Dismissed

Khanish Kumar Bhattacharjee and Anr. v. M/S Landmark Establishmentsp Ltd. and Ors.

Gauhati HC10 Feb 2020CRP/189/2014

Case brief

AI extract

What is this about?

The revision petition challenging the rejection of an amendment to a plaint was dismissed. The High Court held that civil court jurisdiction was ousted under the SARFAESI Act, and the amendment to introduce fraud/forgery was not bona fide, calculated to oust DRT jurisdiction, and lacked due diligence.

What did the court decide?

The revision petition is dismissed. No order as to cost.

Khanish Kumar Bhattacharjee and Anr. Vs M/S Landmark… — Property and Title | Gauhati HC (2020)

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GAHC010010832014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 189/2014

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1:KHANISH KUMAR BHATTACHARJEE and ANR

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S/O KALI KUMAR BHATTACHARJEE, R/O L.K. ROAD, P.O. TEZPUR, DISTSONITPUR, ASSAM

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2: PALLAB KUMAR BHATTACHARJEE S/O SRI SAILESH KUMAR BHATTACHARJEE R/O L.K. ROAD P.O. TEZPUR DIST- SONITPUR ASSA

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VERSUS

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1:M/S LANDMARK ESTABLISHMENTSP LTD. and ORS.

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A COMPANY INCORPORATED UNDER COMPANIES ACT 1956 WITH ITS REGD. OFFICE AT M.G. ROAD, MACHKHOWA, GHY-9, DIST- KAMRUP METRO, ASSAM

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2:HOUSING and URBAN DEVELOPMENT CORPORATION LTD. HUDCO WITH ITS REGD. OFFICE AT CORE-7A HUDCO BHAWAN INDIA HABITAT CENTRE COMPLEX LODHI ROAD NEW DELHI-3 AND ONE OF ITS REGIONAL OFFICE AT R.G. BARUAH ROAD GANESHGURI GHY-5 3:MASRUR HUSSAIN S/O LT. TAJMUL HUSSAIN R/O COL.J. ALI ROAD LAKHTOKIA GHY-1

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DIST- KAMRUP METRO ASSA

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Advocate for the Petitioner : MR.G KAKOTI

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Advocate for the Respondent : MR.K C DEKA

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BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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ORDER

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Date : 10-02-2020

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Mr. G. Kakoti, learned counsel for the revision petitioners. Also heard Mr. K. Bhattacharjee, learned counsel for the respondent No. 2.

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Although the office note shows that service of notice on respondent Nos. 1 and 3 is complete, none has appeared on their behalf.

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This present revision petition has been filed by the petitioner impugning the order dated 14.03.2013 passed in Misc.(J) No. 210/2012 and the order dated 07.04.2014 passed in Misc. J. No. 250/2013 in Misc. (J) No. 210/2012 being the order passed in the application seeking review of the order dated 14.03.2013 passed in Misc. J. Case No. 210/2012.

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The case of the petitioner is that an amendment to the plaint was sought for by filing an amendment petition under Order VI Rule 17 CPC. During the course of the hearing of the said application it was objected to that in view of the Section 34 of the SARFAESI Act, the jurisdiction of Civil Court is ousted. The respondent No. 2 having already proceeded before the DRT under the provisions of the SARFAESI Act against the respondent No. 1 for recovery of the amount which has been taken on for loan, the suit itself is not maintainable and therefore the application under Order VI Rule 17 should be rejected.

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Considering the above, the application seeking amendment was rejected

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by order dated 14.03.2013 which is impugned as annexure D of the present petition. Against the said order, a review was also sought for by the petitioner which was also rejected on 07.04.2014 and the same is at annexure G to this petition.

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I have heard the rival contentions of the parties and have also perused the pleadings available on record. The petitioner herein as plaintiffs brought a suit in the Court of Civil Judge No. 1, Guwahati for declaration and for permanent injunction against the respondents as defendants. The suit was registered as title suit No. 53/2012 and is presently pending disposal before the Civil Judge No. 3 at Guwahait. It is the case of the petitioners as plaintiffs that respondent No. 1 by executing a deed of agreement bearing deed No. 9941 and one registered General Power of attorney dated 02.12.2013 registered with sub-Registrar at Guwahati with the Proforma respondent No. 3 in respect of the plot of land measuring 5 Katha, 4 lechas covered by Dag No. 212 of Patta No. 57 and the Mouza- Beltola, Village, Madamgaon situated at Kalaguru Bishnu Rabha Path Beltola, agreed to develop the same by constructing a multistoried residential apartment building upon certain terms and condition as stated therein and, accordingly, the physical possession of the land was handed over by the respondent No. 3 to the respondent No. 1. The said plot of land is described in schedule B to the plaint. In accordance with the right and authority the respondent No. 1 obtained permission for construction for six storied residential apartment upon such schedule B land from the Guwahati Metropolitan Development Authority and started construction thereon.

