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2012 DIGILAW 566 (RAJ)

Sangeeta v. State of Rajasthan

2012-03-02

C.M.TOTLA, DINESH MAHESHWARI

body2012
JUDGMENT 1. These two intra-court appeals carry inter-related factual aspects; the appellants herein are also closely related as daughter and father; and, in essence, the matter is of attempt to somehow prevent the proceedings as adopted by the creditor Bank (represented by the respondent No.3) for recovery of the over dues against the borrower Shri Narendra Singh (respondent No.4 in SAW No.158/2012). Hence, these appeals have been considered together; and are taken up for disposal by this common order. 2. The appellants herein filed the respective writ petitions, being CWP No.12200/2011 and No.11463/2011, seeking to question the proceedings as adopted by the respondents Nos.2 and 3 for recovery of the dues against Shri Narendra Singh son of Fateh Singh Chouhan, who came to be impleaded as respondent No.4 in CWP No.12200/2011 on his application. 3. The petitioner of CWP No.11463/2011 (related with SAW No.159/2012) Shri Ashok Bhai Kasyap attempted to question the auction proceedings as sought to be adopted by the respondents under the auction notice dated 04.11.2011 on the allegations of irregularities; and prayed for the relief that he be allowed to participate in the auction without any partiality. 4. On the other hand, the petitioner of CWP No.12200/2011 (related with SAW No.158/2012) Ms.Sangeeta, describing herself as daughter of the said Shri Ashok Bhai Kasyap submitted that she was living in the premises in question with her father with legal right; and that her father had entered into an agreement for purchase of the property in question with Shri Narendra Singh on 20.01.2006. While stating other facts that the property in question was, at the relevant time, mortgaged with Punjab National Bank and Sirohi District Commercial Co-operative Bank, the petitioner Ms.Sangeeta alleged that registered deed was to be executed after clearing off all the dues. It was further averred that the said Shri Narendra Singh attempted to sell the property to some other persons and hence, Shri Ashok Bhai Kasyap filed a suit for perpetual injunction that was decreed on 25.09.2008. The copies of judgment and decree dated 25.09.2008 have been placed on record as Annexures -3 and 4 and clear it is that the said Shri Narendra Singh neither filed any written statement nor led any evidence in the said suit. Thus, the suit was decreed practically uncontested. The copies of judgment and decree dated 25.09.2008 have been placed on record as Annexures -3 and 4 and clear it is that the said Shri Narendra Singh neither filed any written statement nor led any evidence in the said suit. Thus, the suit was decreed practically uncontested. The petitioner further averred that after the decree so passed, Shri Narendra Singh 'showed his interest' to execute the deed in favour of Shri Ashok Bhai Kasyap and for this purpose, loan was deposited with Punjab National Bank on 03.09.2009; and thereafter, 'Narendra Singh executed the registered sale deed in favour of petitioner as per the desire of Ashok Bhai Kasyap in respect of half portion of the premises in question'. 5. With the foregoing averments, the petitioner Ms. Sangeeta put to challenge the public notice as issued by the respondent Adarsh Co-operative Bank Ltd. on 13.11.2011 regarding auction of the property in question, which, according to the petitioner, belonged to her. It appears that in the said writ petition (CWP No.12200/2011), the creditor-bank appeared in caveat and the submissions were emphatically made before the Court that the petitioner was none else but the wife of the borrower Narendra Singh and that the entire proceedings were adopted by the petitioners in collusion with the borrower. On 12.12.2011, the writ Court considered the matter preliminarily, noticed the submissions made on behalf of the respondents about connectivity of the petitioner with the borrower, and called upon the petitioner to explain her status with the following order:- "During the course of arguments, learned counsel for the respondents has produced a copy of voter-list of Municipal Council, Abu Road, 2010, in which, the name of borrower Narendra Singh S/o Fateh Singh followed by the name of Sangita W/o Narendra Singh, aged 42 years has been shown. Learned counsel for the respondent No.2- Adarsh Co-operative Bank Ltd. (earlier known as Sirohi Central Co-operative Bank Ltd.) has, therefore, raised a doubt that the present petitioner Sangeeta, who is a lady of 41 years shown in the writ petition, has approached this Court without disclosing the name of her husband, is probably the wife of borrower Narendra Singh himself and this is a collusive litigation. The name shown in the writ petition is Sangeeta D/o Ashok Bhai Kashyap, by caste Brahmin, whereas Narendra Singh S/o Fateh Singh Chouhan appears to be Rajput by caste. The name shown in the writ petition is Sangeeta D/o Ashok Bhai Kashyap, by caste Brahmin, whereas Narendra Singh S/o Fateh Singh Chouhan appears to be Rajput by caste. Learned counsel for the petitioner, Mr. Varun Goyal is not in a position to reply affirmatively as to the correct identity of the petitioner as to whether she is or was married to the same person Narendra Singh S/o Fateh Singh Chouhan, the borrower or she is a different person having no connection with the borrower Narendra Singh S/o Fateh Singh Chouhan. Before the writ petition is argued on merits, it is considered necessary and accordingly, counsel for the petitioner is directed to produce the relevant evidence like photo ID Card, marriage certificate, copy of telephone bills etc. of the present petitioner with residential address with her husband name therein with her specific affidavit in this regard to ascertain whether it is a collusive writ petition filed by the wife of the borrower Narendra Singh or by bonafide purchaser of the portion of the property in question, which is subject matter of auction for realisation of dues by the respondent-Bank. Put up on 14.12.2011". 