Ashok Kedia Proprietor Of M/S Ronak ... vs Ronak Kedia Director Of M/S Dytex ...
2024 Latest Caselaw 912 Guj

Gujarat High Court

Ashok Kedia Proprietor Of M/S Ronak ... vs Ronak Kedia Director Of M/S Dytex ... on 2 February, 2024

                                                                                       NEUTRAL CITATION




      C/FA/4447/2023                                   ORDER DATED: 02/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 4447 of 2023

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       ASHOK KEDIA PROPRIETOR OF M/S RONAK PROCESSORS
                            Versus
     RONAK KEDIA DIRECTOR OF M/S DYTEX INDUSTRIES PVT. LTD.
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                  Date : 02/02/2024

                                   ORAL ORDER

1. Heard learned advocate Mr.Prabhakar Upadyay

for the appellant.

2. By way of the present First Appeal under

Section 96 of the Civil Procedure Code, 1908, the

appellant has challenged the judgment and decree dated

18.08.2023 passed by the learned City Civil & Sessions

Court, Ahmedabad in Civil Suit (CCC) No.2655 of 2015,

whereby the suit of the appellant came to be dismissed.

3. The brief facts leading to the present appeal are

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as under:-

3.1 The appellant-original plaintiff has filed a Civil

Suit No.2655 of 2015 before the Civil Court, Ahmedabad

for the Recovery of possession of the property situated at

Plot Nos.11 and 13, Revenue Survey No.306, admeasuring

about 1988 square yards with shed which is known as

Ronak Compound in Isanpur village, Dist. Ahmedabad. A

registered Lease Deed for Land was entered into between

the appellant and respondent No.2 on 15.12.2011 and the

possession of the lease hold plot was handed-over to

defendant - respondent No.2. As per the registered Lease

Deed for Land (hereinafter referred to as 'Lease Deed'),

the period of lease was fixed for the period of years 28

years and 11 months and the rent was fixed at Rs.11,000/-

per annum. Pursuant to the said Lease Deed, defendant

had obtained Over Draft facility from the Punjab & Sind

Bank, Gandhi Road Branch, Ahmedabad. Since the

defendant did not maintain the account regularly with the

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Punjab and Sindh Bank, the plaintiff cancelled the Lease

Deed and issued a notice on 02.07.2015 praying for the

possession of the suit property. The appellant is the father

of respondent No.1. The defendant has further let out the

suit property to the various persons by deed of leave and

license agreement. The plaintiff has prayed for the

following prayers in the plaint:-

"11(A) Pass a judgment and Decree to declare that the lease deed entered between Plaintiff and the defendant, which was registered in the office of sub registrar Ahmedabad-5 (Narol) dated 15.12.2011 vide Sr.No.14817 Null and Void and also directing to defendant to handover the vacant and peaceful possession of the suit premises which is situated at Plot No.11 and 13 Revenue Survey No.306, admeasuring 1988 sq.yads. with shed which is known as Ronak Compound in Isanpur Village of district Ahmedabad.

(B) The defendant, his men servants and agents may be restrained from transferring assigning the parting with the possession of the immovable property situated at Plot No.11 & 13 Revenue Survey No.306, admeasuring 1988 sq. yds. with shed which is known as Ronak Compound towards Gate No.2 in Isanpur Village of district Ahmedabad by Ad Interim Injunction during the pendency and final hearing of the suit.

(C) The Defendant and his agent, assignees, successors shall be restrain from entering in the suit

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premises till the final disposal of the suit.

(C) The Occupants of the premises let out by defendant may be directed to deposit the license fees/rent regularly made to the plaintiff to enable him to deposit in the bank loan account of Punjab & Sind Bank.

(D) The Defendant may be directed to deposit installments which are outstanding as well as recurring in the Punjab & Sind Bank regularly alongwith other charges and interest and penalty.

(E) Any other or further relief that may be deemed just and proper in the circumstances of case of be granted."

4. Learned advocate for the appellant has submitted

that on 15.12.2011, the plaintiff had entered into an

Agreement for Lease with defendant for the land situated

at Plot Nos.11 and 13, Revenue Survey No.306,

admeasuring about 1988 square yards, Ronak Compound,

Near Mahalaxmi Fabrics, Narol, Ahmedabad for a period

of 28 years 11 months and the agreed rent was

Rs.11,000/- per annum.

4.1 It is the submission of learned advocate for the

appellant that defendant had obtained Over Draft facility

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of Rs.80,00,000/- from Punjab & Sind Bank and availed

vehicle loan of Rs.6,50,000/-. The defendant did not repay

the due amount to the Bank. However, the plaintiff is

discharging the liability of Over Draft facility.

