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Gauhati High Court · body

2018 DIGILAW 127 (GAU)

Satya Megha Industries v. Punjab National Bank

2018-01-24

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. S.P. Roy, learned counsel for the petitioners. Also heard Mr. A. Ganguly, learned counsel for the respondents. 2. By this application under Section 115 read with Section 151 CPC, the petitioners assail the order dated 5.9.2017 passed by the learned District Judge, Kamrup, Guwahati in Transfer Misc. Case (C) No. 14/2017 rejecting the application filed by the petitioner praying for transfer of Title Suit No. 520/2016 along with Misc. (J) Case No. 805/2016 from the court of the learned Civil Judge, No. 3, Kamrup(M) to any other competent court of law. 3. The petitioners, on 15.12.2016 had filed the aforesaid Title Suit No. 520/2016 praying for the following reliefs: "1. Declaration that total alleged claimed of Rs. 32,57,26,084.02 (Rupees thirty two crores fifty seven lakhs twenty six thousand eighty four and two paise only) shown by the defendant bank against the plaintiffs, is incorrect, illegal and not legally recoverable debt and said demand is the result of fraud; 2. Declaration that the classification of the C.C. Account Nos. 018900870000880 and 1201008700002212, Term Loan I Account No. 018900IC00990251, Term Loan II Account No. 018900IC00990367, WCTL Account No. 018900IC00990659, FITL Account No. 018900IC00990668 as Non Performing Asset on 31.3.2016 by the defendants is illegal, against the R.B.I. Guidelines, forged, fraud, manipulated, concocted with oblique motive and null and void; 3. Declaration that the entire SARFAESI proceeding initiated by the defendant Bank is illegal, null and void, fraudulent, capricious, malicious, inadmissible and void ab-initio and based on fraud; 4. Declaration that the notice dated 4.7.2016 issued under Section 13(2) of the SARFAESI Act by the defendant No. 2 is illegal, fraudulent, malicious, inadmissible, not binding upon the plaintiffs and void ab-initio; 5. Declaration that possession Notice dated 15.9.2016 and 16.9.2016 are illegal, null and void, fraudulent, malicious, inadmissible and null and void; 6. Declaration that the defendant Bank has no right to take any actions including actions under the SARFAESI Act action against the properties described in the Schedules A and B below on the strength of forged, inadmissible, manipulated statement of accounts, illegal declaration of the accounts of the plaintiff as NPA; 7. Declaration that the statement of accounts maintained by the defendant Bank in respect of C.C. Account Nos. Declaration that the statement of accounts maintained by the defendant Bank in respect of C.C. Account Nos. 0189008700008801 and 1201008700002212, Term Loan I Account No. 018900IC00990251, Term Loan II Account No. 018900IC00990367, WCTL Account No. 018900IC00990659, FITL Account No. 018900IC00990668 are illegal, incorrect, null and void, fraudulent, capricious, malicious, inadmissible and manipulative and not binding upon the plaintiffs; 8. Permanent injunction restraining the defendants, their employees, agents, workers and associates, personnel or anyone claiming through the defendants from entering upon the immovable properties described in the Schedules A and B below and taking over the forceful actual physical possession of the properties mentioned in the Schedules A and B below and also from encumbering, alienating and changing the nature and character of the said properties as described in the Schedules A and B below in any manner. 9. Cost of the suit. 10. Any other relief(s) as may deem fit and proper." 4. Along with the suit, the plaintiffs had also filed an application under Order 39 Rule 1 and 2 read with 151 CPC, which was registered as Misc. (J) Case No. 805/2016, praying for an injunction restraining the defendants, their employees, agents, workers, etc. from entering and taking forceful possession of immovable properties described in Schedule A and B of the petition and from encumbering/alienating/changing the nature and character of Schedule A and B properties. 5. The learned Civil Judge, No. 3 by his order dated 15.12.2016 in Misc. (J) Case No. 80/2016 passed an order of maintenance of status quo with respect to possession of Schedule A and B property till the returnable date, which was fixed on 21.12.2016 for service report and objection. The defendant Nos. 1, 2, 3 and 4 filed written statement on 11.1.2017 along with the written objection to the application for injunction. The defendants also filed an application under Order 7 Rule 11(d) CPC for rejection of the plaint and the said petition was registered as Misc. (J) Case No. 49/2017. Subsequently, a petition was filed under Section 151 CPC by the plaintiff, registered as petition No. 1227/2017 for recalling the earlier orders recording appearance of defendants and to proceed with the suit ex parte, discarding the written statement, written objection as well as petition for rejection of plaint on the ground of the same having been filed by an unauthorised person. It also appears from the said petition that some objection was raised by the plaintiffs as a result of which vakalatnama was filed on that date by defendant No. 2. 