Sadanand Properties Pvt. Ltd. And ... vs Punjab National Bank And Ors
2015 Latest Caselaw 1108 Del

F-4
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :29.01.2015
                                   Judgment delivered on :06.02.2015

+     CS(OS) 358/2009
      SADANAND PROPERTIES PVT. LTD. AND ORS
                                                             ..... Plaintiffs
                          Through       Mr. Rajat Aneja and Ms.Rashmi
                                        Verma, Advocate.
                          versus
      PUNJAB NATIONAL BANK AND ORS.                       ..... Defendants
                          Through       Mr.Pallav Saxena, Advocate for
                                        D-1.
                                        Mr.R.S.Shani, Advocate for D-2.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The present suit for declaration and permanent injunction has

been filed by three plaintiffs against Punjab National Bank and Others.

Defendant no.2 Amarjeet Kaur and defendant no.3 Prem Kaur are stated

to be proforma parties. No relief has been claimed against them.

Defendant no.4 is the Oriental Bank of Commerce and defendant no.5 is

the DDA. They are also proforma parties. The grievance of the

plaintiff is only qua defendant no.1.

2 Immovable property bearing No.A-87, Naraina Vihar, New Delhi

situated on a plot of land measuring 309.9 sq. yards (hereinafter referred

to as the suit property) comprised of four floors i.e. ground floor, first

floor, second floor and third floor, the plaintiffs are stated to be the joint

owners of this entire suit property (except the ground floor) having

purchased the same by two registered sale deeds executed on two

separate dates.

3 Further case of the plaintiffs is that the suit property was

originally allotted in favour of defendant nos.2 and 3; both are related to

each other; a perpetual lease deed was executed in their favour by the

Delhi Administration on 23.01.1971. Both of them applied for

conversion of their property from leasehold to freehold; they having

fulfilled the requisite formalities conveyance deed dated 22.12.2006 was

executed in their joint names. The property was subsequently

partitioned between them by a decree dated 29.7.2005 passed by the

Civil Judge, Tis Hazari. By virtue of this partition deed defendant no.2

became the owner of the first floor and second floor. Defendant no.3

became the exclusive owner and was in possession of the ground floor

and terrace over the second floor (i.e.third floor).

4 Plaintiff nos.1 to 3 had agreed to purchase the suit property

comprising of all the floors, except the ground floor. Sale deed dated

10.4.2008 in respect of the third floor (terrace/roof rights over the

second floor) was executed by defendant no.3 in favour of plaintiff

nos.1 to 3 for a consideration of Rs.15 lacs. This sale deed was

registered on the same date. At that point of time, the plaintiffs learnt

that defendant no.3 in March, 2008 had stood guarantor in respect of a

loan taken by a partnership firm M/s Mamta Enterprises from Oriental

Bank of Commerce (defendant no.4). With a view to get the title deeds

released from defendant nos.2 to 4, the plaintiffs in order to assist

defendant no.3 for the purpose of discharging the loan liability paid a

substantial amount of money to defendant no.4 for the purpose of

getting original title deeds released in their favour. Thereafter the

aforenoted sale deed dated 10.4.2008 was executed in their favour.

Almost contemporaneously with the execution of the sale deed dated

10.4.2008 an agreement to sell was entered into between the plaintiffs

and defendant no.2 for the purchase of the first floor and second floor of

the suit property (exclusive of the roof rights). This agreement to sell

dated 07.4.2008 was registered; sale consideration was fixed at

Rs.1,25,00,000/-. Thereafter sale deed qua the said two floors was

executed by defendant no.2 in favour of the plaintiff on 17.10.2008

which was also duly registered.

5 Plaintiffs thus became the joint owners of the first floor and

second floor having purchased them from defendant no.2. Plaintiffs also

were the joint owners of the terrace and third floor having purchased the

same from defendant no.3. Except the ground floor, the entire property

was thus owned by the plaintiffs. The plaintiffs also have the original

title deeds of the said property. They are also in physical possession of

the suit property.

6 Since the plaintiffs wanted to reconstruct the property the

defendant no.3 had agreed to hand over the ground floor of the property

also to the plaintiff for the purposes of reconstruction. The entire

structure of the suit property was thus demolished and the plaintiff

proceeded to construct the building upon the said property which at the

time of filing of the suit was almost near completion.

