1. Being aggrieved by the judgment and order dated 15.2.2012 passed by the Principal Civil Judge, (S.D.), Ahmedabad (Rural) in Special Civil Suit No.330 of 2011 whereby the application Exh.5 was dismissed, the appellant-original plaintiff has preferred this appeal. For the sake of convenience, the parties are referred to original plaintiff and original defendants.
2. The facts leading to filing of this appeal are such that the plaintiff is a lawful owner who is in possession and occupation of the suit property i.e. Row House No.39 of New Man Mandir Vejalpur Cooperative Housing Society Ltd., bearing registration no.Gh-14814 dated 30.4.1992, survey no.502/B/3 paiki situated in the sim of village Vejalpur, Taluka City District Sub- district Ahmedabad. It is the say of the plaintiff that the plaintiff booked row house no.39 in the said society and made payment of Rs.2,51,000/- on 28.6.2001 to the Chairman and Secretary of the said society viz. Govindbhai Bhagwanbhai Patel. That he has made payment towards full consideration of Rs.4,71,000/- without any loan from any bank or financial institution. The said society has also given possession letter to the plaintiff. That defendant no.1 issued notice dated 26.11.2009 at the address of the plaintiff. It is his say that defendants no.2 and 3 have borrowed and availed a term loan and cash credit facility of Rs.8,80,000/- from defendant no.1 against illegal security of row house no.39. The plaintiff filed the suit for declaration and permanent injunction along with the injunction application Exh.5 praying for restraining defendants no.1,2,3 and 4, their agents, servants, assignees, attorneys from directly or indirectly, in any manner, taking possession or in any manner from dispossessing the plaintiff, or in any manner from disturbing the plaintiff's possession of row house no.39 of New Man Mandir Vejalpur Cooperative Housing Society Ltd., Vejalpur, Ahmedabad.
3. The defendants no.1,2 and 3 filed their written statements to the said injunction application. Defendant no.1 Bank submitted that the plaintiff's suit is barred by principles of Res Judicata and Order II Rule 2 of the Code of Civil Procedure Code, 1908. It was also the say that the plaintiff was not party to the Registered Allotment cum Possession Deed No.2234 dated 22.3.2006 which was executed by defendant no.4 in favour of defendants no.2 and 3 and the documents of title held by the plaintiff are clearly fabricated and concocted. The defendants no.2 and 3 submitted in their written statement that the plaintiff's suit is barred by the provision of the Bombay Stamp Act and the Gujarat Cooperative Societies Act.
4. After hearing the parties, the learned trial Court rejected the injunction application Exh.5 against which the present appeal is filed.
5. Heard learned advocates for the parties and perused the record and impugned order.
6. Learned advocate for the plaintiff submits that the trial Court has rejected the injunction application Exh.5 on the ground that the Debts Recovery Tribunal (DRT) has decided the Securitization Application No.8 of 2011 between the same parties and for the same property. It is submitted by learned advocate for the appellant that the DRT while disposing of Securitization Application No.8 of 2011 has held that legally speaking the Tribunal does not possess the jurisdiction to try and decide the question about the ownership of the property, Further, it is held by the DRT that it is the learned civil Court who possess the jurisdiction to declare the legal owner of the property and as the Special Civil Suit is pending, the applicant was granted liberty to pursue the same and accordingly dismissed the application. He further submits that the plaintiff is in possession of the suit property and he is residing with his family members in the said property. The electricity bill is also paid by him and there are other documents showing the possession of the plaintiff with regard to the suit property. Therefore, learned trial Court ought to have allowed the injunction application Exh.5 and committed error in not doing so. Therefore, he requested to allow this appeal as well as the injunction application Exh.5.
7. On the other hand, learned advocate for the respondents submits that the documents produced by the plaintiff are fabricated one. That the defendants have purchased the property through the society for Rs.11,45,000/- and allotment letter is issued by the society and the present appellant has paid Rs.96,000/- for the stamp. That the defendants have obtained loan from Vijaya Bank and the said property was put in mortgage with the said bank. That No Objection Certificate was also issued by the society and the defendants were allotted the said house by the society and therefore fraud is committed by the plaintiff by creating the forged documents. Therefore, he submitted that the trial Court has rightly rejected the injunction application Exh.5 and requested to dismiss the appeal.
8. As per the case of the plaintiff, the plaintiff purchased the house for payment of Rs.4,71,000/- while the defendants paid Rs.11,45,000/- towards the price of the house and also paid stamp duty of Rs.96,000/- for registration of the documents. The defendants also obtained loan by putting this property in mortgage with the bank-Vijaya Bank respondent no.1 and while obtaining the loan the defendants have also obtained No Objection Certificate from the society which is also found authentic and signed by authorized person of the society.
9. On perusing the documents produced by the plaintiff, it appears that the said documents do not, prima facie, inspire confidence and do not seem to be genuine. None of the documents produced by the plaintiff are registered. Looking to the number of share certificates issued to the plaintiff and defendants, it seems that the defendants' share certificates are prior in point of time. Further, it can be noticed that the allotment letter issued to the defendants is signed by one Mr.Rakesh Brahmbhatt, whose affidavit is not filed and also did not appear also not produced any receipt showing the payment made towards the consideration of sale of the property. The DRT has also held that as far as the issue of fraud is concerned, only the concerned Civil Court has jurisdiction and when matter is pending it is for the civil court to decide this issue.
10. As per the submission of learned advocate for the appellant-plaintiff in similar kind of transaction, complaint is lodged for fraud in which the Bank Officer is also involved. Further, for the house of the said society, this Court (Coram:Jayant Patel,J) has granted interim relief in favour of the appellant-plaintiff vide order dated 15.1.2009 passed in Special Civil Application No.263 of 2009 and gave direction to the trial Court for expeditious disposal of the suit and as facts of the present case are identical with the cited case the appeal deserves to be allowed.
11. There is no force in the said argument, as discussed above, prima facie, it seems that the documents relied on by the present appellant-plaintiff are not inspiring confidence and found to be not genuine and so facts of this case are totally different from the case cited above.
12. Considering the aforesaid facts, prima facie, the documents produced by the plaintiff do not seem to be genuine and the same cannot be decided at the interim stage without leading the evidence. Under the circumstances, this Court is of the considered opinion that no case is made out by the plaintiff to grant the injunction in his favour and the trial Court has rightly rejected the injunction application Exh.5 filed by the plaintiff.
13. In view of the above, this appeal is required to be dismissed and the same is dismissed. As the main appeal is dismissed, civil application is also dismissed accordingly. No order as to costs.
( M.D.Shah, J ) srilatha