6. By an order dated 21.4.2017, the petition No. 1227/2017 was rejected and the petition for rejection of the plaint was fixed for further hearing on 26.4.2017. 7. A perusal of the order dated 3.5.2017 goes to show that the plaintiffs had sought for adjournment on 26.4.2017 in respect of hearing of the petition under Order 7 Rule 11 CPC. On 3.5.2017, plaintiff filed a petition for adjournment being Petition No. 1548/2017. 8. The learned trial court rejected petition No. 1548/2017 praying for grant of adjournment holding that the plaintiffs are deliberately trying to delay disposal of the petition under Order 7 Rule 11 CPC. 9. Another petition being petition No. 1538/2017 was filed by the petitioner No. 2 herein (though wrongly typed by the petitioners at page 180 as Petition No. 1539/2017) stating that he intends to file transfer petition. The learned trial court had rejected the said petition also. 10. The learned trial court, while fixing the case for necessary order on the petition for rejection of plaint, also provided that the learned counsel for the plaintiffs may argue the case before the next date fixed, which was 20.5.2017. 11. It appears that the plaintiffs had filed a petition bearing No. 1842/2017 on 19.5.2017 for review of the order dated 21.4.2017. On that very date i.e. on 19.5.2017, the petitioners also filed an application under Section 24 CPC read with Section 151 CPC for transfer of the suit, as noted earlier, which was registered as Transfer Misc. case (Civil) No. 14/2017 in the court of the learned District Judge, Kamrup(M). An objection was filed to the said petition by the defendants. The said transfer petition was rejected by order dated 5.9.2017. 12. Mr. Roy has drawn the attention of the court specifically to paragraphs 8, 9, 14, 16 and 17 of the transfer petition to contend that the petitioners have reasonable apprehension that the petitioners will not get fair justice in the court of the learned Civil Judge, No. 3 Kamrup (M) and therefore, it is a fit case for transfer of the aforesaid case to any other court of competent jurisdiction. He has further submitted that the learned District Judge had failed to take notice of the fact that the petitioners had filed a review application against the order dated 21.4.2017. It is pointed out by him that the review petition was dismissed vide order dated 20.5.2017. He places reliance on the judgment of the Supreme Court in the case of Manak Lal v. Dr. Prem Chand, reported in AIR 1957 SC 425 , with particular reference to paragraph 4 thereof. 13. Mr. A. Ganguly has drawn the attention of the court to the objection filed to the aforesaid transfer petition with particular emphasis on the stand taken by the defendants at paragraphs 8, 9, 14, 16 and 17 in respect of paragraphs 8, 9, 14, 16 and 17 of the transfer petition. He submits that only in order to frustrate disposal of the application under Order 7 Rule 11 CPC, the transfer petition was filed with allegations which are not at all substantiated. He has further submitted that omnibus allegations have been made without material particulars. He has also submitted that entertainment of the petition by this Court will lead to failure of administration of justice. He has placed reliance on the case of Usmangani Adambhai Vahora v. State of Gujarat & ors., reported in (2016) 3 SCC 370 . 14. I have considered the submission of the learned counsel for the parties and have perused the materials on record. 15. At the very outset, it will be appropriate to take note of paragraphs 8, 9, 14, 16 and 17 of the transfer petition as well as the reply to these paragraphs in the objection petition contained in paragraphs 8, 9, 14, 16 and 17 of the objection, which are as under: Transfer Petition "8. That it is respectfully submitted, that the petitioners had seen the panel Advocates of the Punjab National Bank, on several occasions sitting inside the chamber of Ld. Civil Judge No. 3, Kamrup (M), Guwahati, for hours together, after hearing of the case, and even the Chief Manager, of the defendant Bank, have been sitting in the court room, without there being any case fixed. 9. That the petitioners have also came to know, that the Ld. Civil Judge No. 3, Kamrup (M), Guwahati, for hours together, after hearing of the case, and even the Chief Manager, of the defendant Bank, have been sitting in the court room, without there being any case fixed. 