7 In the last week of January, 2009, the plaintiff learnt a startling

fact. It was disclosed by defendant nos.2 and 3 that the suit property had

been mortgaged to defendant no.1 pursuant to which a loan which had

been disbursed to M/s S.R.Traders for Rs.140 lacs; contention being

that the defendant no.1 had colluded with certain undesirable elements

and got some forged documents pertaining to the suit property claiming

that it also has the original perpetual lease deed dated 23.01.1971 as also

the conveyance deed dated 22.12.2006 in its possession.

8 Defendant nos.2 and 3 supported the stand of the plaintiff and

stated that they had not executed any mortgage deed in favour of

defendant no.1 at any point of time and their signatures, if any, on the

documents purported to be executed in favour of the defendant no.1 are

forged and fabricated. Plaintiffs apprehend that a bold fraud has been

perpetrated by defendant no.1 in connivance with some other persons.

The title deeds, if any, of the suit property with the defendant no.1 are

forged and fabricated.

9 It is stated that qua the ground floor of the suit property, CS(OS)

2570/2008 is pending; this has been filed by Harjinder Pal Singh against

defendant no.3 seeking a prayer of specific performance of an

agreement to sell dated 04.2.2008 qua the ground floor. A criminal

complaint had also been filed by the plaintiffs in the Economic Offence

Wing against defendant no.1. It is stated that the documents i.e. the

perpetual lease deed and conveyance deed purportedly lying with

defendant no.1 are blatantly forged and fabricated for the reason that the

photographs of two mortgagees Amarjeet Kaur (defendant no.2) and

Prem Kaur (defendant no.3) are different on the back and front page

which itself shows the connivance of the bank to obtain fabricated

documents. This is a clear case of cheating. Plaintiff has accordingly

prayed for a relief of declaration and permanent injunction declaring that

the documents of any nature relating to the suit property lying with the

defendant no.1 be declared null and void; decree of permanent

injunction be passed in favour of the plaintiffs and against the defendant

no.1/its officials, servants and etc restraining them from in any manner

interfering or taking any coercive steps against plaintiffs.

10 In the written statement filed by defendant no.1, the foremost

contention of the defendant is that the present suit is not maintainable

and is liable to be rejected under Section 34 of the Securitization and

Reconstruction of Financial Assets and Enforcement of Security Interest

Act, 2002 ( SARFAESI). Submission is that there is an absolute bar of

a trial cases which are subject matter of the Debt Recovery Tribunal and

the present case being covered by the provisions of Section 34 of the

said Act is barred. On merits, it is stated that the suit property is a

secured interest with defendant no.1 and a loan facility had been availed

of by M/s S.R.Traders in the sum of Rs.1.40 lacs. M/s S.R.Traders is

partnership firm comprising of Mukesh Kumar Kukreja and Gurdeep

Singh Sethi. Gurdeep Singh Sethi is the son of defendant no.3.

Defendant nos.2 and 3 had created an equitable mortgage in favour of

defendant no.1 by deposit of the title deeds i.e. the perpetual deed and

the conveyance deed of the suit property. Submission being that the

provisions of the SARFAESI Act had in fact been invoked by the bank;

the account of M/s S.R.Traders had been declared NPA on 06.11.2008.

Notice under Section 13(2) of the said Act had been issued.

O.A.No.16/2009 has been filed by the answering defendant which is

pending before the DRT and the contention raised before this Court can

well be answered by the DRT. It is reiterated that the jurisdiction of the

Civil Court is barred in view of the clear mandate of Section 34 of the

Said Act. It is stated that during trial M/s S.R.Traders had created

equitable mortgage in their favour by deposit of the title deeds through

defendant no.2 and 3 who are the owners of this property. The

mortgage created in favour of defendant no.1 is prior in time to any

rights which are now being claimed by the plaintiff. Further submission

being that this is a clear case where the plaintiff and defendant nos.2 and

3 who are closely related to Gurdeep Singh Sethi (partner of M/s

S.R.Traders) are trying to usurp the public money by setting up this

false case. The loan had been sanctioned in favour of M/s S.R.Traders

for which the necessary documents i.e. the perpetual lease deed and the

conveyance deed of the suit property had been submitted with the bank.

The present suit on all counts is liable to be dismissed.

