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2023 DIGILAW 912 (RAJ)

Rajendra Baheti v. Quality Conduit Pvt. Ltd.

2023-04-24

PUSHPENDRA SINGH BHATI

body2023
ORDER : (Pushpendra Singh Bhati, J.) These writ petitions have been preferred claiming the following reliefs: S.B. Civil Writ Petition No. 906/2022: "It is therefore, humbly prayed on behalf of petitioner that this writ petition may kindly be allowed and a) By an appropriate writ, order or direction the order dated 22.10.2019 (anx-09) passed by the learned Additional District Judge No.4, Jodhpur Metro in the Original Suit no.31/2015 (NCV No.11628/2014) rejecting the application under Order 6 Rule 17 CPC (anx-07) filed by the petitioner deserves to be quashed and set aside and the application filed be allowed in toto as prayed. b) Any other writ, order or direction which as deemed just and proper by the Hon'ble Court in the facts and circumstances of the case may also kindly be passed in favour of the petitioners. c) The cost of the writ petition may kindly be awarded in favour of the petitioners." S.B. Civil Writ Petition No. 395/2014: "It is, therefore, most humbly and respectfully prayed that record of the case may kindly be called for and by an appropriate writ, order or direction; i. the proceedings pending before the learned Tribunal/respondent No.7 in pursuance of Misc. Application No.96/2013 (An.15); the order dated 18.12.2013 (An.16) and all the consequential proceedings, may be declared to be a nullity initiated on the strength of illegal and fraudulent MOU dated 06.10.2009 and as such same be quashed and set aside being vitiated by fraud; ii. it may be declared that the MOU dated 06.10.2009 (An.10) entered into by the respondents/Bank along with the respondent No.3 with that of the respondents No.4 to 6 is contemptuous, illegal and the respondent/Bank as well as the respondents No.3 to 6 be restrained from taking an undue advantage out of such illegal MOU either before this Hon'ble Court or before the learned Tribunal/respondent No.7; iii. alternatively the proceedings pending before the learned Tribunal/respondent no.7 may be ordered to be stayed till the final outcome of the Civil Original suit No.140/2010 (Rajendra Baheti v. Kwality Conduits Pvt. Ltd. & Ors.), pending consideration before the Court of learned Addl. District Judge No.5, Metropolitan, Jodhpur. iv. any other appropriate relief(s) which this Hon'ble High Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. District Judge No.5, Metropolitan, Jodhpur. iv. any other appropriate relief(s) which this Hon'ble High Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. v. writ petition of the petitioner may kindly be allowed with costs." S.B. Civil Writ Petition No. 1336/2022: "It is therefore, humbly prayed on behalf of petitioner that this writ petition may kindly be allowed and a) By an appropriate writ, order or direction the order dated 22.10.2019 (Anx.10) passed by the learned Additional District Judge No.4, Jodhpur Metro in the Original suit no.31/2015 (NCV No.11628/2014) rejecting the application under Order 1 Rule 10 CPC (Anx.08) filed by the petitioner deserves to be quashed and set aside. b) the application filed by the Petitioner-plaintiff, under Order 1 Rule 10 CPC (Anx.08), be allowed in toto as prayed for; c) Any other writ, order or direction which as deemed just and proper by the Hon'ble Court in the facts and circumstances of the case may also kindly be passed in favour of the petitioners; d) The cost of the writ petition may kindly be awarded in favour of the petitioners." 2. The facts averred in Writ Petition No.395/2014 are that two agreements had been entered between the petitioner and respondent no.3 on 16.10.2007 and 29.11.2007 pertaining to a property situated at B-21 and B-22 Industrial Area, Jodhpur (Rajasthan), ad-measuring, in total, 1198.16 Sq.Mts; out of which, against the strip of land ad-measuring 380.64 Sq. Mts., the petitioner paid Rs.8 Lacs as advance, out of Rs. 36,16,080 (agreement dated 16.10.2007). 2.1. Vide another agreement dated 29.11.2007, the respondent no.3 intended to agree to sell the land ad-measuring 817.58 Sq. Mts. (Mortgaged with the respondent-Bank), out of total land in question, for total consideration of Rs. 60,00,000/-. 2.2. However, both the agreements got merged and the petitioner paid Rs.26,50,000/- as advance, out of the total agreed amount i.e. 96,16,080/- with the condition that the respondent no.3 will pay the entire amount due to the respondent-Bank and will obtain the necessary NOC's accordingly. The petitioner paid Rs.17,62,000/- directly to the respondent-Bank by way of demand draft, as per the terms and conditions of the agreement dated 29.11.2007. 2.3. The petitioner paid Rs.17,62,000/- directly to the respondent-Bank by way of demand draft, as per the terms and conditions of the agreement dated 29.11.2007. 