9. That the petitioners have also came to know, that the Ld. Civil Judge No. 3, Kamrup(M), Guwahati, is intended to buy a flat and for that purpose is intending to apply for housing loan and the Punjab National Bank are offering housing loan at a very low interest rate to the Ld. Civil Judge No. 3, Kamrup(M), Guwahati, on consideration of matter pending against the Punjab National Bank, to be decided in favour of the Bank. XXXXXX XXXXXX 14. That from the aforesaid conduct of the Ld. Civil Judge No. 3, Kamrup (M), Guwahati, it is apparent that the Ld. Civil Judge No. 3, Kamrup(M), Guwahati had made up his mind to reject the plaint of the petitioners, without granting any reasonable opportunity of being heard and even if the petitioners are heard, then the hearing will only be in name, as on other consideration as stated above having direct interest in the subject matter in interest as well as in other cases wherein the Punjab National Banks are involved, the Ld. Civil Judge No. 3, Kamrup(M), Guwahati is taking key interest in disposing of the cases, without considering the merits of the case and the submission of the concerned petitioners, by adopting choose and pick policy in such a manner that the case was relied upon by the petitioners are either not cited in the orders or even cited not at all discussed. XXXXXX 16. That it is further relevant to state, that on 03.05.17, when the petitioners had filed an application praying before the Ld. Civil Judge No. 3, Kamrup (M), Guwahati not to take up the matter, then in absence of the learned counsel for the petitioners made a remark in open court" in view of the fact that I am going to reject the plaint they have filed this petition", such observation of the Ld. Civil Judge, No. 3, Kamrup(M), Guwahati in the open Court, shows his biased attitude towards the subject matter and his direct interest. 17. That it is further respectfully submitted, that on 26.04.17, when the learned counsel for the petitioners, had went to the court at 10.30 am, when the Ld. Civil Judge, No. 3, Kamrup(M), Guwahati in the open Court, shows his biased attitude towards the subject matter and his direct interest. 17. That it is further respectfully submitted, that on 26.04.17, when the learned counsel for the petitioners, had went to the court at 10.30 am, when the Ld. Court had not presided over, but surprisingly the peon informed the learned counsel for the petitioners, that the matter will be taken after 12.30 p.m., being amazed and surprise as in view of the fact when till 10.35 a.m., the Ld. Court had not presided over how that case was directed to be taken up at 12.30 p.m., then the concerned peon further informed, that the Ld. Counsel for the defendants had requested for the same by going inside that chamber of the Ld. Civil Judge, No. 3, Kamrup(M), Guwahati before 10.30 a.m., which further shock the petitioners, and give a reasonable apprehension that if the matter is taken up and decided by Ld. Civil Judge No. 3, Kamrup(M), Guwahati, then the petitioners will not get fair justice, as the case is being run at the whims and desire of the opposite parties." Written Objection 8. That the contents of the para 8 under reply are strongly denied by the Opp. Parties and the same are false, misconceived and baseless. The petitioners have not named as to which of the panel Advocates of the Bank are found to be sitting inside the chamber of the Ld. Civil Judge No. 3. Further, the Chief Manager referred to in this para, has never visited the court room in connection with this or any other case. Even if one were to assume that the said Chief Manager is sitting in the Court room, what apprehension can it create in the minds of the Petitioners is for them to answer. 9. That the contents of the para 9 under reply are strongly denied by the Opp. Parties and the same are false, misconceived and baseless. The allegations made herein are strongly condemned and deprecated. It is a result of the immensely fertile imagination of the petitioners and their learned counsel, who are trying every trick in the book to keep the injunction order continuing in perpetuity. The Ld. Judicial officer has neither expressed intention nor there has been discussion, formal or otherwise of any such proposal. It is a result of the immensely fertile imagination of the petitioners and their learned counsel, who are trying every trick in the book to keep the injunction order continuing in perpetuity. The Ld. Judicial officer has neither expressed intention nor there has been discussion, formal or otherwise of any such proposal. Even the allegation that a senior Judicial Officer can agree to decide a case in a particular manner, in consideration of getting a loan sanctioned at low rates, is preposterous and ridiculous, and amounts to insulting the entire Judiciary. XXXXXX XXXXXX 14. That the contents