4.2 It is further submitted that the defendant has

not paid the agreed amount of rent as per the registered

Lease Deed dated 15.12.2011. It is also pointed out by the

learned advocate for the appellant that pursuant to the

default committed by the defendant, the said Bank issued

notices to the plaintiff as well as defendant.

4.3 It is further submitted that the defendant is not

carrying out any activity over the suit property and the

plaintiff was not willing to continue defendant as a Lessee

in the said property and has cancelled the registered Lease

Deed dated 15.12.2011 by issuing the notice dated

02.07.2015. Since the defendant did not act upon the said

notice, the plaintiff was constrained to file the suit for a

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relief of possession and cancellation of the said registered

Lease Deed and also for the relief of permanent injunction

restraining the defendant from transferring or assigning or

parting with the possession of the suit property. It is also

prayed by the plaintiff that the occupants of the suit

property may also be directed to deposit the license

fees/rent amount to the plaintiff to enable him to repay

the loan amount in the account of Punjab & Sind Bank. It

is further prayed that the defendant may be directed to

deposit the installments, which are outstanding to the

Bank regularly alongwith other charges, interest and

penalty.

5. Though the summons of the suit was served,

defendant did not appear and did not file any Written

Statement. Issues were framed by the learned trial Court

vide Ex.89, which are reproduced hereunder:-

1. Whether the plaintiff proves that the lease

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deed dated 15.12.2011 is null and void?

2. Whether the plaintiff proves that they are entitled to take vacant and peaceful possession of the suit premises from the defendant?

3. Whether the plaintiff is entitled to get relief as prayed for in para-11 of the plaint?

4. What order and decree?

6. The plaintiff filed an affidavit in lieu of

Examination-in-chief vide Ex.94 and produced the

documentary evidences.

7. The submission of learned advocate for the

appellant is that the learned trial Court has failed to

appreciate the fact that the defendant has committed

breach of one of the terms and conditions of the registered

Lease Deed. The defendant after taking over the possession

of the suit land, did not pay the agreed rent to the

plaintiff.

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8. I have heard the learned advocate for the

appellant and perused the copy of registered Lease Deed

which is placed on record during the course of hearing by

the learned advocate for the appellant. The same is taken

on record. Upon perusal of the said registered Lease Deed,

it transpires that the defendant was permitted to sublet or

transfer or assign tenancy right as well as permitted to

offer the suit property on mortgage/collateral

security/hypothecate to any financial institution. Admitted

fact is that the plaintiff also stood as a guarantor in the

Over Draft facility which was availed by the defendant. It

is pertinent to observe that the Bank is not made a party

to the suit proceedings. The learned trial Court has

considered the various clauses of the registered Lease

Deed, more particularly, clause 15(b) and 15(d), which

contemplate a right to transfer or assign tenancy right and

a right to mortgage and to create a charge over the

property by way of collateral security. It has been

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observed by the learned trial Court that the proceedings

are initiated by the Punjab and Sind Bank against the

plaintiff and defendant before the learned Debts Recovery

Tribunal, Ahmedabad.

9. This Court finds that since the suit is between

the plaintiff and defendant No.1, who are father and son,

it seems to be a collusive suit just to take the undue

benefit in proceedings before the learned Debts Recovery

Tribunal which can be observed from the impugned

judgment. A notarised mutual understanding Agreement

dated 28.03.2021 executed between the plaintiff and

defendant No.1, regarding creation of a co-ownership

right, was executed in favour of defendant No.1. Thus,

after said mutual understanding Agreement, the registered

Lease Deed dated 15.12.2011 came to be executed. It

could be gathered from the averments made in the plaint

that the plaintiff was fully aware about the fact that the

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defendant was not regularly maintaining the Account with

the Bank and the said Bank has issued notices to plaintiff

and defendant. However, plaint is silent regarding the

dates of notices and plaintiff is also silent about the

proceedings initiated by the Bank under the SARFAESI Act

before the learned Debts Recovery Tribunal. The learned

trial Court has rightly considered the fact that the

defendant has chosen not to defend the suit and simply on

that ground, the plaintiff cannot succeed. The plaintiff has

to succeed on its own strength and not on the witnesses of

defendant. The observations and findings which have been

arrived at by the learned trial Court are completely in

consonance with the oral evidence as well as documents

available before the learned trial court. Hence, I do not

find any reason to interfere with the findings of the trial

Court, more particularly, when this Court has observed

that this suit being a collusive suit, the plaintiff cannot not

have the reliefs claimed in the plaint. Since the property is

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a mortgaged property and the Bank has charge over the

suit property, the plaintiff cannot have the possession of

the suit property. Moreover, Bank is not made a party to

the suit. Hence, plaintiff cannot have possession of suit

property by avoiding the rights of the Bank.

10. With these observations, First Appeal lacks merit

and deserves to be dismissed. Accordingly, it is dismissed

at the admission stage.

(D. M. DESAI,J) MANOJ