Page No.# 1/ vs Prafulla Deka
2025 Latest Caselaw 909 Gua

Gauhati High Court

Page No.# 1/ vs Prafulla Deka on 6 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/10

GAHC010036222022




                                                             2025:GAU-AS:7613

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

                          Case No. : CRP/18/2022

         UCO BANK
         A BANKING COMPANY AND A BODY CORPORATE CONSTITUTED UNDER
         THE BANKING COMPANIES (TRANSFER OF UNDERTAKING) ACT, 1970
         HAVING ITS REGISTERED OFFICE AT 10 BTM SARANI, BRABOURNE
         ROAD, KOLKATA DOING BANKING BUSINESS THROUGHOUT INDIA
         THROUGH DIVERSE ZONAL OFFICES AND BRANCH OFFICES AND ONE OF
         ITS ZONAL OFFICE SITUATED AT GUWAHATI ZONAL OFFICE AND
         BRANCH OFFICE KNOWN AS UCO BANK, SILPUKHURI BRANCH,
         SILPUKHURI, GUWAHATI-781003, REP. BY THE ASSTT. GENERAL
         MANAGER CUM AUTHORIZED OFFICER OF UCO BANK, SILPUKHURI
         BRANCH, SILPUKHURI, GUWAHATI-781003, DIST.- KAMRUP(M), ASSAM



         VERSUS

         PRAFULLA DEKA
         S/O- LATE MAHENDRA NATH DEKA, R/O- HATIGAON, NEAR NAMGHAR,
         P.O. AND P.S. DISPUR, GUWAHATI-781038, DIST.- KAMRUP(M), ASSAM

Advocate for the Petitioner   : Mr. P. C. Goswami, Advocate
                               Mr. J. M. Gogoi, Advocate

Advocate for the Respondent : Mr. B. D. Deka, Advocate
                               BEFORE
          HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                     Date of Hearing          : 06.06.2025

                     Date of Judgment         : 06.06.2025
                                                          Page No.# 2/10

              JUDGMENT AND ORDER (ORAL)

Heard Mr. P. C. Goswami, the learned counsel appearing on behalf of the petitioner and Mr. B. D. Deka, the learned counsel who appears on behalf of the respondent.

2. The jurisdiction under Section 115 of the Code of Civil Procedure, 1908 (for short, 'the Code') has been invoked to challenge the rejection of the application filed under Order VII Rule 11(d) of the Code for rejection of the plaint by the Court of the learned Civil Judge (Senior Division) No.3, Kamrup (M) at Guwahati (hereinafter referred to as 'the learned Trial Court').

3. Mr. P. C. Goswami, the learned counsel appearing on behalf of the petitioner submitted that by virtue of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the Act of 2002'), the Civil Court has no jurisdiction in matters specified under Section 17 of the Act of 2002 and as such the suit was barred for which the suit ought to have rejected by the learned Trial Court which the learned Trial Court failed to do so while exercising its jurisdiction for which the instant proceedings have been filed.

4. Taking into account the order dated 15.11.2021 which is impugned in the instant proceedings being an order passed in a Page No.# 3/10

proceedings initiated under Order VII Rule 11(d) of the Code, the Court is therefore required to only look into the contents of the plaint to ascertain whether the suit appears from the statement in the plaint to be barred by any law.

5. The case of the respondent herein who instituted a suit being Title Suit No.240/2016 is that he is the owner of two plots of land. The first plot of land is specifically described in Schedule- A to the plaint and the second plot of land is described in Schedule-B to the plaint. It is the further case of the plaintiff that the Schedule-A land admeasures 2 kathas 10 lechas which is covered by Dag No.221/222(old)/146(New) of KP Patta No.118. The other plot of land admeasuring 1 katha is also covered by the same Dag and Patta Number. It is however relevant to take note of that from a perusal of the plaint, it is seen that there is a three storey building in Schedule-B land and a holding No.2880.