12 Written statement was also filed by defendant nos.2 and 3; they

have supported the case of the plaintiff. No written statement was filed

by defendant nos.4 and 5. Defendant no.4 in his statement in Court on

30.7.2009 had stated that the original title deeds of this property had

been returned to the plaintiffs.

13 Defendant no.5 had filed an affidavit in compliance of the order

dated 06.3.2009. On 06.3.2009 defendant no.5 (DDA) had been

requested to compare the original title documents of the property which

the plaintiff claimed to be in their possession with the original

documents title documents which the defendant no.1 bank had

purportedly filed before the DRT (before whom OA no.16/2009 is

pending). The DDA had been directed to inspect the documents and to

file a compliance report which had been filed in terms of its affidavit of

compliance dated 22.4.2009. The stand of defendant no.5 was that the

original title deeds had been released by defendant no.4 (Oriental Bank

of Commerce) in favour of the plaintiff.

14 Replication was filed reiterating the averments made in the plaint

and the countering the submissions made in the written statement.

15 Thereafter in the course of the proceedings since the vehement

contention of defendant no.1 was that the present suit was not

maintainable before a Civil Court an application under Order 7 Rule 11

CPC had been filed by him. The prayer was for the rejection of the

plaint. This application along with two other applications i.e. an

application under Order 39 Rule 1 and 2 CPC and Section 151 CPC

were disposed of by a common order dated 03.02.2010. The Court was

of the view that a prima facie case was made out in favour of the

plaintiff entitling the plaintiff to deal with the suit property in which

they had a prima facie title i.e. on the first floor, second floor and the

terrace subject to the condition as detailed in para 20 of the said order; a

sum of Rs.1.50 crores had been directed to be deposited by the plaintiff

to secure the interest of the defendant no.1 which was to be kept in an

interest bearing FDR; in case the plaintiff wanted to alienate the suit

property they had to intimate the Court. The application under Order 7

Rule 11 of the CPC had also been disposed of noting that although the

bar of Section 34 of the SARFAESI Act was in operation but to a

limited extent the bar is lifted where element of fraud is pleaded. The

order dated 03.02.2010 had relied upon the ratio of the judgments of the

Supreme Court in 2004(4) Scale Mardia Chemicals Ltd. Etc Cs. Union

of India etc. as also in (2009) 8 SCC 646 Nahar Industrial Enterprises

Ltd. Vs. Hong Kong and Sanghai Banking Corporation.

16 Admittedly, no appeal was filed against this order.

17 On 26.4.2010, from the pleadings of the parties, the following

issues were framed. They read herein as under:

1. Is the suit not maintainable and is barred as urged by defendant

no.1? OPD

2. Is the plaintiff entitled to the declaration claimed in the suit ?

OPD

3. Is the plaintiff entitled to permanent injunction as claimed?

OPD

4. Whether the plaintiffs prove ownership of the said property?

OPP

5. Relief.

18 Parties were relegated to evidence. Plaintiff in support of his case

has relied upon the statements of nine witnesses; the defendant had

produced two witnesses in defence.

19 Arguments have been heard. Record has been perused.

20    Issue-wise findings are as under:

Issue No.1

21    Learned counsel for the defendant has placed reliance upon

(2006) 8 SCC 367 M.Gurudas and Ors. Vs. Rasaranjan and Ors. to

support his submission that even where an application under Order 7

Rule 11 CPC had been dismissed, it is only a prima facie hearing of the

matter and would not bar the Court from entertaining an issue on the

maintainability of the suit and it would be open to the Court to examine

the question of maintainability dehors the dismissal of that application.

This submission is not refuted. The order dated 03.2.2009 will not

come in the way of this Court to answer issue no.1.

22 The Supreme Court in (2014) 1 SCC 479 Jagdish Singh Vs.

Heeralal and Ors. while examining the provisions of Sections 34 and

35 of the SARFAESI Act had noted that Section 34 of the said Act oust

this Civil Court‟s jurisdiction completely. Section 34 of the said Act

reads herein as under:

34.Civil court not to have jurisdiction-. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which 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 1992).