6. While considering the matter involved in CWP No.12200/2011 finally on 23.02.2012, the learned Single Judge took into comprehension all the facts and circumstances of the case after extending opportunity of making submissions to the petitioner and then, found as under:- "There are on record the voter lists showing that Narendra Singh, who is defaulter and who has not paid dues of the respondent-Madhav Nargik Sahakari Bank Ltd., his name appears at Sr. No. 245 in the voter list of Election 2010 with residential address of House No. 1249, wheres name of petitioner-Sangeeta is mentioned at Sr. No. 246 in the said voter list with the name of her husband as Narendra Singh showing the same residential address of House No. 1249. There is also on record a certificate issued by the St. Anselm's Senior Secondary School Abu Road, Sirohi dated 13/12/2011 showing that Tejasvi Singh Chauhan is the daughter of Narendra Singh Chauhan & Sangeeta Singh Chouhan. Other voter list is also on record wherein names of Narendra Singh Chauhan and Sangeeta Singh Chouhan are shown at Sr. There is also on record a certificate issued by the St. Anselm's Senior Secondary School Abu Road, Sirohi dated 13/12/2011 showing that Tejasvi Singh Chauhan is the daughter of Narendra Singh Chauhan & Sangeeta Singh Chouhan. Other voter list is also on record wherein names of Narendra Singh Chauhan and Sangeeta Singh Chouhan are shown at Sr. No. 148 and 149, respectively showing them husband & wife.In the gift deed also, both - Narendra Singh Chauhan and Sangeeta Singh Chouhan are shown as natural guardian of Tejasvi Singh Chauhan, who has been described as daughter of the two. In these facts, the court is satisfied and has all the reason to hold that even the injunction suit, which was filed by the father of the petitioner was also a collusive suit. Shri Narendra Singh, as per sale-deed is shown to have received Rs. 6.50 lacs and in that also, it appears that cheques of Rs. 2,55,000/- has been shown to have been deposited by the petitioner with the Allahabad Bank towards the loan account of Narendra Singh." 7. Looking to the conduct of the petitioners who were trying to play smart with the Court by filing these collusive petitions, the learned Single Judge was clearly of opinion that equitable writ jurisdiction was not available for them and said, in no uncertain terms, that: "Conduct of the petitioner is clearly of misleading the court. Equitable remedy of writ petition is not meant for persons, who try play smart with the court and who do not come with clean hands. Petitioner does not deserve for any relief from this Court in such like cases. Petitioner is guilty of concealing the material facts and attempting to play fraud with the proceedings of the court." 8. Accordingly, the learned Single Judge dismissed the writ petition (CWP No.12200/2011) with costs of Rs. 5,000/-, to be deposited with the Legal Services Authority within four weeks; and observed that the petitioner would be proceeded for contempt upon failure to deposit the amount. The other writ petition (CWP No.11463/2011) was also dismissed in the light of detailed order as passed in CWP No.12200/2011. 9. 5,000/-, to be deposited with the Legal Services Authority within four weeks; and observed that the petitioner would be proceeded for contempt upon failure to deposit the amount. The other writ petition (CWP No.11463/2011) was also dismissed in the light of detailed order as passed in CWP No.12200/2011. 9. Seeking to assail the orders aforesaid, the learned counsel for the appellant-petitioner attempted to argue that the property in question, having not been mortgaged with the respondent-Bank, could not have been proceeded against; and that the appellant of SAW No.158/2012 (the petitioner of CWP No.12200/2011) being a bona fide purchaser, has the right to protect her property. The learned counsel contended that the learned Single Judge was not justified in declining the relief to the petitioner only with reference to the alleged conduct but without considering that her personal life was not a matter of adjudication; and the respondents were somehow trying to question the personal life of the petitioner only in order to avoid the real issues. The learned counsel submitted that when the appellant of SAW No.158/2012 has become absolute owner of the property, as per Section 14 of the Hindu Succession Act, her rights cannot be snatched by the Bank. In relation to other appeal, SAW No.159/2012, the learned counsel contended that the learned Single Judge has been in error in dismissing the petition without considering the merits of the case and only on the basis of the order passed in the other case whereas the point involved in this case had been entirely different and related to the irregularities in the auction proceedings. 