6. It is the further case of the plaintiff that the Schedule-A land was initially mortgaged to the Central Bank of India for availing a home loan of Rs.7,50,000/-. Subsequently as the plaintiff required further money and the defendant No.1 was agreeable to provide further loan, the mortgage over the Schedule-A land was transferred by the Central Bank to the UCO Bank and in that process, the plaintiff took a loan of Rs.22,00,000/-.

Page No.# 4/10

7. It is the further case of the plaintiff that in the last week of February, 2016, some unknown persons started to come to the residence of the plaintiff which is in Schedule-B land. The plaintiff made enquiries and was surprised to learn that the said Schedule-B land and the house standing thereon was proposed to be auctioned by the defendant Nos.1, 2 & 3. Under such circumstances, the plaintiff enquired with the defendant Bank as regards such rumor of auctioning of the property belonging to the plaintiff and the plaintiff was shocked and surprised to come to learn that the defendant No.1 had sanctioned a loan in favour of the defendant No.4 of an amount of Rs.23 crores and odd wherein the plaintiff was shown as a guarantor creating equitable mortgage of the Schedule-A- land. The plaintiff was also surprised to learn that in the creation of the said equitable mortgage, not only the Schedule-A land has been shown, but the three storey building had been also shown. The plaintiff categorically denied in the plaint that the plaintiff was a guarantor to the cash credit facility which was afforded to the defendant No.4 and the plaintiff had taken any part in such transaction. It is under such circumstances, the plaintiff instituted the suit alleging fraud being committed by the defendants in concert and collusion with each other and thereby to take over the property belonging to the plaintiff. The plaintiff Page No.# 5/10

therefore sought for the following reliefs which are reproduced herein under:

(i) Declaration that creation of collateral security of the Schedule A land and house against the loan and/or cash credit given to the defendant No.4 and 5 by the defendant No.1 is an act of fraud, cheating, collusion between the defendant No.1 and 2 and the defendant No.4 and 5 and not binding upon the plaintiff and the proforma defendant No.6 in any manner.

(ii) Declaration that the 3 storied RCC building is (having ground floor and first floor completed and having roof at the second floor only) standing upon another plot of land measuring 1 Katha of land covered by Kheraj Miyadi Patta No. 118 comprising in Dag No. 146.

(iii) Declaration that Schedule C is false, fabricated, fictitious, imaginary, hypothetical, imaginary, forged and created by the defendant No.1 and the defendant Nos.4 and 5 in collusion with each other.

(iv) Permanent injunction restraining the defendant Nos.1 and 2, their employees, agents, workers and associates from taking over the actual physical possession the schedule A and B suit properties and from auctioning, Page No.# 6/10

encumbering, transferring, alienating and changing the nature and character of the Schedule A and B suit properties in any manner and also from disturbing the peaceful possession of plaintiff over the A and B Schedules suit land/property in any manner.

(v) Any other relief(s) to which the plaintiff is entitled to in law and equity.

(vi) The cost of the suit.

8. In the backdrop of the above, this Court duly takes note of the order being passed by the learned Trial Court dated 15.11.2021 wherein the learned Trial Court was of the opinion that as the allegation of fraud was being alleged in the suit, the Civil Court would have jurisdiction in as much as the learned Tribunal under the Act of 2002, i.e. the Debt Recovery Tribunal has not been entrusted with the power to deal with allegations of fraud. Under such circumstances, the said application filed under Order VII Rule 11(d) by the defendant No.1 who is the petitioner herein was rejected.

9. I have heard the learned counsels appearing on behalf of the parties and given my anxious consideration.

10. This Court has also perused the plaint as well as the documents which were filed along with the plaint. Apart from Page No.# 7/10

that, this Court has also perused the impugned order.