23 The scope of Section 34 also came up for consideration before the

Supreme Court in Mardia Chemicals (supra) dealing with the non-

obstante clause that no civil court will have jurisdiction to entertain any

suit or proceedings in respect of any matter which the DRT or Appellate

Tribunal is empowered under the SARFAESI Act to determine. The

expression "in respect of any matter" referred to in Section 34 would

take measures provided under sub-Section (4) of Section 13 of the said

Act. Any person aggrieved by these measures has a remedy to approach

the DRT or the Appellate Tribunal but not the civil court. Section 35 of

the said Act overrides other laws which are inconsistent with the

provisions of the Act and which also takes within its sweep Section 9 of

the CPC.

24 Learned counsel for the plaintiff while refuting this submission

has placed reliance upon that part of the extract of the Mardia

Chemicals where a proviso has been carved out in favour of the civil

court to a limited extent. The relevant extract reads as under:

"However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madres High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely V. Narasimhachariar (supra) p.135 at p.141 and 144, a judgment of the learned single Judge where it is observed as follows in para 22:

"The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court

before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings is an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought; "Adams v. Scott, (1859) 7 WR (Eng.) 213 (Z49). I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (Rashbehary Ghose Law Mortgages,Vol.II, Fourth Edn., age 784.)

25 Thus it is clear that to a limited extent i.e. to the extent where the

parties allege fraud and on the face of it the action of the secured

creditor (defendant no.1) appears to be fraudulent or the claim appears

to be so absurd and untenable, the jurisdiction of the civil court will not

be excluded. The submission of the learned counsel for the defendant

that this exception is applicable to the only English mortagages is

negatived by the very language which is used in the aforenoted extract.

It not confined to cases of English mortgage alone. This exception

enables the Civil Court to invoke its jurisdiction where the action of the

secured creditors is alleged to be fraudulent.

26 In the instant case the whole case of the plaintiff is based upon

fraud. Two sets of documents have been set up by the respective

parties. The plaintiff claimed that he has the original perpetual sale deed

and conveyance deed of the suit property whereas the defendant had set

up counter case. In the order dated 03.02.2010 the Court while

dismissing application under Order 7 Rule 11 CPC had relied upon a

report of Mr.Narayan Mandal, Assistant Director of the DDA. The

relevant extract of the said order reads herein as under:

"15. A facial reading of the Conveyance Deed would show that the officer of the DDA, who executed it was Mr. Narayan Mandal, Assistant Director, DDA. The said official apparently inspected both sets of documents and furnished a report dated 16.04.2009; the same has been filed in Court along with the affidavit of Mr. S.S. Gill, Director (Residential Lands). The Inspection Report categorically asserts that the documents produced and relied upon by the plaintiffs were in fact executed by the said Mr. Narayan Mandal. Equally categorically the report states that the documents relied upon by the PNB were not executed by him and that the Conveyance relied upon consequently is

not a genuine document. That the report itself does not state that the latter documents are not genuine, is irrelevant. What this Court has to see is that in the overall circumstances which of the two sets of documents is prima facie genuine.

16. Apart from the report of Mr. Narayan Mandal, what is apparent from the two sets of documents is that the Perpetual Lease Deed dated 23.01.1971 relied upon by the defendants has not been cancelled - a point which cannot be glossed over. The practice of the DDA (and a fairly universal one at that) is that once a Conveyance Deed is executed after conversion of the property from leasehold to freehold, the existing instrument of title, i.e. the Lease Deed is cancelled. The Perpetual Lease Deed relied upon by the plaintiffs clearly bears such a cancellation endorsement. The PNB's endeavor to discount this by contending that the date of 25.12.2006 by saying that it was a public holiday, in the opinion of the Court, is not of much significance because as between two documents, the existence of an uncancelled document (relied upon by the defendants) tends to raise more suspicion than the date of endorsement cancelling the instrument. It lends weight to the report of Mr. Narayan Mandal that the documents produced by the defendants cannot be relied upon and do not appear to be genuine. Similarly, the plaintiffs' argument that the Conveyance Deed contains the photographs of the true vendors are not denied by Defendant Nos. 2 and

3. The plaintiffs have also relied on their photo identity cards. Most crucially, the officer of the DDA who signed the document produced by them, attested to their genuineness.

27 In fact, It was at the prima facie level itself the case of fraud set

by the plaintiff was found to be apparent. Trial is over and final

arguments have also been concluded. The Tribunal (before whom OA

16/2009 is pending) will not be able to go into the question of fraud; the

prayer made in the present suit which is a prayer for a decree of

declaration seeking declaration that the documents set up by the

defendant be declared forged and fabricated qua the documents of the

plaintiff may not be able to be answered by the Tribunal. At this stage it

would also be unequitable to relegate the parties to that forum when

admittedly the order of this Court dated 03.02.2010 has attained a

finality and the Bank did not think it fit to challenge it.