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The petitioners who were in the same locality as a respondent No. 1, being desirous of acquiring of apartments from the respondent N. 1 negotiated with the respondent No. 1. It was agreed between the petitioner and the respondent No. 1 that in exchange of the plot of land owned and possessed by the petitioners measuring 2 Katha, 10 Lechas covered by Dag No. 44 of Patta No. 18(O)/106(N) of village Rukmini Gaon Guwahati, the respondent No. 1 will

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give two residential flats of 1500 sq. ft each on the third and fourth floor of the north block of the building along with car parking space on the ground floor with undivided proportionate share of land as described in Schedule C to the plaint.

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Pursuant to the said negotiation, the petitioners executed an agreement dated 02.11.2007 with the respondent No. 1 and agreed to exchange their plot of land in lieu of proposed two residential flats. The petitioners have, thereafter, handed over the said land to the respondent No. 1 in terms of the agreement executed. The petitioners were informed by the respondent No. 1 that the physical possession of the apartment agreed to be delivered to the petitioners would be available to be handed over to the petitioners sometime in the month of October, 2011.

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However, the said apartments were not handed over to the petitioners till 07.02.2012 and on which date the management of the respondent No. 1 handed over a notice dated 14.11.2011 issued to them by the respondent No. 2 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 and stated that the respondent No. 2 would take over the possession and management of entire project of the residential apartment constructed upon the said land including the apartment proposed to be allotted to the petitioners, realizing the dues payable to respondent No. 2. The petitioners, thereafter, came to know that the respondent No. 2 and the proforma respondent No. 3 had availed of financial loan from the respondent No. 2 by mortgage land on which the apartment were being constructed, including the land of the petitioners which were handed over to the respondent No. 1 pursuant to the agreement in lieu of the apartments proposed to be handed over to the petitioners.

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Under such circumstances, the petitioners as plaintiffs filed the Title Suit No. 53/2012 with the following prayer:-

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(i) For a decree for declaration of right, title and interest of the plaintiffs in

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the suit premises including the undivided and unqualified right in the land as

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well as in the common area and the common facilities viz sanitary tanks, water tanks, parking space, staircase, lifts, corridors etc.

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(ii) For a decree for declaration that the impugned notice bearing No. HUDCO/GRO/LANDMARK/18725/2011/1573 dated 14.11.2011 sent by the defendant No. 2 to the defendant No. 1 effecting right, title and interest of the plaintiffs in the suit premises be unjustified, illegal, unlawful, void and not binding upon the plaintiffs.

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(iii) For a permanent injunction against the defendant No. 2 restraining them from taking any action on the basis of the impugned notice or otherwise for attachment/sale of the suit remises in the name of realization of the loan from the defendant No. 2.

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(iv) For temporary injunction;

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(v) For all cost of the suit;

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(vi) For any relief/s to which the plaintiffs are found to may also be decreed.

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As recorded in the impugned order, it is seen that on 01.08.2012 issues were framed and out of which the issue of jurisdiction of the Civil Court had been taken up as a preliminary issue. At this juncture, the petitioners as plaintiffs filed an application under Order VI Rule 17 read with Section 151 CPC seeking amendment of the plaint as indicated therein. The said application was objected to by the respondents/defendant No. 2. The learned trial Court by order dated 14.03.2013 passed in Misc.(J) No. 210/2012 arising out of T.S. No. 53/2012 rejected the amendment sought for as being not bona fide and not being supported by specific pleadings of due diligence.

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Thereafter, the petitioners filed an application seeking review under Order XLI Rule 7 read with Section 151 CPC by Misc.(J) Case No. 250/2013. The learned Court below by order dated 07.04.2014 rejected the petition seeking review on the ground there was no error apparent on the face of the record in the order sought to be reviewed.

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Being aggrieved, the present petition has been filed by the petitioner assailing the order dated 07.04.2014 passed in Misc.(J) Case No. 250/2013 and order dated 14.03.2013 passed in Misc.(J) Case No. 210/2012, both arising in title Appeal No. 12/2012.

