1. This petition is preferred to challenge the order passed by learned Additional District Judge, Gandhinagar dated 15.6.2012 in Misc. Civil Appeal No. 156/2011, whereby it allowed the appeal of respondent No.2 – Bank of Baroda and set-aside the order of learned Principal Civil Judge, Dehgam passed in Regular Civil Suit No. 58/2006 on 15.6.2012 . Petitioner herein has averred to be the tenant of land bearing Plot No. 109 and 110 admeasuring 3950 sq.meters. Situated in GIDC, Dehgam, District Gandhinagar on monthly rent of Rs.12051/- for the period from 1.4.2006 to 31.3.2009 from late Shri Harishchandra Chimanlal Sainani . He is in possession of the suit premises as a tenant . He was carrying on the business in the name and style of Shree Rajlaxmi Wood Industries. Petitioner since was apprehending that the respondent Nos.1 and 2 may take away the possession of the suit premises from the petitioner in violation of the lease agreement, preferred Regular Civil Suit No. 58/2006 in the Court of learned Principal Civil Judge, Dehgam praying for declaration and permanent injunction.
An application for injunction preferred by this petition was allowed in his favour and therefore respondent NO.2 -Bank of Baroda, being aggrieved by such an order of grant of injunction, challenged the same by way of Misc.
Civil Appeal NO. 156/2011 .Learned Additional District Judge, Gandhinagar by its detailed order and reasonings quashed the order of trial Court and this has aggrieved the petitioner- original plaintiff and hence, the present petition under Article 227 of the Constitution.
2. This Court has heard at length learned Senior advocate Mr. Percy Kavina with Ld.advocate Mr. D.K.Puj appearing for the petitioner and learned Senior advocate Mr.Saurabh Soparkar with Mr.N.R.Parikh for the respondent No. 3. Learned advocate Mr.Balvantsingh appeared for the respondent No.2 -Bank. Both the sides have fervently and strenuously put forth their respective submissions in support of their rival claims.
3. Before adverting to the reasonings, it would be necessary to narrate the dispute between the parties dialating the facts. The suit premises is claimed by the petitioner as a tenant on monthly rent of Rs. 12051/- for the period from 1.4.2006 to 31.3.2009 from late Shri Harishchandra Chimanlal Sainani . The suit premises in fact belongs to Gujarat Industrial Development Corporation (“GIDC” for short) and GIDC executed a lease deed dated 1.8.1981 in form of M/s. Standard Ceramics through its partner Shri Vinaykumar Natvarlal Amin . One of the conditions was that the M/s. Standard Ceramics would not transfer in any mode or manner the possession of the suit premises without prior permission of the lessor -GIDC.
4. M/s. Standard Ceramics mortgaged the suit premises in favour of respondent No.2 -Bank for availing various credit facilities in lieu thereof, equitable mortgage by deposit of title deeds of suit premises was executed on 13.8.1981 . It failed to pay back the amount availed .
5. Respondent No.2 -Bank in the proceedings before the Debt Recovery Tribunal (“DRT” for short) against M/s. Standard Ceramics had disclosed various aspects and DRT has declared the property was appropriately mortgaged to the respondent No.2 -Bank by the said M/s. Standard Ceramics for the facilities granted. DRT also in its order dated 24.5.2005 held M/s. Standard Ceramics to be liable to pay to the respondent No.2-Bank a sum of Rs.16,80,000/- (rounded of) with simple interest at 10% per annum from 1.5.1991 until realization and further held that the respondent No.2 -Bank is entitled to sell the hypothecated and mortgaged property for realizing the decretal amount.
6. .It is further averred that the reconstituted firm of M/s. Standard Ceramics made an application for transfer of the said lease deed in favour of late Shri Harishchandra C.Sainani, as per the terms and conditions of GIDC . GIDC permitted such transfer in his favour and this was prior to the decree passed by DRT.
7. Shri Harishchandra Sainani expired in the year 2006 and the said lease deed was trasnferred in the name of of his wife Smt. Kamlaben H.Sainani and present petitioner has been sub-let the suit premises. This has been done after Smt. Kamlaben H.Sainani sought permission of GIDC which was granted in its letter dated 26.3.2006.
