THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 10th MARCH, 2022
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RSA No.04 of 2020
0
Appellant : Ashok Kumar Subba
versus
Respondents : Kamal Kumari Subba and Others
Appeal under Section 100 of the Code of Civil Procedure, 1908
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Appearance
Mr. M. N. Dhungel and Ms. Rachana Rai, Advocates for the Appellant.
Mr. Vivek Anand Basnett, Advocate for Respondent No.1.
Mr. C. K. Kumai, Advocate for Respondent No.2.
Mr. S. K. Chettri, Government Advocate with Ms. Pema Bhutia,
Assistant Government Advocate for Respondent No.3.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant herein filed a Suit before the Learned
Trial Court being Title Suit No.33 of 2014, claiming to be the owner
of four and half storeys of a five storied building, standing on two
contiguous plots of land in Gangtok, East Sikkim. That, the suit
premises were acquired by him in the name of his wife in the year
2005, having obtained Bank loan in his wife's name and paid the
consideration amount of Rs.90,00,000/- (Rupees ninety lakhs)
only. He stood as Guarantor for the loan in terms of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002. Being in the business RSA No.04 of 2020 2
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
of lottery, he repaid a sum of 45,88,461/- (Rupees forty five lakhs,
eighty eight thousand, four hundred and sixty one) only, to the
Bank from his own resources, but an amount of Rs.64,71,000/-
(Rupees sixty four lakhs and seventy one thousand) only, was not
disbursed by the lender Bank leading to acute financial crisis for
the Appellant. Consequently, both he and the Respondent No.1,
his wife, decided to dispose of the suit premises to the Respondent
No.2 at a consideration value of Rs.3,00,00,000/- (Rupees three
crores) only, vide an Agreement dated 18-04-2013. That, both
Respondent No.1 and Respondent No.2 colluded and coerced him
into signing a "No Objection Certificate" (NOC) to sell the property,
assuring him that the excess of the sale proceeds after payment of
loan would be made over to him. A total amount of
Rs.1,10,00,000/- (Rupees one crore and ten lakhs) only, was paid
by the Respondent No.2, on his behalf, to liquidate the loan
account as a one time settlement. He averred that the Agreement
for Sale is void since properties of a tribal to which community he
belongs, cannot be transferred to Respondent No.2, a non-tribal.
In order to prevent registration of the suit premises in the name of
Respondent No.2 the Appellant issued a Notice under Section 80 of
the Code of Civil Procedure, 1908 (CPC). The Plaint was
accompanied by an application under Order XXXIX Rules 1 and 2 of
the CPC wherein the Appellant inter alia averred that he had signed
on the NOC but having come to learn that the transaction between
Respondent No.1 and Respondent No.2 was illegal he withdrew it.
That, Respondent No.1 in fact had no Stridhan to purchase the
properties. Hence, the prayers in the Plaint inter alia seeking a
declaration that the NOC was void ab initio; that the Respondent RSA No.04 of 2020 3
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
No.1 had no right, title and interest in the suit premises and
transfer of the properties to the Respondent No.2 would be illegal,
void and inoperative being in contravention to the Prohibition of
Benami Property Transactions Act, 1988.
2. In her written statement the Respondent No.1 claimed
to be from a reputed family besides which she was a 50% partner
in the lottery business along with the Appellant as also in his
business venture in Nepal. While denying and disputing the
averments of the Appellant regarding ownership of the property
she claimed to be the sole owner of the suit premises having
purchased the contiguous plots in 1988 from two different sellers
with her Stridhan. After purchase she constructed a multistoried
building on the said plots of land. In the year 2005, she availed of
a loan of Rs.90,00,000/- (Rupees ninety lakhs) only, from the
United Bank of India, for renovation of the building as the sole
borrower and the Appellant stood as a Guarantor. That, in 2011,
on account of several reminders from the Bank for non-repayment
of loan she through her son made a request to the Respondent
No.2 who helped her repay the loan amount, thus the Suit having
no basis be dismissed with exemplary costs.
3. The Respondent No.2 in his written statement denied
and disputed the Suit of the Appellant as being based on falsity and
concealment of facts. That, in fact, he and the Respondent No.1
had executed a Money Receipt/Agreement of Sale, whereby he
agreed to purchase the suit premises for a consideration of
Rs.3,00,00,000/- (Rupees three crores) only, of which part
payment of Rs.1,10,00,000/- (Rupees one crore and ten lakhs)
only, was made for liquidation of the Bank loan of Respondent RSA No.04 of 2020 4
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
No.1. That, they had never entered into an Agreement with the
Appellant nor promised to pay him the remnants of the sale
amount after deduction of loan amount. That, claim of execution
of an NOC was fictitious, hence the Appellant's Suit be dismissed.