11. The law is well settled that mere allegation of fraud in the plaint would not overcome the bar under Section 34 of the Act of 2002. In the case of Electrosteel Castings Limited vs. UV Asset Reconstruction Company Limited & Others, reported in (2022) 2

SCC 573, the Supreme Court opined that mere allegation of fraud would not oust the jurisdiction under Section 34 of the Act of 2002. The allegation of fraud should contain due particulars as to how the fraud was committed. It was further opined by the Supreme Court in the said judgment that allegation of fraud without any particulars and only with a view to get out of the bar under Section 34 of the Act of 2022 and by way of clever drafting, the plaintiff intended to bring the suit despite the bar under Section 34 of the Act of 2002 was not permissible and such actions should not be approved. Therefore, the question which arises is on the basis of the allegations contained can it be said that the allegations of fraud or the allegations so contained in the plaint has detail material particulars thereby to oust the jurisdiction of the Debt Recovery Tribunal.

12. Mr. B. D. Deka, the learned counsel who appears on behalf of the plaintiff submitted that along with the plaint, the plaintiff had filed various documents which is required to be taken into account in view of the judgment of the Supreme Court in the Page No.# 8/10

case of Liverpool & London S.P. & I Asson. Ltd vs. M.V. Sea Success I & Anr, reported in (2004) 9 SCC 512 The learned counsel appearing on behalf of the plaintiff drew the attention of this Court to document No.17 as well as the document No.18 so filed along with the plaint. He submitted that the plaintiff did not sign those documents and the plaintiff had reasons to believe that at the time of taking loan of Rs.22,00,000/-, the plaintiff was asked to sign on certain dotted lines wherein the plaintiff had duly signed. The learned counsel appearing on behalf of the respondent referred to paragraph Nos.29 & 37 of the plaint and submitted that these are specific allegations made.

13. This Court has duly perused the documents being document Nos.17 & 18 which have been filed along with the plaint and has also perused paragraph Nos.29, 37 & 38 of the plaint and it is seen that by these averments made, there are clear allegations of fraud. The learned counsel for the plaintiff further submitted that it has been categorically mentioned in the plaint that as the Title Deed was deposited with the defendant No.1 Bank for the purpose of taking the loan of Rs.22,00,000/- in the year 2008, the question of again depositing the same Title Deed for another loan does not arise and these specific allegations are made in paragraph Nos.26, 29 & 30.

14. Taking into account the above, this Court is therefore of the Page No.# 9/10

opinion that from a reading of the plaint it cannot be said that the allegations so made in the plaint were mere allegations of fraud, but there were allegations of fraud with material particulars stated therein.

15. Considering the above, it is therefore the opinion of this Court that the learned Trial Court was justified in rejecting the application for rejection of the plaint in as much as the jurisdiction of the learned Trial Court was not ousted by virtue of Section 34 of the Act of 2002.

16. Considering the above, this Court does not find any merit in the instant proceedings for which the instant petition stands dismissed.

17. The interim order so passed by this Court thereby staying the further proceedings of Title Suit No.240/2016 stands vacated and the parties herein are directed to appear before the learned Trial Court on 25.06.2025 for further proceedings of the suit.

18. Before parting with the record, this Court however finds it very pertinent to take note of the submission of Mr. P. C. Goswami, the learned counsel appearing on behalf of the petitioner who submitted that the suit is of the year 2016 and there is an injunction order operating thereby restraining the petitioner to take any action. The learned counsel for the Page No.# 10/10

petitioner further submitted that the recovery which is being sought to be done is the money belonging to a public nationalized bank and as such, the money is the public money. He therefore submitted the suit filed in the year 2016 was still at the stage of framing of the issues. He therefore submitted that this Court may pass appropriate directions for directing the learned Trial Court to dispose of the suit on an early date.

19. This Court has given a due consideration to the said submission and it is of the opinion that the suit as on date is almost a decade old and further there being an injunction order in favour of the plaintiff thereby restraining the defendants to act, this Court would request the learned Trial Court to expedite the disposal of the suit, taking into account the business of the Court. This Court further requests the learned Trial Court to make an endeavour to dispose of the suit preferably within 10 months from the date of the appearance of both the parties.

JUDGE

Comparing Assistant