8. On 8.6.2009 petitioner requested the GIDC to allow transfer of lease hold rights in the suit premises in favour of respondent No.4 and Smt. Kamlaben Sainani also made it clear in the said letter that her husband was not a party in any of the proceedings before DRT. Accordingly, on 31.7.2009, GIDC transferred the lease hold rights in favour of respondent NO.4 and such lease deed was executed by GIDC with the office of Sub-Registrar , Dehgam . Respondent No.4 executed renewal agreement from 1.4.2010 to 31.3.2012. Further renewal of one year was requested to GIDC and such an application is pending.
9-A. Petitioner has averrred that Late Shri Harishchandra C.Sainani was not a party to it nor was respondent No.4 made party to these proceedings.
9-B. It is also say of the GIDC that it has not given any permission of mortgage to the respondent No.2 -Bank nor the GIDC has registered the bank's right of mortgage. Therefore, bank ought not to auction the suit premises without prior permission of GIDC. There was another communication to that effect by GIDC on 16.11.2007 to the respondent -bank which had granted the permission of subletting vide its order dated 26.3.2008 in favour of the petitioner. Further renewal was effected till 31.3.2010 10.. Respondent N.4 thereafter moved Misc. Application No. 17/2010 in Transfer Application No. 421/1995 before the DRT with application for condonation of delay, for rectification and correction of the order dated 24.5.2005 . He has sought the modification in respect of permission of sale granted in favour of respondent No.2-Bank, and this application is pending till the date before the DRT. .
11 In such circumstances, trial Court deemed it fit to grant injunction in favour of the present petitioner . However, Appellate Court chose not to confirm the said order by holding that no declaration has been sought for by plaintiff and only permanent injunction has been sought. Court also noted that Shri Harichandra Sainani had already died and his heirs were not permitted to be brought on record. Appellate Court also noted that the property which was enjoyed as lessee by the defendant No.1 (Mr.Sainani ) had already died and suit qua him had abated as no heirs were permitted to be brought on record. Court also noted that before giving suit property on rent, it was already mortgaged to the respondent No.2 -bank and suit was pending before the DRT which was decreed in favour of the respondent No.2 -Bank and therefore, the moot question that was needed to be answered by the Court was that when agreement for tenancy right was executed in favour of the petitioner herein, whether Mr. Sainani at all was entitled to deal with the property as by that time the same was already mortgaged with the bank and Bank also had right to recover the dues as per the order of DRT on 24.5.2005. Appellate Court also noted the fact that the auction has already taken place by virtue of direction of DRT and respondent No.4 is the auction purchaser . Therefore, without impleading any of those persons when petitioner -plaintiff claimed the possession by suppressing vital facts, he would not be entitled for any protection as was granted by the Court.
12. Some of the details in the petition also are not disclosed at all and only selective details are furnished without total revelation. It appears from the chronology of events that the partners of M/s. Standard Ceramics deposited title deeds of the said properties with Bank of Baroda . Bank of Baroda filed Civil Suit No. 175 of 1991 against the said M/s. Standard Ceramics to recover its dues. Application for injunction moved was allowed and from 1.5.1991, there was injunction operating against M/s. Standard Ceramics from transferring the said plot No. 109 and 110 . This was confirmed on 8.2.1993. The said suit was transferred to DRT and was registered as Transfer Application No. 421 of 1995. M/s. Standard Ceramics informed GIDC to transfer the said plot in the name of Mr.Sainani subject to payment of dues of Bank of Baroda. Such a request was made along with the undertaking dated 12.6.2003 to pay back the due of Bank. GIDC transferred the said plot in favour of Mr. Harishchandra Sainani subject to aforesaid undertaking. DRT issued Recovery Certificate against M/s. Standard Ceramics upholding the mortgage of the Bank as also giving liberty to attach the immovable properties on 2.4.5.2005.
13. Recovery Officer of DRT in Recovery Proceeding NO.
2320 attached the plots NO. 109 and 110 on 19.12.2005 and Mr.Harishchandra Sainani transferred the said plot to Arjanbhai Mavjibhai Patel the present petitioner at monthly rent of Rs.12,051/- on 22.2.2006 . Auction was conducted by Recovery Officer on 9.4.2009 and such suit was filed by Arjanbhai Mavjibhai Patel against Mr. Harishchandra Sainani and Bank of Baroda on 25.5.2006 .
