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2013 DIGILAW 1760 (RAJ)

Rajendra Baheti v. M/s. Quality Conduit Pvt. Ltd.

2013-10-01

VIJAY BISHNOI

body2013
JUDGMENT 1. - This writ petition has been preferred by the petitioner against the order dated 17.04.2013 passed by Additional District Judge No. 5, Jodhpur Metropolitan (for short 'the trial court' hereinafter) in Civil Original Suit No. 224/2012, whereby the learned trial court, while rejecting the applications preferred by Central Bank of India (hereinafter referred to 'as respondent-Bank') under Order 7, Rule 11 CPC and under section 9 read with section 151 CPC, has ordered for deletion of the name of respondent-Bank from the array of defendants. 2. Brief facts of the case are that the petitioner filed a suit for specific performance of contract and permanent injunction on the strength of agreements to sale dated 16.10.2007 and 29.11.2007 executed by the respondent Nos. 1 to 3 in favour of the petitioner, while impleading the respondent-Bank as defendant Nos. 4 and 5. The respondent-Bank has preferred applications under Order 7, Rule 11 CPC and under section 9 read with section 151 CPC before the learned trial court and prayed for dismissal of the suit. The learned trial court, after considering the said applications and after hearing arguments of learned counsel for the parties, has rejected the above applications preferred by respondent-Bank, however, has ordered for deletion of respondent-Bank from array of defendants in the suit. 3. Being aggrieved with the deletion of respondent-Bank from array of defendants, the petitioner has preferred this writ petition. 4. Mr. M.S. Singhvi, Senior Advocate assisted by Mr O.P. Mehta, appearing on behalf of the petitioner, has argued that the learned trial court has erred in deleting the respondent-Bank from the array of defendant, though there was no specific prayer made by the respondent-Bank for deleting its name from the array of defendants in the suit and without there being any such prayer, the learned trial court has no jurisdiction to order for deleting the respondent-Bank from the array of defendants in the suit filed by the petitioner. It is further argued that though the respondent-Bank may not be necessary party but it is a proper party and its deletion as defendants in the suit will adversely affect the rights of the petitioner. The learned counsel for the petitioner has, therefore, prayed that the impugned order passed by the learned trial court may be set aside to the extent of ordering for deleting the respondent-Bank from the array of defendants. 5. The learned counsel for the petitioner has, therefore, prayed that the impugned order passed by the learned trial court may be set aside to the extent of ordering for deleting the respondent-Bank from the array of defendants. 5. Per contra, the learned counsel for the respondents-Bank has argued that the agreements to sale executed in favour of the petitioner are admittedly executed after initiation of the proceedings under section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act of 2002' hereinafter) and, therefore, in view of the law laid down by this Court in Mohan Lal & Anr. v. Dwarka Prasad & Ors., reported in 2007 (6) WLC (Raj.) 584 , the learned trial court has not committed any illegality in ordering for deleting the respondent-Bank from the array of defendants in the suit preferred by the petitioner for specific performance of contract against the respondent Nos. 1 to 3. 6. Heard the learned counsel for the parties, perused the impugned order as well as the material placed on record by the parties. 7. Order 1, Rule 10 (2) of the CPC reads as under: "(2) Court may strike out or add parties.- The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." 8. Order 1, Rule 10 (2) CPC provides that Court may, at any stage of proceedings, either upon or without the application of either party, order for striking out the name of any person, whether as plaintiff or defendant. 9. From plain reading of above provisions, it is a clear case that court can ever order for deletion or striking out name of any person from the array of defendant without there being any application from the either of the party. 9. From plain reading of above provisions, it is a clear case that court can ever order for deletion or striking out name of any person from the array of defendant without there being any application from the either of the party. In a given case, if the court finds that name of any person is liable to be deleted from the array of plaintiff or defendant, it can exercise its discretion and order for the same on its own. Therefore, it cannot be said that the learned trial court has no jurisdiction to order for striking out the name of respondent-Bank from array of respondents as defendants in the suit preferred by the petitioner, though no such prayer was made before it. Therefore, the contention of the learned counsel for the petitioner that the trial court has erred in striking out the name of the respondent-Bank from array of defendants, without there being any prayer of this effect, is devoid of merits and the same is, therefore, rejected. 