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Madhya Pradesh High Court · body

2016 DIGILAW 29 (MP)

Kallu Ram Agarwal v. Ku. Kusum Jamdar

2016-01-08

R.S.JHA

body2016
ORDER 1. The present appeal has been filed by the appellant being aggrieved by order dated 27.6.2014 passed by the Second Additional District Judge, Gwalior in Civil Appeal No.8-A/2011 whereby the order passed by the trial Court rejecting the plaint under Order 7 rule 11 CPC by order dated 22.2.2011 passed in Civil Suit No.21-A/2011 has been set aside and the matter has been remitted back for adjudication on merits. 2. Learned counsel for the appellant by taking this Court to various paragraphs of the suit submitted that the plaintiff in collusion with the bank authority had mortgaged the disputed property with the bank without disclosing the fact that the respondent/plaintiff had share in it and that consequently the bank is pressing to auction it in recovery proceedings initiated under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI' Act). It is stated that on the basis of said averment the suit was filed by the respondent against which the appellant has filed an objection under Order 7 rule 11 CPC, which was allowed by trial Court by order dated 29.11.2011 but the appellate Court by taking into consideration the subsequent events which were not part of the plaint averment has allowed the appeal and remanded the matter back to the trial Court for adjudication on merits. 3. It is stated that in paragraph 17 of the order, the appellate Court has taken into consideration subsequent event that has occurred in which the bank liabilities have been satisfied and a non-encumbrance certificate has been issued by the bank. On the basis of aforesaid subsequent event which has been taken into consideration by the appellate Court, it has remanded matter back to the trial Court for adjudication on merits. 4. It is submitted that as proceedings under Order 7 rule 11 CPC can be decided only on the basis of averment of the plaint, the appellate Court has grossly erred in allowing the appeal, as it is apparent on the basis of averment of the plaint that the suit filed by the respondent is barred under section 34 of the SARFAESI Act. 5. 5. Learned counsel for the appellant has also pointed out that the respondent No.3 who is brother of the plaintiff/respondent No.1 had also made similar allegation and had filed proceedings before the Debt Recovery Tribunal but the same was dismissed and it is only thereafter that the respondent No.1/plaintiff has filed the present proceedings which clearly indicate that the same is mala fide. 6. Learned counsel for the respondent per contra submits that the suit is filed by the plaintiff seeking declaration of his right in the property. It is stated that the ancillary relief has also been sought for quashing of the proceedings initiated by the bank for recovery from the property in dispute and it is also asserted that as on date no proceeding before DRT are pending and there is no encumbrance on the property in favour of the Bank and therefore the suit filed by the respondent is maintainable and therefore the appellate Court has rightly remanded the matter back to the trial Court for adjudication on merits. 7. Having heard learned counsel for the parties, I am of the considered opinion that the application under Order 7 rule 11 CPC has to be decided on the basis of the averments made in the plaint by the plaintiff as has been specified in clause (d) of Order 7 rule 11 CPC. From perusal of the plaint, it is apparent that respondent No.1 has assailed the recovery proceedings that has been initiated by the bank against her. It is also apparent that there is no pleadings in the plaint or any amendment therein regarding subsequent event, bringing on record that fact that the loan has been repaid and the property has been declared free of encumbrance by the bank. 8. In the absence of any such pleading in the plaint and on the basis of the averments in the plaint as filed by the respondent No.1, I am of the considered opinion that the appellate Court could not have considered the subsequent events which were not part of the plaint for the purpose of deciding the matter under Order 7 rule 11 CPC. 9. In the circumstances, the impugned order passed by the appellate Court is set aside. However, it is made clear that the respondent No.1 may, if so advised, avail the liberty to file a fresh suit in respect of her right in the property. 9. In the circumstances, the impugned order passed by the appellate Court is set aside. However, it is made clear that the respondent No.1 may, if so advised, avail the liberty to file a fresh suit in respect of her right in the property. 10. With the aforesaid, the appeal stands disposed of.