Makineni Madhuri vs Bollu Nagabhushanam And Ors. on 23 September, 2005

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Andhra High Court
Makineni Madhuri vs Bollu Nagabhushanam And Ors. on 23 September, 2005
Equivalent citations: 2006 (2) ALD 476, 2006 (2) ALT 191
Author: A G Reddy
Bench: A G Reddy


ORDER

A. Gopal Reddy, J.

1. When the vacate stay petition is taken up for hearing, learned Counsel for the parties requested to dispose of the main appeal itself and argued accordingly.

2. The appellant/plaintiff preferred this appeal against the order of dismissal dated 7-12-2004 passed in I.A.No. 2019 of 2003 in O.S. No. 289 of 2003 by the learned Additional Senior Civil Judge, Eluru.

3. The appellant/plaintiff filed the above suit for partition of plaint schedule properties into 12 equal shares and allotment of one such share to her, for separate possession of the same and for mesne profits from the date of the suit till the date of delivery. The 1st defendant is her grand father, the 2nd defendant is her Senior Paternal Uncle, 3rd and 9th defendants are her parents, defendants 4 to 6 are her cousins and defendants 7 and 8 are her sisters. It is her case that the 1sl defendant, who inherited few acres of land and developed an estate consisting of several properties purchased in the name of the co-parceners out of the funds of Joint Hindu Family, sold the land admeasuring Ac.1-13 3/5 cents in Survey No. 311/2 and also Ac.4-80 cents in Survey Nos. 294/6 and 294/3 at Pidaparru Village, through registered sale deeds dated 7-6-1954 and 29-11-1954 for a valid consideration of Rs. 4,500/- and Rs. 16,500/-respectively. With the said amount, he purchased items 1 to 4 (agricultural lands) as mentioned in para 8 of the plaint. The said properties are joint family properties. Thereafter, defendants 1 to 3 sold away an extent of agricultural land admeasuring Ac.1-41 cents in Survey Nos. 302/A/1 and 302/A/2 and also another extent of land admeasuring Ac.2-47 cents in Survey Nos. 299/2, 302/A/1 and 302/A/3 situated at Pidaparru Village, through registered sale deeds dated 19-4-1972. Further, the 1st defendant purchased 540 sq. yards of site with building, item No. 5 of the Plaint Schedule, in the name of the 3rd defendant, modified the same and let out to the Indian Bank branch. Gradually, he constructed three floors on the existing building and let out the 1st floor to the Margadarshi Chit Fund Limited and 2nd and 3rd floors to the Assistant Commissioner, Central Excise for office purpose. Apart from the same, he purchased item No. 6 in the name of the 2nd defendant, items 7 and 8 in the names of the 3rd and 9th defendants respectively and items 9 and 10 in the name of the 9th defendant, out of the joint family funds through registered sale deeds dated 9-7-1986, 14-10-1987, 25-10-1987, 9-1-1998 and 20-12-1998 respectively. Since items 1 to 10 were purchased and developed out of the funds of the joint family, they are joint family properties. Defendants 1 to 3 got equal shares in the plaint schedule property. While the matter stood thus, defendants 3 and 5 started contract business against the will and consent of the plaintiff and the 1st defendant and they addicted to vices like drinking and gambling. Though defendants 2, 3 and 9 are the members of the joint family, they mortgaged items 5 to 10 of the plaint schedule properties with the 10th defendant bank for raising capital of their business against the wishes of the other joint family members. Therefore, the plaintiff got issued a legal notice on 25-10-2003 to defendants 1 to 9 for partition of the plaint schedule properties and for separate possession. Thereafter, she filed the above suit.

4. In the said suit, she filed I.A. No. 2019 of 2003 under Order 39 Rules 1 and 2 CPC seeking ad interim injunction restraining the respondents/defendants from alienating the petition schedule properties.

5. The 1st respondent filed counter in support of the claim petition stating that he had no intention to alienate any of the schedule properties. The 3rd respondent, who is the father of the petitioner, filed counter stating that he requested the 1st respondent for raising funds in the business. Since the 1st respondent rejected the request, he mortgaged the properties and obtained loan to invest in the contract business only, but unfortunately, he sustained loss. He also stated that he has no intention to grab the property of the appellant or any of the respondents. The 2nd and 9th respondents filed a memo adopting the counter of the 3rd respondent. Respondents 7 and 8 did not choose to file any counter.

6. The 10th respondent bank filed counter opposing the petition stating that respondents 2, 3 and 9 have mortgaged items 5 to 10 of the petition schedule property for giving bank guarantee on behalf of M/s. B.R.C. Constructions, Hyderabad, and that the suit is a collusive one and got filed by respondents 3 and 9 with the connivance of the 2nd respondent. Respondents 2, 3 and 9 approached the bank for issuance of a bank guarantee on behalf of M/s. B.R.C. Constructions, Hyderabad, in favour of Chief Engineer and Project Director, A.D.B. Project Cell, GWSSB, Gandhinagar, Gujarat, for Rs. 30.75, Rs. 14.83 and Rs. 30.75 lakhs by pledging items 5 to 10 of the petition schedule properties and paid the remaining margin money of 25%. Accordingly, the bank after satisfying with the claim and title of respondents 2, 3 and 9 and after obtaining legal opinion, gave a bank guarantee for the aforesaid amount on behalf of M/s. B.R.C. Constructions on mortgaging items 5 to 10 of the plaint schedule properties. Later, the said bank guarantees were invoked and paid to the Gujarat Government. For due recovery of the said amount, it issued notices to all the partners of M/s. B.R.C. Constructions against the suit property by invoking the provisions of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the Act”). Respondents 2, 3 and 9, who are partners of M/s. B.R.C. Constructions, filed O.S. No. 217 of 2003 before the learned Additional Senior Civil Judge, Eluru. In the said suit, they filed I.A. No. 1458 of 2003 seeking interim injunction against the bank. Subsequently, the said suit was dismissed as not pressed before issuing interim injunction. Further, W.P. Nos. 9252 and 9254 of 2003 were filed by the petitioner to declare the action of the bank in issuing notices against the suit property by invoking the provisions of Section 13 of the Act as illegal and arbitrary. But the said writ petitions were dismissed as withdrawn on 25-5-2004 under Exs.B-1 to B-3. Thereafter, the present suit was filed and consequently, I.A. No. 2019 of 2003 was also filed with mala fide intention and to stall the further action of the bank pursuant to the notices issued under Section 13 of the Act.