2.3. Subsequently, the petitioner came to know that the respondent-Bank had already the initiated the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'Act of 2002'), in respect of the properties in question. The respondent-Bank also moved an application before the learned Debt Recovery Tribunal (DRT), Jaipur, Rajasthan for obtaining the recovery certificate against respondent no.3 for an amount of Rs.3,40,4044/- in relation to the land in question; the learned DRT vide order dated 31.07.2000 issued the recover certificate. 2.4. Subsequently, the petitioner filed a suit for specific performance of the aforementioned agreements before the learned District Judge, Jodhpur; the said suit was transferred to the Court of learned Additional District Judge No.5 (ADJ), Jodhpur and registered as C.O. No.140/2010; the suit, as per the petitioner, is pending consideration till date. 2.5 In the said suit, the petitioner also filed an application under Order 39 Rules 1 & 2 CPC, bearing Civil Misc. Application No. 45/2010. The learned Court below on 14.09.2009 and 10.12.2009, passed the interim orders, whereby the respondent- Bank (defendant) and other defendants were restrained from alienating the property in question, and creating any third party rights therein. 2.6. In the meantime, the respondent-Bank entered into a Tripartite Agreement i.e. Memorandum of Understanding (MOU) dated 06.10.2009 with respondent nos. 4 to 6; second party in the said MOU was Smt. Laxmi (wife of the respondent no.3). 2.7. The respondent-Bank also filed an application under Order 7 Rule 11 CPC in the aforementioned suit; the said application came to be decided by the learned Court below vide order dated 17.04.2013, whereby though the prayer made for rejection of the suit was declined, but the name of the respondent-Bank was ordered to be deleted from the array of the defendants. 2.8. Subsequently, the respondent nos. 4 to 6 filed an application (registered as bearing Securitisation Application no. S.A. 63/2010) before learned DRT, Jaipur under Section 17(1) of the Act of 2002 read with Security Interest (Enforcement) Rules, 2002 against respondent-Bank and respondent no.3; however, the said application was dismissed vide order dated 24.07.2012. 2.8. Subsequently, the respondent nos. 4 to 6 filed an application (registered as bearing Securitisation Application no. S.A. 63/2010) before learned DRT, Jaipur under Section 17(1) of the Act of 2002 read with Security Interest (Enforcement) Rules, 2002 against respondent-Bank and respondent no.3; however, the said application was dismissed vide order dated 24.07.2012. Against the said order of dismissal, an appeal was preferred by the respondents no.4 to 6 before the learned Debts Recovery Appellate Tribunal, New Delhi, but the same was dismissed as withdrawn vide order dated 01.11.2013. 2.9. The respondent nos. 4 to 6 filed another Misc. Application (registered Misc. Application no.00/2013 in S.A. 63/2010) before the learned DRT, for execution of the sale certificate, but the said application was dismissed as withdrawn vide order dated 18.12.2013. 2.10. Subsequently, the respondent nos. 4 to 6 filed yet another application (registered as Application No.96/2013) before the learned DRT for getting the sale certificate executed on the strength of the impugned MOU dated 06.10.2009, wherein notices were issued vide the impugned order dated 18.12.2013, and the said application, as per the petitioner, is pending till date. 2.11. Thus, being aggrieved, amongst others, by the said impugned order dated 18.12.2013, the above-numbered Writ Petition No.395/2014 has been preferred, claiming the afore-quoted reliefs. 3. In Writ Petition No.395/2014, learned counsel for the petitioner submits that the respondent-Bank and other respondents entered into a Tripartite agreement in the form of MOU dated 06.10.2009, which is wholly against the provisions of the Act of 2002 and the Recovery of the Debts Due to Bank & Financial Institutions Act, 1993; therefore, the illegal agreement/MOU dated 06.10.2009 is liable to be declared null and void. 3.1. Learned counsel further submits that the respondents no.4 to 6 preferred the application before the leaned DRT on the strength of the said fraudulent agreement/MOU dated 06.10.2009, but the same has rightly been dismissed; thereafter, they filed another application on the very same grounds for getting the sale certificate executed; the said proceedings are clearly violative of the provisions of Section 13 of the Specific Relief Act, 1963. 3.2. 