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2018 DIGILAW 566 (HP)

Charan Dass v. Anil Dogra

2018-04-07

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present application, under Order 39, Rules 1 & 2, read with Section 151 of the Code of Civil Procedure, is maintained by the applicants/respondents No. 1 to 14, for staying the proceedings with regard to the auction of the property, measuring 320-85 square meter, comprised of Khata No. 461, Khatauni No. 1369, Khasra No. 40/2, as per Jamabandi of the year 1997-98. As per the applicants, the controversy involved in the present matter is regarding declaration claiming to be the owner-in-possession of the land, measuring 320-85 square meter and sale deed in favour of the non-applicant/appellant (Anil Dogra) is illegal, void and inoperative and against the rights of the applicants. It has been averred that after the purchase of the aforesaid land by the appellant/non-applicant, he created an equitable mortgage of this properties, including the land in reference and raised the facility of loan. The present appellant/non-applicant defaulted the payment of loan, which resulted into the proceedings at the instance of State Bank of India, for the recovery of the amount by way of sale of his properties. It has been further averred that at this stage, the applicants are only concerned with the land, comprised in Khasra No. 40/2, measuring 320-85 square meter, qua which the sale deed in favour of the appellant/non-applicant has been set aside. After setting aside of the sale deed, the appellant/non-applicant is left with no title of this land nor he can legally created a mortgage in favour of the State Bank of India for obtaining loan and creation of mortgage in favour of the bank cannot take away the rights of the applicants, as has been adjudicated upon by both the learned Courts below. Further non-applicant/State Bank of India has also no right to acquire or auction this particular land under the garb of the other land, which is subject matter of the mortgage and in case the Bank is not restrained from auctioning the land, measuring 320-85 square meter, the judgments passed by both the learned Courts below would stand nullified, without there being any adjudication by this Hon’ble Court. Hence, the present application may be allowed and non-applicant/Bank may be restrained from auctioning of the land, measuring 320-85 square meter, comprised in Khasra No. 40/2, till the decision of the main appeal. The application is duly supported with an affidavit. Hence, the present application may be allowed and non-applicant/Bank may be restrained from auctioning of the land, measuring 320-85 square meter, comprised in Khasra No. 40/2, till the decision of the main appeal. The application is duly supported with an affidavit. No reply to the application has been filed. 2. Mr. N.K. Thakur, learned Senior Counsel appearing on behalf of the applicants, has argued that the auction of land of the applicants is required to be stayed, as the same does not belong to the person, who mortgaged the land. In support of his contentions, learned Senior Counsel has placed reliance upon the decisions of Hon’ble Supreme Court in Harshad Govardhan Sondagar vs. International Assets Reconstruction Company Limited and others, (2014) 6, SCC 1 and Vishal N. Kalsaria vs. Bank of India and others, (2016) 3, SCC 762. 3. On the other hand, Ms. Soma Thakur, Advocate, for the non-applicant/appellant has argued that the land belongs to the appellant, has rightly been mortgaged by him and he is likely to succeed in the appeal. 4. Mr. Arvind Sharma, Advocate, for the non-applicant/ Bank has vehemently argued that this Court has no jurisdiction to stay the proceedings. He has placed reliance upon Sections 17, 34 & 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest, Act, 2002 (hereinafter to be called as “SARFAESI Act”). 5. From the record it is clear that there was sale deed in favour of the appellant/non-applicant and on the basis of that, the land was mortgaged with the bank and the applicants, can always recover the damages from the non-applicant/appellant for his act in mortgaging the land with the bank, if ultimately they succeed in the present regular second appeal. 6. Coming to the judicial pronouncements, relied upon by the learned Senior Counsel (supra), the same are not applicable to the facts of the present case, as in Harshad Govardhan Sondagar vs. International Assets Reconstruction Company Limited and others case, the rights of lessee were protected, however the facts of the present case are totally different. Similarly, the decision rendered by the Hon’ble Supreme Court in Vishal N. Kalsaria vs. Bank of India and others case, is also not applicable to the facts of the present case, as the applicants are not tenant in the demised premises and their status cannot be taken as tenant. 7. Similarly, the decision rendered by the Hon’ble Supreme Court in Vishal N. Kalsaria vs. Bank of India and others case, is also not applicable to the facts of the present case, as the applicants are not tenant in the demised premises and their status cannot be taken as tenant. 7. Now coming to the arguments of learned counsel for the non-applicant/Bank that the Civil Court has no jurisdiction, it is apt to consider Sections 34 and 35 of the SARFAESI Act, which reads as under: “34. Civil Court not to have jurisdiction- No civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). 35. The provisions of this Act to override other laws- The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. The plain reading of aforesaid Sections show that the applicants if have any remedy, that does not lie with the Civil Court. 8. The net result of the above discussion is that the land, which was mortgaged with the Bank at that time, was in the name of the present appellant/non-applicant and was rightly mortgaged with the Bank and at this stage, the auction proceedings cannot be stayed. The applicants if have any cause against the appellant/non-applicant, they can recover the damages, if ultimately they succeed in the appeal. 9. Accordingly, the present application, which is devoid of merits, deserves dismissal and is dismissed.