7. The lower Court after considering the oral and documentary evidence available on record, held that the conduct of the petitioner and respondents 1 to 9 appears to be collusive and preventing the 10th respondent bank from proceeding against the petition schedule property under the provisions of the Act. Since no injunction can be granted against the person from proceeding or initiating legal action in view of Section 41 of the Specific Relief Act and in the absence of any prima facie case or balance of convenience in favour the petitioner, she is not entitled to injunction and accordingly, dismissed the I.A. The same is challenged in the present appeal.

8. Learned Counsel for the appellant strenuously contends that once the appellant, prima facie, established that she is a member of the joint family and she has a share in the undivided suit schedule property, she is entitled to temporary injunction and filed the suit for partition. If the properties are sold during the pendency of the suit, she will be deprived of her rights over the property and any mortgage of properties with the bank by respondents 2, 3 and 9 will not bind on her. Therefore, the lower Court failed to appreciate that the rights of the parties have to be protected, while the suit for partition is pending. Learned Counsel further contends that the lower Court has not properly exercised its discretion and committed an illegality in dismissing the I.A., even though the documents filed by the appellant clearly establish that the properties standing in the names of respondents 2, 3 and 9, were purchased out of the joint family funds. Though properties stand in the names of respondents 2, 3 and 9, every member of the joint family will have a right over the properties, which are the subject matter of mortgage.

9. Per contra, the learned Counsel for the 10th respondent bank contends that the suit filed by the appellant is a collusive suit and the same is evident from Ex.B-1, the order passed by this Court in W.P. No. 9252 of 2004. Against any order passed under Section 13 of the Act, an appeal lies to the Debts Recovery Tribunal under Section 17 of the Act. Therefore, the appellant’s rights have not been foreclosed. But she cannot stall the proceedings nor prevent the bank from proceeding against the mortgaged property in view of Section 41 of the Specific Relief Act and to the limited extent, the jurisdiction of the Civil Court can be invoked as held by the Apex Court in Mardia Chemicals Limited v. Union of lndia .

10. In reply to the said submission, the learned Counsel for the appellant contended that it is only a suit for partition and the Debts Recovery Tribunal will not have any jurisdiction to grant a decree for partition but it is only the Civil Court, which can grant a decree for partition in a suit. Therefore, the Civil Court will have jurisdiction to entertain the suit and pass appropriate orders.

11. The very fact is that the bank issued notices under Section 13(4) of the Act calling upon the respondents for payment of the amount paid by it on encashment of the bank guarantee, and if the respondents failed to pay the amount, it will proceed with the mortgaged properties. Questioning the notices issued under the provisions of the Act, the writ petitions under Exs.B-1 to B-3 were filed by the appellant as well as respondents 2, 3 and 9 and the same were dismissed as withdrawn. Even respondents 2, 3 and 9 filed O.S. No. 217 of 2003 seeking injunction against the bank, but the same was also dismissed as not pressed. Thereafter, they got filed the present suit through the appellant. It clearly discloses that the parties are in unison preventing the bank from recovering the lawful dues payable to it. Prima facie, the properties, which are exclusively standing in the names of respondents 2, 3 and 9 are the subject matter of mortgage, and the 10th respondent bank issued notices under Section 13 of the Act to take possession of the said properties.

12. It is well settled that the properties possessed by the members of the joint family cannot be said to be the joint family properties, unless it is established. Prima facie, the appellant having questioned the bank and realized that the bank cannot be prevented in proceeding with the mortgaged property, she withdrew the earlier cases and she filed the present suit as she will have 1/12th share in the joint family properties. If at all, the bank proceeds for sale of the properties, which were taken possession by it, the said properties may be allotted to the shares of respondents 2, 3 and 9, and the remaining properties may be allotted to the appellant/ plaintiff. In view of the same, the application filed by the appellant lacks bona fides and she is not entitled to injunction. As held by the Kerala High Court in Padmanabhan v. Thomas , fairness and good faith are the two important requirements for obtaining any equitable relief.

13. In view of the aforesaid discussion, the appellant failed to establish prima facie case or balance of convenience in her favour. Unless the appellant shows equity in her favour and her entitlement under the equity, she is not entitled to the order of injunction. More so, she has a right to file an appeal against any order passed under the provisions of Section 13 of the Act, before the Debts Recovery Tribunal. On careful consideration of the facts and circumstances of the case, I am of the view that the order passed by the lower Court in dismissing the I.A. does not require any interference of this Court.

14. The Civil Miscellaneous Appeal is accordingly dismissed.

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