3.2. Learned counsel also submits that the agreements dated 16.10.2007 and 29.11.2007 came to be entered between the petitioner and respondent no.3 regarding the property in question and the petitioner also gave certain amount towards consideration; where after, on count of the subsequent events adversely affecting the rights and interests of the petitioner, he filed a suit for specific performance and permanent injunction of aforesaid agreements, which is still pending; therefore, the tripartite agreement between the respondents is highly illegal and not sustainable in the eye of law. 3.3. Learned counsel further submits that a sum of Rs, 17,62,000/- has been paid through cheques dated 16.10.2007, to the respondent-Bank by the petitioner towards mortgage of the property in question, which fact has been brought on record by way of the additional affidavit dated 21.01.2014; thus, in the said backdrop, the collusion, in the form of the MOU dated 06.10.2009 between the respondent-Bank and other respondents, is nothing, but an illegal act on their part. 3.4. Learned counsel for the petitioner also submits that in the aforementioned Civil Suit, the learned Court below passed the interim orders; even thereafter, the respondent no.3 introduced his wife and other relatives in agreement/MOU dated 06.10.2009, which is not sustainable in the eye of law. 3.5. In support of his submissions, learned counsel relied upon the judgement rendered by the Hon'ble Apex Bench in the case of Robust Hotels Private Limited & Ors. v. EIH Limited & Ors and another connected matter (2017) 1 SCC 622 . 4. On the other hand, Mr. Ravi Bhansali, learned Senior Advocate assisted by Mr. Dhanesh Saraswat, Mr. K.L. Khatri and Mr.Rishi Soni, appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submits that the respondent no.3 mortgaged the property with the respondent-Bank in the year 1987, and executed a loan agreement; whereupon, after default by the respondent no.3, the respondent-Bank filed the recovery suit before the District Court, Jodhpur on 10.12.1989, which was later on transferred to the learned DRT Jaipur. Thereafter, the learned DRT issued the recovery certificate bearing no.228/2020 on 31.07.2000 in the favour of the respondent-Bank. Thereafter, the learned DRT issued the recovery certificate bearing no.228/2020 on 31.07.2000 in the favour of the respondent-Bank. The Recovery Officer initiated the recovery proceedings and issued notice on 04.05.2001 under Rule 2 of Second Schedule of the Income Tax Act, 1961; therefore, as per the aforesaid Rule 2, the respondent no.3 could not have executed the agreements dated 16.10.2007 and 29.11.2007 with the petitioner; and thus, such aggrieved are void ab initio. 4.1. He further submits that in respect of the mortgaged property, the respondent-Bank issued a notice dated 11.07.2002 under Section 13 (2) under the Act of 2002, and also issued notice under Section 13 (4), (6) of the Act of 2002; the same have also been published in the newspapers. Therefore, it clearly reveals that the action of the respondent-Bank is justified in law. 4.2. He also submits that the respondent-Bank accepted the draft of a sum of Rs.17,62,000/- in view of the agreement dated 29.11.2007, and thus, the false and misleading averments have been made by the petitioner in this petition. 4.3. He further submits that the property in question was sold under the provisions of the Act of 2002 vide private treaty (MOU) dated 06.10.2009 and the same was well within knowledge of the petitioner, and the petitioner never challenged the validity of the said action taken by the Bank under the Act of 2002, before the competent Court. He also submits that the action of the respondent executing the MOU dated 06.10.2009 and transferring the property by way of said MOU under the Act of 2002 is legal and justified in law. 4.4. In support of such submissions, reliance has been placed on the following judgements: (a) Authorized Officer, State Bank of Travancore v. Mathew K.C. (2018) 3 SCC 85 ; (b) Union Bank of India v. Satyawati Tondon (2010) 8 SCC 110 ; (c) Authorised Officer, Indian Oversea Bank v. Ashok SAW Mill (2009) 8 SCC 366 ; (d) Jagdish Singh v. Heera Lal & Ors. (2014) 1 SCC 479 ; (e) Kanhailal Sachdev v. State of Maharashtra (2011) 2 SCC 782 ; (f) M/s Vikash Book Ltd. v. Bank of Baroda AIR 2012 Rajasthan 93; (g) K. Basavarajappa v. Tax Recovery (1996) 11 SCC 632 ; (h) Rajendra Kumar Gokharu v. State of Bank of India & Ors (S.B.C.W.P. No.2285/2022, decided by this Hon'ble Court on 22.02.2022); (i) Madhulika Singh v. State of Rajasthan & Ors. (D.B.S.A.W. No. 1658/2018 decided by a Division Bench of this Hon'ble Court on 29.10.2018); (j) Sampat Ram v. State of Rajasthan & Ors. (D.B.S.A.W. No. 1485/2018 decided by a Division Bench of this Hon'ble Court on 30.10.2018); (k) Rajendra Kumar Agarwal v. Dewan Housing Finanace Co. (S.B.C.W.P. No. 13115/2018 decided by this Hon'ble Court on 04.09.2018); (l) M/s G.N. Enterprises Putholi v. State Bank of Bikaner & Ors. (S.B.C.W.P. No. 14669/2015 decided by this Hon'ble Court on 20.08.2018); (m) State of Bank v. Allwyn Alloys Pvt. Ltd. & Ors (Civil Appeal No. 5248/2018 decided by the Hon'ble Apex Court on 17.05.2018); (n) M/s Sree Anandhakumar Mills v. M/s Indian Overseas Bank & Ors (Civil Appeal No. 7213/2012 decided by the Hon'ble Apex Court on 03.05.2018); 5. However, apart from the afore-projected common factual matrix, the marginal variation, as pleaded in the above-numbered S.B. Civil Writ Petition No. 906/2022 and S.B. Civil Writ Petition No. 1336/2022, is that the petitioner filed the applications under Order 6 Rule 17 CPC along with section 151 CPC and Order 1 Rule 10 CPC along with section 151 CPC in Original Suit No. 31/2015 (N.C.V No. 11628/2014), stating therein that during pendency of the proceedings in the aforementioned suit, certain subsequent events took place, and therefore, the amendment in the suit was necessary, and also, the respondent- Bank and other respondents are required to be impleaded as party in the aforementioned suit; but the learned court below vide the common order dated 22.10.2019 impugned herein, rejected the both applications. 