4. On the basis of the pleadings of the parties the Learned
Trial Court settled the following issues for determination;
(a) Whether the Plaintiff is the absolute owner of suit property having bought the same for his earnings?
(b) Whether the Defendant No.1 is the bona fide and absolute owner of the suit property having purchased the same from her Stridhan?
(c) Whether the Defendant No.1 had the right to sell the suit property to Defendant No.2?
(d) Whether the Sale Deed dated 21-04-2014 and other related documents with respect to transaction of the suit property are illegal, void, inoperative and against the law of the land?
(e) Whether the Defendant No.2 is the bona fide purchaser of the suit property having paid consideration amount for the same and whether he is not prevented from Scheduled Castes and Scheduled Tribes laws of Sikkim?
(f) Whether the Plaintiff has the sole authority to deal with the property in the capacity of Karta of the family?
(g) Whether the Plaintiff is the absolute owner of the suit property having purchased the same with his personal earnings in the Benami of his wife, i.e., Defendant No.1?
5. Issues (a) and (g) were taken up together for
consideration and the Learned Trial Court decided the said Issues
against the Appellant on his inability to prove that the suit property
was purchased benami by him from his earnings and registered in RSA No.04 of 2020 5
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
the name of Respondent No.1. Issue (f) was also decided against
the Appellant with the observation that the existence of a Joint
Hindu Family or coparcenary could not be proved. Issue (b) also
went against the Appellant, the Learned Trial Court having
concluded that the Respondent No.1 is the bona fide and absolute
owner of the suit property which was purchased from her Stridhan.
Issue (c) was decided in favour of the Respondent No.1 with the
observation that the other Issues had been decided in her favour.
In Issue (d) it was found that there was no express bar against the
Respondent No.2 from holding the suit building and there was no
illegality in the Sale Deed, dated 21-04-2014 and other related
documents. Issues (d) and (e) went in favour of the Respondent
No.2. The Suit of the Appellant thus stood dismissed.
6. Aggrieved thereof, the Appellant was in Appeal before
the Learned Court of the District Judge, Special Division II, at
Gangtok, which after due consideration of all the facts and
evidence including documentary evidence furnished upheld the
Judgment of the Learned Trial Court. The Appellant is now before
this Court aggrieved by the decision of the Learned First Appellate
Court.
7. This Court admitted the instant Second Appeal by
formulating the following substantial question of law;
(i) Whether the Learned Courts below failed to appreciate the evidence, including the documentary evidence, in its correct perspective?
8. Learned Counsel for the Appellant advancing his
arguments conceded that there were no documents to establish
purchase of the suit property by the Appellant or registration of the RSA No.04 of 2020 6
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
property in his name. That, admittedly the suit property and the
land on which it stood were registered in the name of the
Respondent No.1. It was contended however that the properties
were purchased by the Appellant from his sole income and the
Learned Trial Court and the Learned First Appellate Court had failed
to appreciate that Exhibit P8 established that the Appellant was the
recipient of a large amount of money which he invested in the suit
property. That, the Respondent No.1 was a housewife sans
income, besides she hailed from a humble family lacking the
wherewithal to purchase such property. Her parents lacked the
finances to give her any Stridhan and her claim of purchase of
properties from her Stridhan is concocted. That, the Appellant
had purchased the property by way of benami transaction in the
name of Respondent No.1 and was thereby the rightful owner. In
the absence of appreciation of the documents of income relied on
by the Appellant to establish that he had purchased the suit
property, the impugned Judgment deserves to be set aside.
9. Learned Counsel for the Respondent No.1 while
reiterating the averments made in her Written Statement,
submitted that Exhibit P8 is dated 04-08-1988, whereas the
Respondent No.1 had already purchased the landed properties in
February, 1988 and July, 1988. That, it is an admitted fact that
the Respondent No.1 was a partner in M/s. Bindhya Agency, the
lottery business, being run by the Appellant and the Respondent
No.1 jointly and she therefore earned 50% of the income therein.
That, the Suit of the Appellant deserves to be dismissed as there is
no proof of his ownership by way of documentary evidence and the RSA No.04 of 2020 7
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
plea of benami transaction is an afterthought besides being legally
untenable.