28 The judgments relied upon by the learned counsel for the

defendant Bank reported as 2002 SCC Online Cal 410 State Bank of

India Vs. Madhumita Construction (Pvt.) Ltd. and Others, 2011 (1)

Mh.L.J. 55 Amit Jhaveri and Another Vs. Bank of Baroda, Mumbai and

Others and 2011(2) Mh.L.J. 342 State Bank of India Vs. Jigishaben are

all distinct on their facts; they cannot overrule the dicta of the Supreme

Court in Mardia Chemicals and the exception carved out in that

judgment is applicable to the facts of this case.

29 This Court is itself of the view that the suit in the present form is

maintainable in this Court. Issue no.1 is answered in favour of the

plaintiff and against the defendant.

30 All these issues will be decided by a common discussion. The

onus to discharge issue nos.2 and 3 is upon the defendant. The onus to

discharge issue no.4 is upon the plaintiff.

31 Plaintiff in support of his case has produced nine witnesses.

PW-1, PW-2 and PW-3 are the plaintiffs i.e. the directors of their

company. They have reiterated the averments which are contained in

the plaint. PW-4 was the clerk who had been summoned from the office

of the DDA. He confirmed that Ex. P-4 i.e. the perpetual lease deed

dated 23.01.1997 and the certified copies of conveyance deed dated

22.12.2006 (Ex.P-5) are correct copies of the originals. The witness

from the office of the Sub-Registrar was examined as PW-5. He has

brought the original conveyance deed dated 22.12.2006 and confirmed

the fact that Ex.P-5 was its true certified copy. PW-8 had brought the

summoned record from the Oriental Bank of Commerce qua the account

of M/s Mamta Enterprises (Ex.PW8/1 to Ex.PW-8/4) reflecting the

stand of the Oriental Bank of Commerce that a loan had been disbursed

to M/s Mamta Enterprises and the original title deeds of the suit

property i.e. of A-87, Naraina Vihar had been deposited with them.

32 The other documents i.e. the sale deed dated 10.4.2008 (Ex.P-2)

executed by defendant no.2 in favour of the plaintiffs and the agreement

to sell dated 07.4.2008 (Ex.P-6) and the subsequent sale deed dated

17.10.2008 (Ex.P-1) executed by defendant no.3 in favour of the

plaintiffs are also admitted documents.

33 Per contra, the defendant has set up two contemporaneous

documents i.e. the perpetual lease deed dated 23.01.1997 and the

conveyance deed dated 22.12.2006; contention of the defendant being

that these documents had been deposited with them by defendant nos.2

and 3 who had stood guarantors for grant of sanction of a loan to M/s

S.R.Traders. Relevant would it be to note that M/s S.R.Traders was a

partnership firm comprising of two partners namely Mukesh Kumar

Kukreja and Gurdeep Singh Sethi. Gurdeep Singh Sethi is the son of

defendant no.3.

34 On 03.02.2010 the interim application under Order 39 Rules 1

and 2 CPC of the Code was decided. This order was passed in favour of

the plaintiff. The Court was of a prima facie view that plaintiffs have a

prima facie title on the first and second floor as also on the terrace. The

submission of defendant no.1 that he had also documents of title was

prima facie negatived. However, to secure the interest of the defendant

no.1, the plaintiffs had been directed to deposite a sum of Rs.1.50 crores

in Court to be kept in an interest bearing FDR; plaintiffs had been given

permission to deal with the property. This order dated 03.02.2010 has

become a final order.

35 Another relevant fact which was considered by the Court while

disposing of this application on 03.02.2010 was the inspection report

submitted by Mr.Narayan Mandal, Assistant Director of the DDA. His

report was to the effect that the documents of title lying with the

plaintiffs i.e. the perpetual lease deed and the conveyance deed appear to

be the original as the documents of defendant no.1 had a uncancelled

perpetual lease deed which cast suspicion on the documents; the court

had noted that the perpetual lease deed of the defendant was

uncancelled; this cast a suspicion as normal practice admittedly is that

once a conveyance deed is executed the perpetual lease deed become

redundant and it is cancelled. This was noted in the report of Narayan

Mandal, Assistant Director of the DDA and was used as a prima facie

evidence by the Court while dealing with the interim application on

03.02.2010. At the cost of repetition it is noted that this order has

become a final order.

