Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 9686 of 2018 Petitioner :- Pankaj Kumar Varma And Another Respondent :- Sindicate Bank And 2 Others Counsel for Petitioner :- Ashiyam Nasir,Shabeena Begum Counsel for Respondent :- Abhishek Mishra
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against an order dated 21.03.2017 passed under Order 9 Rule 13 of the Code of Civil Procedure in Original Suit No.498 of 2012 (Pankaj Kumar Varma & another Vs. Mohammad Wasim & another) which has been filed by the petitioners herein.
The order impugned categorically records that the exparte decree dated 04.12.2012 was obtained by the plaintiffs in collusion with the defendant, in as much as, they deliberately did not appear in the said suit. The said suit was filed in the month of December 2012 with the relief of cancellation of the registered sale deed dated 19.12.2008. The said suit property was mortgaged with the applicant-bank namely Syndicate Bank, Hasanpur on 23.12.2008, for a loan of approximately Rs.42 lac.
The factum of execution of the mortgage deed in favour of the bank had not been brought to the knowledge of the court below. The interest of the bank has thus suffered on account of the exparte decree passed on 04.12.2012 for cancellation of the sale deed .
In the interest of the justice, while recalling a exparte decree dated 04.12.2012, the court below has restored the suit to its original number and fixed the date for further proceeding therein. The order passed by the trial court for recall of the exparte decree has been affirmed in appeal.
These orders are being challenged in the present petition with the assertion by the learned counsel for the petitioners that an application was moved by the petitioners/plaintiffs in the year 2012 under the Right to Information Act' 2005, to know about the status of the suit property, the bank, however, did not reveal the said information to the plaintiff taking aid under Section 8(1)d of the Act' 2005 and Section 13 of the Banking Companies Act' 1970. It is, thus, contended that in absence of any information regarding the suit property being mortgaged with the bank having not been revealed by it. The plaintiffs cannot be said to have not acted bonafidely in institution of the suit for cancellation of the sale deed without impleadment of the bank. The bank was neither necessary nor proper party in the suit for cancellation of the sale deed filed on the grounds stated in the plaint.
In reply to the said submission, it is pointed out by the learned counsel for the respondent-bank that the proceeding for recovery of loan was initiated against the defendant in the aforesaid suit and a notice under Section 13 (4) of the SARFAESI Act was issued on 04.04.2012. The instant suit has been fled in the month of December 2012 to counter the said proceeding i.e. in order to frustrate the recovery initiated by the bank under the SARFAESI Act against the vendee of the sale deed dated 19.12.2008, i.e. the mortgagee/borrower.
The defendant had deliberately avoided the proceeding of the suit in order to get an exparte decree against them so that they may frustrate the bank recovery, proceeding against them.
The proceeding under the SARFAESI Act has not been objected by the defendant till date. The bank has filed application under Section 19 of the SARFAESI Act for recovery of money wherein the defendants in the instant suit have been impleaded.
Noticing the said fact and the reasoning given by the court below in the order of recall of the exparte decree dated 04.12.2012, this Court is of the considered view that the plaintiff and defendants in the said suit are in collusion and they have got exparte decree in order to frustrate the recovery initiated by the bank.
In view of the said aspect of the matter, no infirmity can be attached to the order of the trial court. The revisional court has rightly refused to interfere.
The present petition is found devoid of merits and hence dismissed.
Order Date :- 21.1.2019 Himanshu