5.1. In Writ Petition No. 906/2022, learned counsel for the petitioner submits that during pendency of the suit, the aforementioned agreement/MOU dated 16.10.2009 was executed between the respondents, and also, at that time, the interim order dated 10.12.2009 was operating, and thus, the respondent-Bank was under prohibition to put the property in question to sale. 5.1. In Writ Petition No. 906/2022, learned counsel for the petitioner submits that during pendency of the suit, the aforementioned agreement/MOU dated 16.10.2009 was executed between the respondents, and also, at that time, the interim order dated 10.12.2009 was operating, and thus, the respondent-Bank was under prohibition to put the property in question to sale. Therefore, in such circumstances, the subsequent developments, which have taken place, were required to be incorporated in the pleadings of the suit, by way of making amendment in the suit; however, the learned court below vide the impugned order, declined the same. 5.2. In Writ Petition No. 1336/2022, learned counsel for the petitioner submits that a fresh cause of action has arisen due to the aforesaid agreement/MOU, and therefore, the respondent- Bank and other respondents were necessary parties for the adjudication effective and fair adjudication in the suit. 5.2.1 He further submits that the respondents in collusion have put the proper to sale, that too, for a much lesser money consideration; therefore in such circumstances, the impleadment of the respondents was necessary. 6. On the other hand, learned Senior counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submits (in S.B. Civil Writ Petition No. 906/2022) that the aforesaid agreement MOU dated 06/16.10.2009 has been executed between the respondents under the Act of 2002; after the execution of the said agreement, the respondent-Bank, many-a-times intimated the petitioner regarding the aforesaid agreement. 6.1. He further submits that the respondent-Bank filed a reply to the application under section 151 CPC on 10.12.2009, wherein it was clearly stated that the mortgaged property has been sold by respondent-Bank through agreement/MOU dated 06/16.10.2009 to the other respondents, in accordance with the provisions of the Act of 2002. Therefore, the application under Order 6 Rule 17 CPC filed by the petitioner is nothing, but only an abuse of the process of Court, so as to cause delay in the proceedings. 6.2. In Writ Petition No. 1336/2022, learned counsel submits that the respondent-Bank filed an application under Order 7 Rule 11 CPC before the learned Court below, whereupon vide order dated 17.04.2013, the name of the respondent-Bank was ordered to be deleted from the array of the defendants, in the suit. Therefore, the application under Order 1 Rule 10 CPC filed by the petitioner on the very same grounds deserved dismissal. Therefore, the application under Order 1 Rule 10 CPC filed by the petitioner on the very same grounds deserved dismissal. He also submits that the impleadment application filed by the petitioner, is nothing but an attempt to mislead the Court, as the petitioner himself has not disclosed the material facts relevant to the present case. 7. Heard learned counsel for the parties as well as perused the record of the case along with judgements cited at the Bar. 8. As regards Writ Petition No.395/2014, this Court observes that both the agreements therein were executed between the petitioner and the respondent no.3; the agreements were merged, whereupon the petitioner paid an amount of Rs.26,50,000/- as advance to the respondent no.3, out of the total agreed sum i.e. Rs.96,16,080/- with condition that the respondent no.3 will pay the entire amount due to the respondent-Bank and will obtain the necessary NOC's. 8.1 The petitioner filed a suit for specific performance of the aforesaid agreement along with an application under Order 39 Rule 1 & 2 CPC, wherein the learned Court below passed the two interim orders, while the suit, as informed by the petitioner, is still pending. However, in the said suit, the learned Court below has passed the interim orders dated 14.09.2009 & 10.12.2009, whereby the respondent No.3 was restrained from selling the property in question, till further orders which were to be passed by the learned Court below in the said suit. 