36 Thus the crucial documents which have to be scrutinized by the

Court to answer the submissions and counter submissions of the parties

are the perpetual lease deed dated 23.01.1997 and the conveyance deed

dated 22.12.2006. The plaintiffs have proved these documents in the

testimony of PW-4 and PW-5. The documents available with the

plaintiffs is a cancelled perpetual lease deed; this document runs into six

pages and on each page there is a cancelled mark „cancelled‟ written

upon it. The conveyance deed dated 22.12.2006 has photographs of

both defendant nos.2 and 3 namely Amarjeet Kaur and Prem Kaur on

the first page as also on the last page. The photographs are admittedly

of the same persons. This document is a registered document.

37 The documents of defendant no.1 (requisitioned from the DRT

before whom OA No.16.2009 is pending in which the originals of these

documents have been filed) have been perused. The perpetual lease

deed which is otherwise identical to the document of the plaintiffs is,

however, admittedly an uncancelled document. It has not been struck

off. Learned counsel for the defendant no.1 admits that in normal

course of practice once a conveyance deed is executed the perpetual

lease deed becomes almost redundant in view of the new document of

title (conveyance deed Ex.DW-1/14). There is no explanation as to why

the perpetual lease deed lying with the defendant no.1 bank does not

have any cancellation mark upon it. This was noticed by the Single

Judge even while granting interim relief to the plaintiff in its order dated

03.02.2010 and the cloud of suspicion which has been created has not

been dispelled on this document even till date.

38 The second document of title i.e. the conveyance deed dated

22.12.2006 is also suspicious. This has been proved as Ex.PW-P1W1/5.

There are two photographs appended on the first page purported to be of

defendant nos.2 and 3 namely Amarjeet Kaur and Prem Kaur. However

the photographs which are at the last page of the conveyance deed are of

different persons; they do not match the photographs on the first page.

There is no answer or explanation on this specific query put to the

learned counsel for the defendant no.1 on this score.

39 That apart the letter of defendant no.1 bank dated 22.2.2007

(Ex.D1W1/P7) is also a crucial document. This letter had been

addressed by defendant no.1 bank to defendant nos.2 and 3 informing

them that the title deed of the said property has been received by them in

lieu of the grant of a loan to M/s S.R.Traders and in the list documents it

finds mention that it is the original conveyance deed which is lying with

the defendant no.1 bank. There is no mention about the perpetual lease

deed. In these circumstances, how the purported lease deed came to be

in the custody of defendant no.1 bank is again a question which remains

unanswered and for which learned counsel for the defendant no.1 has no

answer.

40 Another suspicion which is cast on the defendants‟ case is the

manner in which the loan had been disbursed to M/S S.R.Traders. The

contention of defendant no.1 is that a loan of Rs.1.40 crores had been

sanctioned to M/S S.R.Traders on 20.02.2007. This was a partnership

firm comprising of two partners namely Mukesh Kumar Kukreja and

Gurdeep Singh Sethi (son of defendant no.3). The credentials of

Mukesh Kumar Kujreja have no where been verified by the bank and

not even a single document has been placed on record to substantiate

this fact. DW-2 and DW-3 had allegedly stood guarantee to this loan;

they had submitted letters dated 19.02.2007 furnishing guarantee. This

document has been proved as Ex.D1W1/P-3. Submission of the learned

counsel for the plaintiff that application for guarantee having been made

on 19.02.2007 and loan having been disbursed to the parties on

20.2.2007 i.e. just within one day and of such a huge amount again casts

suspicion upon the conduct of the defendant bank. This argument

cannot be brushed aside. There is no answer of the defendant on this

score. The guidelines and the parameters to be followed up by a public

sector bank do not permit the bank to sanction a loan within one day of

the submission of its documents. There is no document on record prior

to 19.02.2007; not even an application by M/s S.R.Traders to

substantiate that they had asked for a loan of such a huge amount. There

was also no valuation report of the property which had been obtained till

that date. Nothing also prevented the defendant bank from taking

permission from the Court to send these documents to the CFSL for an

expert examination. The questioned signatures of defendant no.2 and

defendant no.3 could have been examined with their admitted/specimen

signatures. None of this was done. On all counts, the documents of the

defendant appear to be suspicious.