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I have heard the learned counsels for the petitioners as well as for the

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respondent No. 2. I have also perused the pleadings as well the orders impugned. From the pleadings it is seen the petition under Order VI Rule 17 read with Section 151 CPC was filed by the petitioner/plaintiff pursuant to the framing of the issues. One of the issue pertains to the jurisdictions of the Civil Court in respect of the matters relating to SARFAESI Act, 2002. The mandate of Order VI Rule 17 clearly provides for the Court to allow either party to alter or amend the pleadings in such manner and on such terms, at any stage of the proceedings. However, no such application shall be allowed after trial has commenced unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial.

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The learned trial Court by the order impugned dated 14.03.2013 had elaborately examined the petition filed by the petitioner seeking amendment and thereafter rejected the prayer for amendment sought on the ground of absence of pleadings regarding due diligence.

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A perusal of the petition for amendment being Misc.(J) Case No. 210/2012 filed by the petitioner, it is seen that the petitioners/plaintiffs seek to bring in the element of fraud/forgery in respect of the loan agreement executed by and between respondent Nos. 1 and 2. Prima facie, it appears that such amendment to bring in the element of fraud/forgery, inter alia, appears to be after thought so as to continue to pursue the matter before the learned Civil Court by taking it out of the purview of the proceedings under the SARFAESI Act, 2002. Such attempts by the petitioners is completely against the spirit of this SARFAESI Act, 2002 as well as contrary to the law laid down by the Hon’ble Supreme Court in several judgments. The petition seeking amendment does not explain as to why these grounds were not incorporated in a title suit originally filed in February, 2012 and/or as to how and when the information/facts necessitating the proposed amendment sought to came to the knowledge of the petitioner. At para 2 of the said petition the only ground for not being able to incorporate the said facts was ‘due to immense urgency

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of the matter and impulsiveness’ for which reason the facts/ information could not be incorporated at the time of the filing of the plaint.

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The learned trial Court has correctly referred to the law laid down by the Hon’ble Supreme Court in the judgment quoted and thereby rejected the petition seeking amendment. The order dated 14.03.2013 impugned in the present proceedings rejecting the prayer of the amendment of the plaint, therefore, does not commend for any interference.

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Consequently, there being no error apparent on the face of the record in the orders dated 14.03.2013 and 07.04.2013 filed by the petitioner seeking review of the order dated 14.03.2013 also has rightly rejected the petition seeking review being Misc.(J) Case No. 250/2013.

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In view of the facts narrated herein above, this Court is of the prima facie view that the relief/remedy sought for by the petitioner could well be available to the petitioners under Section 17 of the SARFAESI Act, 2002. This Court is of the view that the issue of the jurisdiction of Civil Courts to hear the matters pertaining/arising out of the SARFAESI Act, 2002 is well settled. The Hon’ble Supreme Court in the Case of Jagdish Singh Vs. HeeraLal reported in (2014) 1 SCC 479 has laid down the law that in matters pertaining to SARFAESI Act is not at all amenable to the jurisdiction of the normal Civil Courts. The remedy provided under Section 17 of the SARFAESI Act has been held to be an efficacious and alternative remedy to any party including a borrower as well as any third party to approach the Debt Recovery Tribunal constituted under the SARFAESI Act to assail such actions of the authorities as may be necessary by persons who are aggrieved of by such action resorted to by the authorities under the SARFAESI Act. The Hon’ble Supreme Court further held that under Section 34 of the SARFAESI Act the jurisdiction of the Civil Courts ousted to deal in matters in arising out of the SARFAESI Act. Such matters fall within the jurisdiction of the DRT and its Appellate Tribunal constituted under the SARFAESI Act, 2002. It is also submitted by the learned counsel for the respondent No. 2 that the respondent No. 2 has already approached the DRT,

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Guwahati for recovery of the loan availed by the respondent No. 1 by initiating proceedings which are numbered as OA No. 63/2012 and the same is present pending disposal.

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In view of the above discussions, this Court is of the considered view that there is no infirmity in the orders dated 14.03.2013 and 07.04.2014 passed by the learned Court below and which are impugned in the present proceeding. Consequently, this Court is of the considered view that this is not a fit case to invoke its power of revision under Article 227 of the Constitution of India. The revision petition is devoid of merit and the same is, accordingly, dismissed. No order as to cost.

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JUDGE

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Comparing Assistant

Khanish Kumar Bhattacharjee and Anr. v. M/S Landmark Establishmentsp Ltd. and Ors.

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Khanish Kumar Bhattacharjee and Anr. v. M/S Landmark Establishmentsp Ltd. and Ors.

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