10. During the course of submissions, when we posed the questions on the status of the appellant of SAW No.158/2012, the learned counsel submitted that this appellant has not concealed any fact and has made it clear that she was not the legally wedded wife of the respondent Narendra Singh who was married with another woman and a divorce petition was pending in the Family Court at Jodhpur. The learned counsel submitted that the petitioner-appellant has otherwise not denied the fact of her knowing Shri Narendra Singh but in any case, such facts do not take away her property rights that have come into existence by virtue of the registered sale deed; and the Bank is not entitled to proceed against the property belonging to her. 11. The learned counsel submitted that the petitioner-appellant has otherwise not denied the fact of her knowing Shri Narendra Singh but in any case, such facts do not take away her property rights that have come into existence by virtue of the registered sale deed; and the Bank is not entitled to proceed against the property belonging to her. 11. After having examined the material placed on record and having given our anxious consideration to the submissions, we do not have even a wee bit of doubt that the writ petitions related with these appeals were required to be rejected; and we are clearly of the view that the learned Single Judge was justified in declining to exercise the writ jurisdiction at the instance of the present petitioners-appellants. 12. It is more than apparent that the appellant of SAW No.158/2012 consciously avoided to state her status qua the borrower; and attempted to suggest as if she was a bona fide purchaser of the property in question. It were the respondents who placed on record substantial and clinching evidence to show that the borrower (the alleged transferor of the property) and the petitioner-appellant (the alleged purchaser of the property) were closely related to the extent that the petitioner-appellant was shown in the voter-lists as the wife of the said borrower Narendra Singh; and was shown residing in the same house where the borrower was residing. Then, the school where the daughter of the petitioner is studying has also issued the certificate to the effect that the child was shown as the daughter of Narendra Singh Chouhan and Sangeeta Singh Chouhan. It has not been disputed that the said girl child is the daughter of the appellant of SAW No.158/2012. 13. We have examined the said documents, being the copies of the voter-lists and the certificate issued by St. Anselm Senior Secondary School; and we find no shortcoming in the conclusion as drawn by the learned Single Judge that the proceedings by the petitioners-appellants were of collusion with the borrower. The learned Single Judge has arrived at such conclusion after the requisite evaluation of the material on record with reference to the facts and circumstances of the case. 14. Anselm Senior Secondary School; and we find no shortcoming in the conclusion as drawn by the learned Single Judge that the proceedings by the petitioners-appellants were of collusion with the borrower. The learned Single Judge has arrived at such conclusion after the requisite evaluation of the material on record with reference to the facts and circumstances of the case. 14. In a comprehension of the matter in its totality, nothing is left to any guess or doubt that the appellant of SAW No.158/2012 stands in such close connectivity and proximity to the borrower that the alleged alienation of the property by the borrower to her gives rise to serious questions. The other appellant, of SAW No.159/2012, is none other but the father of the appellant of SAW No.158/2012 and is said to be residing with her. Thus, apparent it is on the face of the record that the appellants stand in close proximity with the borrower. Prima facie, we are of the view that the alleged transfer in favour of the present appellants had only been made with intent to defeat and delay the creditors of transferor; and such a transfer, being clearly fraudulent, is not binding on the creditor. The attempt on the part of the appellants to obstruct the recovery proceedings by way of writ petitions could not have been countenanced; and we are at one with the learned Single Judge that equitable remedy of writ jurisdiction cannot be allowed to be misued by the persons who try to play smart with the Court. Such kind of litigation could only be considered fundamentally lacking in bona fide and, in our opinion, the learned Single Judge was perfectly justified in dismissing the petitions. 15. The error, if any, on the part of the learned Single Judge has been of imposing costs at an amount of Rs. 5,000/- only. We are of opinion that the costs as imposed by the learned Single Judge deserve to be enhanced. Looking to the facts and circumstances, we enhance the amount of costs in the order as passed in CWP No.12200/2011 from Rs. 5,000/- (five thousand) to Rs. 25,000/- (twenty five thousand). 16. The appeals are dismissed with the enhancement of the amount of costs as aforesaid.Appeals dismissed. *******