10. Learned Counsel for the Respondent No.2 submitted
that the bogey of benami transaction has been raised subsequently
as an afterthought. That, the Appellant was merely a Guarantor to
the loan of Rs.90,00,000/- (Rupees ninety lakhs) only, obtained by
the Respondent No.1 for the purposes of renovation of her building
to transform it into a Hotel. Before the Debt Recovery Tribunal in
Guwahati the Appellant was the Power of Attorney holder of the
Respondent No.1, he however made no claim of ownership of
property. That, his claim of ownership and benami transaction
arose only after one Bimal Kumar Jain filed a Title Suit No.412 of
2013 (Bimal Kumar Jain vs. Smt. Kamal Kumari Subba and
Another) before the Learned Civil Judge, East Sikkim, at Gangtok,
in which Second Appeal was filed in this Court. It is not disputed
by the Appellant that the documents of Title are in the name of the
Respondent No.1 and the Appellant has shown nothing to establish
that he is the owner. The Appellant has thus not come with clean
hands before the Court, accordingly this Appeal should be
dismissed with exemplary costs.
11. Learned Government Advocate appearing for
Respondent No.3 submitted that no reliefs were sought from him
and thus he had no submissions to put forth.
12. The submissions advanced by Learned Counsel for the
parties were heard at length and duly considered. The pleadings,
all evidence, documents on record and the Judgments of the
Learned Courts below have been carefully perused. RSA No.04 of 2020 8
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
13. While taking up the substantial question of law
formulated hereinabove it is essential to mention that I have
perused documents Exhibit P1 to Exhibit P206 relied on by the
Appellant. The documents have no connection whatsoever with the
instant matter in which the Appellant is primarily to prove that he
is the owner of the suit premises as claimed by him. Exhibit P188
dated 27-06-2005 is an application filed by the Respondent No.1
before the Bank Manager of United Bank of India seeking a Term
Loan of Rs.154.71 lakhs (Rupees one crore, fifty four lakhs and
seven-one thousand) only. The Appellant is neither the applicant
nor does the document mention him. Exhibit P194 is a money
receipt executed between Respondent No.1 and Respondent No.2
for purchase of the suit properties for a consideration value of
Rs.3,00,00,000/- (Rupees three crores) only. The Appellant is a
witness to the execution of this document of his own volition,
thereby well aware of what transpired between the Respondents
regarding sale and purchase of the suit property. He lodged no
complaint of having been coerced by the Respondents to execute
any document before any authority. Exhibit 8 relied on by the
Appellant, is proof of refund of Prize Money amounting to
Rs.13,25,600/- (Rupees thirteen lakhs twenty five thousand and
six hundred) only, dated 04-08-1988. How this document assumes
importance or buttresses the case of the Appellant as the alleged
purchaser of the suit properties cannot be comprehended. The
other documents relied on by the Appellant being Exhibit 1 to
Exhibit 187 pertain to the lottery business of M/s. Bindhya Agency
with its Office in Lajpat Nagar, New Delhi, and lend no credence to
the claim of the Appellant with regard to purchase and ownership RSA No.04 of 2020 9
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
of the suit properties. Similarly, Exhibit 189 to Exhibit 206 are of
no assistance whatsoever to establish even the prima facie case of
the Appellant, this despite walking meticulously through the
evidence and documents relied on by him. It thus emerges with
clarity that he has no documentary evidence whatsoever to verify
his claim of ownership over the suit property. To a large extent
the documents indicate amounts of money received by the
Appellant from his lottery business, but this alone does not suffice
to establish that he purchased the suit property sans specific trail
of income, investment, viz., purchase of the suit property, and
registration of it in his name.
14. Now, coming to the question of benami transaction.
Section 2(9)(A)(b)(iii) of the Prohibition of Benami Property
Transactions Act, 1988, provides as follows;
"2. ................................................................. (1) ............................................................ (2) ............................................................ (3) ............................................................ (4) ............................................................ (5) ............................................................ (6) ............................................................ (7) ............................................................ (8) ............................................................ (9) "benami transaction" means,--
(A) a transaction or an arrangement--
(a) ........................................
(b) ......................................... except when the property is held by--
(i) ...........................................
(ii) ............................................
(iii) any person being an
individual in the name of
his spouse or in the name
of any child of such
individual and the
consideration for such
property has been
RSA No.04 of 2020 10
Ashok Kumar Subba vs. Kamal Kumari Subba and Others
provided or paid out of the known sources of the individual;
(iv) ......................................."
The legal provision is self-explanatory and the Appellant
cannot take shelter under this provision.
15. It thus stands to conclude that the Appellant failed to
establish even a prima facie case and his Suit was rightly
dismissed. The concurrent findings of the Learned Courts below
are upheld. The impugned Judgment and Decree of the Learned
First Appellate Court warrants no interference.
16. Appeal is dismissed.
17. No order as to costs.
18. Pending applications, if any, also stand disposed of
19. Copy each of this Judgment be sent to the Learned
Courts below for information along with records.
( Meenakshi Madan Rai ) Judge 10-03-2022
ds
