ASHOK KUMAR SUBBA Vs. KAMAL KUMARI SUBBA

JUDGEMENT

(1.) P1. The Appellant herein filed a Suit before the Learned Trial Court being Title Suit No.33 of 2014, claiming to be the owner of four and half storeys of a five storied building, standing on two contiguous plots of land in Gangtok, East Sikkim. That, the suit premises were acquired by him in the name of his wife in the year 2005, having obtained Bank loan in his wife's name and paid the consideration amount of Rs.90,00,000.00 (Rupees ninety lakhs) only. He stood as Guarantor for the loan in terms of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Being in the business of lottery, he repaid a sum of 45,88,461/- (Rupees forty five lakhs, eighty eight thousand, four hundred and sixty one) only, to the Bank from his own resources, but an amount of Rs.64,71,000.00 (Rupees sixty four lakhs and seventy one thousand) only, was not disbursed by the lender Bank leading to acute financial crisis for the Appellant. Consequently, both he and the Respondent No.1, his wife, decided to dispose of the suit premises to the Respondent No.2 at a consideration value of Rs.3,00,00,000.00 (Rupees three crores) only, vide an Agreement dtd. 18/4/2013. That, both Respondent No.1 and Respondent No.2 colluded and coerced him into signing a "No Objection Certificate" (NOC) to sell the property, assuring him that the excess of the sale proceeds after payment of loan would be made over to him. A total amount of Rs.1,10,00,000.00 (Rupees one crore and ten lakhs) only, was paid by the Respondent No.2, on his behalf, to liquidate the loan account as a one time settlement. He averred that the Agreement for Sale is void since properties of a tribal to which community he belongs, cannot be transferred to Respondent No.2, a non-tribal. In order to prevent registration of the suit premises in the name of Respondent No.2 the Appellant issued a Notice under Sec. 80 of the Code of Civil Procedure, 1908 (CPC). The Plaint was accompanied by an application under Order XXXIX Rules 1 and 2 of the CPC wherein the Appellant inter alia averred that he had signed on the NOC but having come to learn that the transaction between Respondent No.1 and Respondent No.2 was illegal he withdrew it. That, Respondent No.1 in fact had no Stridhan to purchase the properties. Hence, the prayers in the Plaint inter alia seeking a declaration that the NOC was void ab initio; that the Respondent No.1 had no right, title and interest in the suit premises and transfer of the properties to the Respondent No.2 would be illegal, void and inoperative being in contravention to the Prohibition of Benami Property Transactions Act, 1988.

(2.) In her written statement the Respondent No.1 claimed to be from a reputed family besides which she was a 50% partner in the lottery business along with the Appellant as also in his business venture in Nepal. While denying and disputing the averments of the Appellant regarding ownership of the property she claimed to be the sole owner of the suit premises having purchased the contiguous plots in 1988 from two different sellers with her Stridhan. After purchase she constructed a multi-storied building on the said plots of land. In the year 2005, she availed of a loan of Rs.90,00,000.00 (Rupees ninety lakhs) only, from the United Bank of India, for renovation of the building as the sole borrower and the Appellant stood as a Guarantor. That, in 2011, on account of several reminders from the Bank for non-repayment of loan she through her son made a request to the Respondent No.2 who helped her repay the loan amount, thus the Suit having no basis be dismissed with exemplary costs.

(3.) The Respondent No.2 in his written statement denied and disputed the Suit of the Appellant as being based on falsity and concealment of facts. That, in fact, he and the Respondent No.1 had executed a Money Receipt/Agreement of Sale, whereby he agreed to purchase the suit premises for a consideration of Rs.3,00,00,000.00 (Rupees three crores) only, of which part payment of Rs.1,10,00,000.00 (Rupees one crore and ten lakhs) only, was made for liquidation of the Bank loan of Respondent No.1. That, they had never entered into an Agreement with the Appellant nor promised to pay him the remnants of the sale amount after deduction of loan amount. That, claim of execution of an NOC was fictitious, hence the Appellant's Suit be dismissed.