of the para 14 under reply are strongly denied by the Opp. Parties except whatever is borne out by the record. All the allegations against the Ld. Judicial Officer and the opp. Parties are strongly denied and deprecated in the strongest terms. The decision of a case depends almost entirely on the merit of the case. The petitioner had no grievance against the same Judicial Officer when he granted ex parte interim order of Injunction in their favour, which continues till date. The petitioners have made these allegations of direct interest etc., only to mislead this Hon'ble Court and to frustrate and delay the entire proceeding. If the litigants were to be allowed to file transfer petitions on the apprehension that they will be unsuccessful in a case, then the transfer petitions will be filed in every case. The entire judicial system will collapse due to the so called apprehensions of defeat of the litigants. XXXXXX 16. That the contents of the para 15 under reply are strongly denied by the Opp. Parties, except whatever is borne out by the record. It is denied that any such remark was made in the open Court as alleged. The petitioners have not specifically named as to in whose presence that said remarks were made by the Ld. Judicial Officer. It is denied that there is any bias or direct interest as alleged by the Petitioners. 17. That the contents of the para 17 under reply are strongly denied by the Opp. Parties, except whatever is borne out by the record. It is denied that any such request for taking up the case late was made in chamber as alleged by the counsel for the defendants. 17. That the contents of the para 17 under reply are strongly denied by the Opp. Parties, except whatever is borne out by the record. It is denied that any such request for taking up the case late was made in chamber as alleged by the counsel for the defendants. The petitioners should have also filed an affidavit of the relevant court peon who is said to have provided them this information. It is a settled practice that any request for accommodation of time is made in the open court, because it is a matter of convenience and nothing else. It does not, and need not, involve any secrecy." 16. In the transfer petition, apart from the aforesaid paragraphs, the petitioners have also questioned the order dated 21.4.2017 and the order dated 3.5.2017 whereby the application for rejection of the plaint was heard in absence of the counsel of the plaintiffs. The learned District Judge in the order under assailment had observed as follows: "The present opposite parties, being the petitioners, prayed for rejection of the plaint on the ground that there is complete ouster of jurisdiction of the Civil Court u/s. 34 of the SARFAESI Act. The petitioners also stated that there was efficacious remedy available in the SARFAESI act itself and no Civil Court has the power to issue injunction in respect of all such disputes which have already arisen, or are likely to arise, within the cognizance of the DRT or the appellate Tribunal. It is also stated that the ouster of jurisdiction of the Civil Court u/s. 34 of the SARFAESI Act is very wide and admits no exceptions. It transpires that the learned Trial Court passed the ad interim ex parte injunction, against action of the opposite parties u/s. 13 (4) of the SARFAESI Act. Thus, the opposite parties have reason to file the petition for rejection of the plaint. The hearing of the same was required to be expedited, because the learned Trial Court had issued an order granting ex parte injunction which was also required to be disposed off within 1 month. Since that time of 1 month period was over, the learned Trial Court did not do any wrong in trying to expedite the hearing on the prayer for rejection of plaint at first. The other allegations, made in the petition for transfer remained unsubstantiated. Since that time of 1 month period was over, the learned Trial Court did not do any wrong in trying to expedite the hearing on the prayer for rejection of plaint at first. The other allegations, made in the petition for transfer remained unsubstantiated. The learned counsel for the opposite parties rightly pointed out that mere apprehension that it would not get the justice is not sufficient for transfer of a case from a court of law. The apprehension must be reasonable. Merely because the learned trial court passed an order, rejecting a petition of the present petitioners, it cannot be held that he was bias otherwise. Even in the last order, when the learned Trial Court heard the argument of the petitioners of that Misc. Case, the court left a space for argument by the learned counsel for the opposite parties (present petitioners) of that Misc. Case. The action of the learned court below does not show that it was bias towards a particular party. Rather, it is seen