got the petitioner arrested. When the defendant was got released from judicial custody, a written statement was filed on 25/3/2004 and he told the facts of the case to his advocate. However, complete facts could not be brought on record for want of documents. It was in the background of the aforementioned facts that on 28/4/2011, an application along with counter claim was filed under Order 8 Rule 6A CPC with the prayer that the same be taken on record. It was contended that the counter -claim could not be incorporated in the written -statement because the defendant was in judicial custody. Plaintiff took possession of the house from respondent No. 3 while petitioner was in judicial custody. By way of counter -claim, it was prayed that possession of the house and shop be restored back to the defendant and plaintiff may be directed to pay Rs. 20,000/ - per month as mesne profit/occupation charges for illegal possession of the house.

(3.) I have heard Shri Satish Chandra Mittal, learned counsel for the defendant -petitioner and perused the material on record.