41 Defendant No.1 had declared the account of M/s S.R.Traders as

an NPA on 0611.2008 (Ex.D1W2/16); what had led the Bank to take

this step has not been explained; the correspondence exchanged between

M/s S.R.Traders and defendant no.1 has been filed on 15.10.2008

(Ex.D1W2/15) i.e. just twenty days before the account of M/s

S.R.Traders was declared NPA the Bank had requested M/s S.R.Traders

to submit documents for the renewal of their limits. At that point of

time it was not revealed that there were any outstanding against

M/sS.R.Traders; submission of the plaintiff on this account all alone

being that there was no occasion for the Bank to treat the account of M/s

S.R.Traders as NPA as the said firm had never defaulted in its

payments.

42 The defendant no.1 had filed O.A.No.16/2009 before the Debt

Recovery Tribunal on 27.01.2009. Under Section 19 of the Debts

Recovery Tribunal Act, 1993 (DRT Act). The provisions of Section 13

of the Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (SARFAESI) had also been

invoked. The suit was filed at a later point of time i.e. on 16.09.2002. On

06.03.2009, on an order passed by this Court the Bank undertook not to

take steps under the SARFAESI for taking possession of the disputed

property; vice-versa the plaintiff had assured the Court that it shall not

deal with the property to the detriment of the defendant bank. Thus the

submission of the learned counsel for the defendant that steps have been

taken only under the DRT Act and not under the provisions of

SARFAESI is an incorrect statement.

43 DW-1 Subhash Chander Pathak, Chief Manager, Punjab National

Bank in his cross-examination was confused as to whether he had met

the guarantors (DW-2 and DW-3); at one point of time his averment was

that he had met them during the sanction of the loan but at a later stage

he had denied the same. He admitted that valuation report of the

property D1W1/P-8 dated 20.01.2007 was received on 23.02.1007 i.e.

after the sanction of the loan which was on 19.02.2007 vide sanction

letter Ex.D1W1/1. All these are suspicious circumstances.

44 The stand of defendant no.4 (Oriental Bank of Commerce) is also

relevant. No written statement has been filed. PW-8 had testified that

the title documents of the suit property had been deposited with them on

a loan given to M/s Mamta Traders. On 30.7.2009 it had been recorded

that Oriental Bank of Commerce who had the original title documents of

this property (pursuant to a loan which had been granted by them to

defendant nos.2 and 3) had returned these documents to the plaintiffs.

Plaintiffs had perfected their title in view of the sale deeds which has

been executed in their favour by defendant nos.2 and 3. On 10.4.2008

defendant no.3 had executed a sale deed in favour of the plaintiff qua the

ground floor and the terrace rights of the suit property. The subsequent

sale deed dated 17.10.2008 was executed by defendant no.2 in favour of

the plaintiff qua the first floor and the second floor of the suit property.

Both these documents are admitted documents.

45 The issue which has to be answered by this Court is, as to which

of the two sets of documents are genuine i.e. the documents through

which the plaintiffs had acquired title and on the strength of which

defendant no.2 and 3 had executed sale deeds in favour of the plaintiffs

or the document of the defendants.

46 The aforenoted discussion constrains this Court to answer this

issue in favour of the plaintiff. The sale deed dated 10.4.2008 and

17.10.2008 executed in favour of the plaintiffs on the strength of the

documents of defendant nos.2 and 3 are the genuine documents. The

documents of the defendant no.1 qua the same property are forged and

fabricated. Plaintiffs are accordingly entitled to the relief of declaration

and permanent injunction as prayed for. All these issues are decided in

favour of the plaintiff and against the defendant.

47 This Court has been informed that defendant no.1 has received a

sum of Rs.1.69 crores by the sale of the ground floor of the property.

This principal claim was Rs.1.50 crores. The sum of Rs.1.50 crores

deposited with this Court in terms of the order dated 03.02.2010 is liable

to be refunded back to the plaintiffs (along with accruing interest).

Ordered accordingly.

48 The suit of the plaintiff is decreed. Costs of the suit is also

awarded in favour of the plaintiff. Decree sheet be drawn up. File be

consigned to record room.

INDERMEET KAUR, J

FEBRUARY 06, 2014 ndn