14. Thus, it can be seen that M/s. Standard Ceramics was injuncted to deal with both the plots right from the year 1991 and in 1993, such injunction got confirmed in favour of the bank and thus, without prior permission of DRT, no transfer could have been effected. What is found hereinbefore is that after recovery officer had attached the plot on 19.12.2005, Mr.Sainani gave these plots on monthly rent to the present petitioner and present petitioner filed the suit before the Civil Judge (Junior Division) instead of approaching the DRT. In such circumstances, when subsequent transfer was made, GIDC in its reply to Nitaben and Smt. Kamalaben has intimated that the matter is pending before DRT and GIDC will not responsible for this transfer and both of them gave their respective undertakings to the GIDC ensuring that they will be bound by outcome of the proceedings pending before the DRT, as also before the Civil Court.
15. As can be apparently seen from the choronology of events that this transfer has been effected in favour of present petitioner after the DRT held in favour of respondent No.2 -Bank. Petitioner was transferred the purported tenancy rights from late Shri Harishchandra Sainani . Trial Court ought to have taken note of the fact that the suit appears to have been preferred to overreach the process of law by completely circumventing vital requirements .
16. It is obvious from the record itself that the injunction was operating in favour of respondent No.2-Bank right from 1.5.1991 and such relief of injunction not only resulted into confirmation of such injunction, but suit after having been transferred to the DRT, culminated into attachment of the suit plot by virtue of the order of 19.12.2005. The recovery officer was appointed as well and therefore, any transfer that had been made subsequent to such injunction by the Court would be an attempt to over-reach the process of law. Again, the petitioner though has averred that GIDC gave permission of such transfer of tenancy rights while so stating it chose not to truthfully reveal the fact that such transfer was subject to undertaking furnished by the original lessee and also by subsequent tenants. Therefore, unless the original undertaking of payment of dues is fulfilled, no party can have right to approach the Civil Court directly without disclosing all these details. The suit preferred by the petitioner herein does not disclose any of these basic details also. He has contrarily impleaded deceased Shri Harishchandra Sainani as party defendant . However, all that had transpired right from the year 1991, was never disclosed before the Court concerned. It is a clear attempt of manipulation and of misuse of process of law.
17. Every party has right to litigate and for its right and to take recourse to every possible legal action available under the statute. However,that in no manner authorizes any one to compromise with the quality and truthfulness of the pleadings. Predominant requirement expectation every litigant is to approach the Courts of law with clean hands without suppressing any facts much less material aspects. Had those details been revealed before the trial Court, result could have been other than what is being found presently on record. The Appellate Court for different sets of reasons rightly did not confirm such an order . However, details elaborated hereinabove before this Court, in no manner permits this Court to intervene in the order impugned particularly in the proceedings under Article 227 of Constitution of India .
18. It would be appropriate to refer to the judgements rendered in case of Surya Dev Rai Vs. Ram Chander Rai & Ors. reported in (2003) 6SCC 675 and Kokkanda B. Poonbacha and others Vs. K.D.Ganapathi and another reported in (2011) 12 SCC 600 .
19. Reiteratively, submissions have been made before this Court that GIDC had though insisted upon Bank dues being paid , it also refused to recognize the rights of the Bank. Assuming for the sake of arguments that such dispute is between the GIDC and Bank, that would not in any manner tilt the balance in favour of the petitioner herein, who has in any case required to approach the DRT for an appropriate and efficacious remedy . Therefore, no prejudice is likely to occur which would call for interference by this Court . Resultantly, this petition being devoid of any merits, stands disposed of . Ad-interim relief granted in favour of petitioner also stands vacated forthwith. Request for extension cannot be acceded to, for the reasons that the same was granted without hearing both the side on merits and considering the glaring facts, discussed hereinabove would not permit this Court to allow such relief to continue.
Resultantly, this petition stands dismissed in the above terms.
(Ms.Sonia Gokani,J) bina