that although challenge was made in the original suit as well as, in the injunction petition against the action of the concerned Bank u/s. 13 (4) of the SARFAESI Act, the learned Trial Court granted an ex parte ad interim injunction. In view of the discussions made above, I find that the present petitioners could not establish any ground for transfer of the case from the court of learned Civil Judge No. 3, Kamrup (M), Guwahati and accordingly the prayer stands rejected. The instant Misc. Case is accordingly dismissed, on contest, however, without any cost." 17. The facts in Manak Lal (supra) in a nutshell were as follows - Manak Lal was an advocate against whom a complaint was lodged under Section 13 of the Legal Practitioners Act by one Dr. Premchand Singhvi. The tribunal, which was constituted by the Chief Justice of the High Court of Rajasthan held Manak Lal guilty of professional misconduct. The chairman of the Tribunal was one Sri Chhangani. The said Sri Chhangani was a counsel who appeared for the other side in respect of the proceeding out of which the complaint case was filed. Premchand Singhvi. The tribunal, which was constituted by the Chief Justice of the High Court of Rajasthan held Manak Lal guilty of professional misconduct. The chairman of the Tribunal was one Sri Chhangani. The said Sri Chhangani was a counsel who appeared for the other side in respect of the proceeding out of which the complaint case was filed. In paragraph 4, the Supreme Court had stated that the test is not whether in fact a bias has affected the judgment; the test always is whether a litigant could reasonably apprehend that a bias attributable to a member might have operated against him in the final decision of the tribunal. The Supreme Court did not accept the arguments advanced on behalf of the appellant as it was not the case of the appellant that Sri Chhangani actually was biased against the appellant and that the said bias was responsible for the final report made against the appellant. 18. In Usmangani (supra), the Apex Court had stated that seeking transfer at the drop of a hat is inconceivable and that an order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. 19. Mere allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. A person is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension. 20. Coming to the allegations made by the petitioners in the transfer petition, it is seen that the petitioners have not stated who are the panel advocates who were found sitting inside the chamber of the learned Civil Judge, No. 3, Kamrup(M) for hours together. If the Chief Manager of the defendant Bank had been sitting in the court room without there being any case fixed, on what basis the petitioners came to learn about his presence because in that case the petitioners should have also not been present. Regarding the allegation that the Presiding Officer is trying to favour Punjab National Bank in anticipation of grant of loan at a lower rate of interest, less said the better. Regarding the allegation that the Presiding Officer is trying to favour Punjab National Bank in anticipation of grant of loan at a lower rate of interest, less said the better. It is a figment of imagination and a mercurial allegation in an attempt to browbeat the judicial officer as such statement is made without semblance of any proof solely on the basis of purported knowledge of the petitioners. It is very easy to make these kind of wild allegations. The allegations in paragraph 16 are also without any corroboration and it not even mentioned in whose presence such utterances were made. Petitioners did not claim that any of their representatives were present on that day. With regard to the allegations at paragraph 17 also the petitioners have not disclosed the name of the peon from whom such information was obtained. I agree with the submission of Mr. Ganguly that the petitioners have made omnibus allegations without any substance and basis. Based on these kind of allegations, apprehension of the petitioners that they will not get justice in the particular court cannot be entertained. 21. It must not be forgotten that the petitioners are enjoying an ex parte injunction order for more than a year. As the trial court had stayed the injunction proceeding till such time application under Order 7 Rule 11 CPC is decided, the injunction proceeding is yet to be decided. When the very same Judicial Officer had passed the ex parte injunction order, all was well with the petitioners, but as he tried and attempted to dispose of the application under Order 7 Rule 11 CPC, the petitioners raised unfounded allegations against him. 22. Having regard to the materials on record, I am of the considered opinion that no case is made out for interference with the impugned order and accordingly, the petition is dismissed.