Smt M R Shubha Vs Svc Cooperative Bank Limited

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TOISSUE DIRECTION TO DISMISS THE IA NO.2284/2020 FILED BY THE RESPONDENT BANK IN O.A.NO.1804/2018 IN SO FAR AS SCHEDULE PROPERTY IS CONCERNED ANNEXURE-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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HC-KAR

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ORAL ORDER

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The present writ petition is filed aggrieved by the orders passed in I.A.No.2284/2020 dated 16.12.2020 in O.A.No.1804/ 2018 by the Debt Recovery Tribunal-1, Bangalore.

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The respondent-Bank has filed the OA against the borrower and the guarantor for recovery of a sum of Rs.41,59,87,237.60 together with interest. In that they have filed IA No.2284/2020 under Order XXXVIII Rule 5 of CPC. The trial court by order dated 16.12.2020 has passed an order directing the defendant to furnish the security equivalent to OA claim amount on or before the next date of hearing or to appear and show cause why the defendant should not furnish the security failing with interim relief sought on I.A.No.2284/2020 will stand allowed. The petitioner is before this Court, who is the wife of the defendant.No.4 has filed IA.No.381/2021 stating that the said property is gifted to her and infact purchased by both of them in the year 2005 by contributing equally and in the year 2017, a gift deed dated 13.07.2017 is executed by the husband in favour of his wife and she has become the absolute owner of the property as

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such there cannot be any order attaching this property. The trial court by order impugned had dismissed the said application. While dismissing the application the DRT has observed that the third party applicant has filed the I.A. for setting aside the order dated 16.12.2020 on the basis of the gift deed executed by defendant No.4 in her favour on 13.07.2017 and the said gift deed by defendant No.4 in her favour is found to have been executed after defendant No.4 availing substantial amount of loans and facilities from the applicant-bank along with defendant Nos.1 to 3 and 5. Hence it appears that the transfer of property by way of a gift appears to have been done to deny or deprive the Applicant-Bank from recovering the loan dues from the defendant No.4’s property. Further, to deprive the bank, the third-party has entered into an agreement of sale with another third-party, which also does not appear to have been concluded, though it provided for conclusion of the deal within 90 days. The fact that the present application has been filed by the wife of defendant No.4 and not the purchaser and the said agreement to sell would clearly show that the aggrieved party is not the purchaser, as sale has not been concluded by payment of full sale consideration as

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stipulated in the agreement. Under the circumstances, the application by third-party applicant is found to be not bona fide and made with a view to deny and deprive the Applicant-Bank from proceeding against the property in which defendant No.4 undoubtedly has half share as per sale deed of the year 2005 executed in their favour. The Order dated 16.12.2020 therefore would bind the 50% share of defendant No.4 and therefore the application filed by the third party applicant who is a wife of defendant no.4 fails to pass the merit and is liable to be dismissed and accordingly I.A.No.381/2021 is dismissed.

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Learned counsel appearing for the petitioner who is the wife of the defendant No.4 submits that the property is gifted to her in the year 2012 by way of a registered gift deed dated 13.07.2007 and by virtue of the gift deed executed in her favour she has become the absolute owner of the property. The husband of the petitioner is the guarantor. The property which stands in her name cannot be attached on an application that is filed under Order 38 Rul2 5 of CPC. Even the finding of the trial court that the sale deed executed in the year 2005 shows that defendant No.4 has half share as per the sale deed. It is

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submitted that the trial court has failed to consider the gift deed which is executed in the year 2017 and also It is submitted that the trial court has failed to consider IA.No.381/2021 in its proper perspective.

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4.Learned counsel appearing for the respondent-Bank submits that in the agreement of sale, the petitioner and the husband, husband is shown as a conforming party which shows that the gift deed is not acted upon. As such the trial court has rightly considered all these facts and rightly held that as the defendant No.4 is having 50% share in the property as per the sale deed in the year 2005 both of them have contributed and jointly purchased the property. The trial court has rightly held that there would be a charge as far as 50% of the property is concerned. It is submitted that the petitioner is not at all an income tax assessee. When she has no income, question of purchasing the property or any contribution from her side is completely ruled out. It is submitted that the trial court in spite of the said fact had considered only 50% of that and an order is passed. It is submitted that the order passed by the trial court

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is a well considered order and it doesn't require any interference by this court.

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Having heard the learned counsel's on either side, perused entire material on record. The admitted facts in this case are, defendant No.4 who is husband of the petitioner herein is a guarantor for the loan amount granted by the respondent-bank. When there was default in payment of the loan amount, respondent-Bank initiated the proceedings by filing a OA under the RDB Act, 1993. The property which is in question was purchased in the year 2005 by the petitioner and her husband jointly, then in the year 2017, a gift deed dated 13.07.2017 is executed by the husband in favour of his wife. The account has become NPA in the year 2018. It is nobody's case that this is a property which is mortgaged in favour of the bank and as on 2018 the account has become NPA and to deprive the interest of the bank, a gift deed is executed in favour of the wife. When there is a registered gift deed as on today, it has to be considered that the property belongs to the petitioner. If the bank wants to prove otherwise, saying that it is a transaction for depriving the interest of the bank or any

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other thing, that is for the Bank to prove the same. However, when an application is filed under Order XXXVIII and Rule V of

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CPC seeking attachment before judgment, basing on these disputed questions of fact, where the ownership of the property itself is in question the trial court ought not to have passed such an order. Accordingly this court is passing the following:

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ORDER

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