8.2. This Court further observes that the tripartite agreement/MOU dated 06/16.10.2009 executed between the respondent-Bank and the other respondents i.e. (i) Smt. Laxmi (ii) Mambood Beg (iii) Naveen Gupta, and that, one of the parties, in the said agreement was wife of the respondent no.3, putting the property in question to sale, despite the aforementioned interim restraint imposed by the learned Court below, on such sale. 8.3. This Court further observes that on one hand, the respondent no.3 entered into an agreement in regard to the sale of the property in question with the petitioner, while on the other, the wife of the respondent No.3, along with others, entered into the tripartite agreement regarding sale of the same property in question. 8.3.1. 8.3. This Court further observes that on one hand, the respondent no.3 entered into an agreement in regard to the sale of the property in question with the petitioner, while on the other, the wife of the respondent No.3, along with others, entered into the tripartite agreement regarding sale of the same property in question. 8.3.1. It is also noted by this Court that the said tripartite agreement was executed after imposition of the aforementioned interim restraint by the learned Court below, and thus, the said agreement was a clear non-compliance of the interim orders passed by the learned Court below in the suit for specific performance; furthermore, such tripartite agreement was entered behind the back of the petitioner, and therefore, the said agreement is unsustainable in the eye of law. 9. As regards S.B. Civil Writ Petition No. 906/2022, this Court observes that the suit for specific performance instituted by the petitioner is already pending trial before the learned court below; in the said suit, as mentioned above, interim orders were passed by the learned court below, putting a restraint over the sale of the property in question, till further orders. Thus, at this stage, if the amendment so sought is allowed to be incorporated, then the same would change the entire nature of the suit, which cannot be permissible, looking to the stage at which the suit is proceeding; the amendment so prayed is also not permissible as the same would defeat the whole purpose of the Specific Relief Act, 1963 (as amended in 2018). 9.1 This Court further observes that the aforesaid agreement in question was executed in the year 2009 and the application has been filed after a delay of almost 4 years. The learned Court below passed the impugned order dated 22.10.2019 after considering the material on record and evidence place on record before it, which is perfectly justified in law. 10. In S.B. Writ Petition No. 1336/2022, this Court observes that the petitioner filed an application under Order 1 Rule 10 CPC along with section 151 CPC for impleadment of the respondents as party defendants in the aforementioned suit. 10. In S.B. Writ Petition No. 1336/2022, this Court observes that the petitioner filed an application under Order 1 Rule 10 CPC along with section 151 CPC for impleadment of the respondents as party defendants in the aforementioned suit. 10.1 This Court also finds that the respondent-Bank filed an application before the learned Court below under Order 7 Rule 11 CPC seeking rejection of the suit instituted by the petitioner, the same has been partly allowed vide order dated 17.04.2013, whereby the learned Court below ordered deletion of the name of the respondent-Bank from the array of the defendants in the aforementioned suit. Therefore, the name of the respondent-Bank, once already ordered to be deleted as party, after considering the overall facts and circumstances of the case, there is no justifiable reason to implead the respondent-Bank again as party in the suit. 10.2. This Court also observes that looking to the purpose of filing of the suit i.e. agreements dated 16.10.2007 and 29.11.2007 entered between the petitioner and the respondent no.3, and that, the respondent no.3 was already there as party defendant, the other respondents, including the respondent-Bank, are also not the necessary parties in the suit; more particularly, when the suit can be effectively adjudicated in the presence of both the necessary parties, i.e. petitioner and the respondent no.3, before the learned court below. 11. In light of the aforesaid observations and looking into the factual matrix of the present case, S.B. Writ Petition No. 395/2014 is allowed, and accordingly, the Misc. Application No. 96/2013 (Anne.15) pending before the learned DRT, Jaipur/respondent no.7 is dismissed, while quashing and setting aside the impugned order dated 18.12.2013 (Anne.16) passed by the learned DRT, Jaipur/respondent no.7; consequently, the agreement/MOU dated 06.10.2009 in question is declared as null and void. 11.1. However, for the reasons recorded above, S.B. Writ Petition No.1336/2022 and S.B. Writ Petition No. 906/2022 are dismissed. 11.2. All pending applications stand disposed of.