10. So far as the question of necessity of presence of the respondent-Bank for adjudication of the suit is concerned, this Court in case of Mohan Lal & Anr. v. Dwarka Prasad & Ors. (supra), after taking into consideration the provisions of Act of 2002 and particularly the question regarding the necessity of the financial institution to be impleaded as array of defendants in a civil suit filed for determination of civil rights between the parties including the borrower, has held as under:- "27. The up-shot of the above discussions is that following guidelines and directions emerge : (i) That while Civil Courts still remain appropriate forums and can continue to decide inter party civil rights in the cases involving civil rights of the parties like in the cases of partition, cancellation of sale deed, gift deed, right of pre-emption, redemption of mortgage etc. and the bar contained in Section 34 of the Securitization Act is not absolute and does not debar Civil Courts to entertain such suits, however, no suit for injunction in any Civil Court can be allowed to prohibit and debar the measures taken by banks and financial institutions under Securitization Act, 2002 or under R.D.B. Act, 1993, except as specified below in para (ii). (ii) In cases of partition suits of ancestral property owned by a Hindu Undivided Family which has been mortgaged by one or more of the co-parceners, without other coparceners being guarantors or borrowers of the bank or financial institution, the Bank, financial institution or Debt Recovery Tribunal cannot proceed to take over & sell, transfer or otherwise alienate the said ancestral undivided property unless & until the share of the particular borrower coparceners or the bank itself. (iii) That the cut off date excluding the jurisdiction of the Civil Court in respect of measures specified U/s. 13(4) of the Securitization Act is the date when such measures are taken after expiry of notice period U/s. 13(2) of the Act and after such cut off date no civil suit or injunction barring or prohibiting the right of the banks and financial institutions with respect to measures U/s. 13(4) of the Act can adversely affect the bank nor such injunction would be binding on the bank or financial institution, except the cases of exception specified in para (ii) above. (iv) From the said cut off date if any such third party has a pending claim or intends to claim his right, title or interest over the property, which is security of the bank or financial institution, the remedy opens for him before the Debt Recovery Tribunal U/s. 17(1) of the R.D.B. Act and he can raise his objection or bring it to the notice of the Tribunal the fact of pendency of such civil suit and thereafter the Tribunal the fact of pendency of such civil suit and thereafter the Tribunal shall decide such objection within 60 days, as stipulated in Section 13(5) of the Act and hold either way as to whether a note to the effect of pending litigation has to be made by the bank or financial institution concerned in the notification, advertisement for sale and conveyance deed, if any, executed in exercise of their powers U/s. 13(4) of the Act in favour of any third party, and also whether to allow the Bank or financial institution to proceed further under these special enactments against the security or mortgaged property at all or not. (v) In case upon adjudication of right, title or interest of any third party in a civil suit is decreed in his favour, such party upon such decree becoming final, shall be entitled to follow the whole or the part of the property, which formed security of the bank or the financial institution concerned and claim bank either the suit property from the successor-in-title or to claim damages int he alternative for the same. (vi) If in such civil suits filed for determination of civil rights between the parties including the borrower, who has mortgaged the suit property in whole or in part with the bank or financial institution, who have initiated steps U/s. 13(4) of the Act, the banks and financial instititons would be free to apply to the competent Civil Court and upon such application the bank or financial institition shall be deleted from the array of defendants and no injunction granted by the Civil Court would bind the bank or financial institution in respect of measures taken U/s. 13(4) of the Act, except in the cases relating to partition of Joint Hindu Undivided Family ancestral property. 28. In view of above, the questions framed are answered in the following terms : (i) That after enactment of Securitization Act w.e.f. 17.12.2002, the Civil Courts can continue to decide civil suits filed U/s. 9 of CPC of adjudicate the inter se rights between the third parties including the the borrower of such banks and financial instititions, but no such suit can be entertained nor any such injunction can be granted after the cut off date of initiation of measures U/s. 13(4) of the Securitization Act, subject to exception in cases of partition of ancestral joint Hindu Family property as given in para 27(ii) above. (ii) After the cut off date of initiation of measures U/s. 13(4) of the Act, no Civil Court can grant any injunction against the banks and financial institutions after they have initiated steps U/s. 13(4) of the Act, except as aforesaid." 11. In the case in hand, it is not in dispute that the agreements to sale dated 16.10.2007 and 29.11.2007 were executed in favour of the petitioner by the respondent Nos. 1 to 3 much after the initiation of proceedings under section 13(4) of the Act of 2002. In the case in hand, it is not in dispute that the agreements to sale dated 16.10.2007 and 29.11.2007 were executed in favour of the petitioner by the respondent Nos. 1 to 3 much after the initiation of proceedings under section 13(4) of the Act of 2002. The respondent-Bank in its reply to the writ petition has averred that notice under section 13(2) of the Act of 2002 was issued to the respondent Nos. 1 to 3 on 11.07.2002 and possession of the property was taken over by the respondent-Bank on 11.10.2007. The said averments have not been disputed by the petitioner and in such circumstances, the learned trial court has not committed any illegality in ordering for deleting the respondent-Bank from the array of defendants in Civil Suit No. 224/2012 while observing that respondent-Bank is neither necessary nor proper party, after placing reliance on the decision of this Court in Mohan Lal v. Dwarka Prasad & Ors. (supra). 12. In view of the above discussions, this writ petition, being devoid of merits, is hereby dismissed.Petition Dismissed. *******