Telangana High Court
Mr.K.Subrahmanya Sastry Died And 3 ... vs Mr. R.V.S. Chandra Sekhara Rao on 20 January, 2025
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.285 of 2020
JUDGMENT:
This appeal is filed against the Judgment and decree
dated 13.12.2019 in O.S.No.816 of 2015, passed by the learned
XVI-Additional District and Sessions Judge-cum-III-Additional
Family Court Judge, Ranga Reddy District, Malkajgiri.
2. The suit vide O.S.No.816 of 2015 was filed by the
respondent/plaintiff against appellants/defendants for recovery
of possession of suit schedule property and for damages with
costs. Respondent/plaintiff was examined himself as P.W.1 and
also got examined P.W.2 and C.W.1 on his behalf and marked
Exs.A1 to A14 on his behalf. Appellant No.3/defendant No.3
was examined herself as D.W.1 and marked Exs.B1 and B2 on
behalf of defendants. The trial Court, after considering the
evidence on record and arguments of both sides, decreed the
suit in part. Regarding recovery of possession,
appellants/defendants were directed to handover the vacant
possession to the respondent/plaintiff within two months from
the date of Judgment and the suit regarding damages was
dismissed. Aggrieved by the said Judgment and decree,
defendants therein preferred the present appeal.
3. Learned Counsel for the appellants/defendants mainly
contended that in a sale certificate dated 31.01.2004, there are
lot of defectives and errors, but they were not considered by the
trial Court. He also stated that when appellants made enquiries
with the Sub-Registrar, Malkajgiri, regarding the registration of
document No.1 of 2004 of sale certificate dated 31.01.2004
issued to the respondent/plaintiff, they came to know through a
letter vide Lr.No.135 of 2019 dated 30.12.2019, that the said
document was not registered in their office, as such
respondent/plaintiff colluded with the authorities and brought
into existence of the said sale certificate and played fraud
against the appellants. Though the respondent/plaintiff did not
pay the entire sale consideration of Rs.15,00,000/-, sale
certificate was issued to him and sale was not confirmed.
4. Learned Counsel for the appellants further contended
that the conduct of the sale itself is not in accordance with the
law and without proper verification confirmed the sale straight
away and thus handing over of the possession does not arise. It
was also stated by C.W.1 that the entire auction amount of
Rs.15,00,000/- was not credited to the loan account. Though
the respondent/plaintiff stated that he paid the amount in cash,
he has not filed payment receipt issued by the Bank. The name
of the respondent/plaintiff was not reflected in the
encumbrance certificate, as the sale certificate was not
registered in his name. Out of total bid amount of
Rs.15,00,000/-, respondent/plaintiff had paid only
Rs.7,91,493/-. If at all, the respondent/plaintiff has paid the
entire sale consideration, his title deeds would have been
released, but they are still with the Bank. On Page No.2 of
Ex.A1, Registrar's Stamp was strike off, which clearly shows
that it was not registered properly and irregularities were
committed. Therefore, requested the Court to set aside the
Judgment of the trial Court.
5. Parties hereinafter referred to as respondent-plaintiff and
appellants-defendants as arrayed before the trial Court for the
sake of convenience.
6. Initially, plaintiff had filed O.S.No.816 of 2015 against
defendants for recovery of possession of the suit schedule
property and for damages stating that defendant No.1 is the
owner of the house bearing No.24-91/2 (old) and 24-138/10
(new), situated at Anandbagh, Malkajgiri, Hyderabad. Defendant
No.1 had availed a loan of Rs.3,50,000/- from Sri Bharathi Co-
operative Urban Bank Limited, Himayathnagar, Hyderabad. One
B.Shiva Kumar, K.V.Ramana Babu stood as co-obligants to the
loan availed by defendant No.1. B.Shiva Kumar is the owner of
the house bearing No.26-170/43, admeasuring 222 Sq.yrds,
situated in Safilguda, Malkajgiri, Hyderabad. Defendant No.1
had committed default in repayment of the loan amount, as
such Bank initiated proceedings under Section 61 of the APCS
Act 7 of 1964 for recovery of loan amount of Rs.4,92,566/- with
interest. The Arbitrator passed an award on 20.07.2002 under
Section 62(4) of APCS Act 7 of 1964. The Senior Inspector and
Sales Officer conducted the sale of house bearing No.24-91/2
(old) 24-138/10 (new), situated at Anandbagh, Malkajgiri,
Hyderabad, owned by defendant No.1. Before confirmation of
sale, defendant No.1 filed Claim Petition No.2 of 2003 in
E.P.No.320 of 2003 on the file of the Deputy Registrar of
Co-operative Societies, Golconda Division, Hyderabad under
rule 52(14)(1) of A.P.Cooperative Societies Rules, 1964, to set
aside the sale conducted on 27.10.2003, on the ground of
material irregularity, mistake and fraud both in publishing and
conducting of the sale, but the claim petition was dismissed on
31.12.2003.
7. Plaintiff further stated that he had raised loan from LIC
Housing Finance Limited by offering the property purchased by
him in the auction as a security, but he committed default in
payment of loan. Thereupon, LIC Housing Finance Limited
initiated proceedings under the provisions of Securitisation Act,
2002. They approached the Chief Metropolitan Magistrate,
Hyderabad, for assistance in taking possession of the secured
asset under Section 14 of the Act and the Court appointed an
Advocate Commissioner in Crl.M.P.No.26 of 2007 to handover
the possession to LIC Housing Finance Limited. Defendant No.1
filed W.P.No.10281 of 2007, against the Order dated 02.05.2007
passed in Crl.M.P.No.26 of 2007 and also filed an appeal before
the A.P. Co-operative Tribunal, Hyderabad, with condone delay
application, but the said application was dismissed on
21.09.2004. Against the said Order, defendant No.1 filed
W.P.No.17239 of 2004. Defendant No.1 had also filed
W.P.No.16101 of 2005, questioning the award of the Aribitrator
and all the three Writ Petitions were dismissed by this Court on
20.02.2009.
8. Thereafter, L.I.C Housing Finance Limited, has filed a suit
vide O.S.No.547 of 2009 and it was decreed in their favour on
27.04.2011. Subsequently, E.P.No.44 of 2014 was filed and
when the suit property was about to be sold, plaintiff had
borrowed huge amounts from the third parity and paid the
same to the LIC Housing Finance Ltd., and received the original
documents. Plaintiff contended that defendant No.1 was in
illegal occupation, as such he filed C.C.No.1083 of 2006. On
that defendant No.1 and his wife and daughter filed
Crl.P.No.2885 of 2011 and also obtained stay in
Crl.M.P.No.3027 of 2011 in Crl.P.No.2885 of 2011. Defendants
No.1 and 2 occupied the suit schedule property and caused
damages physically and mentally. Defendant No.1 never paid
any property tax and thus plaintiff paid dues of property tax
amounting to Rs.12,365/- vide receipt No.030049077 dated
05.02.2004. Defendants No.1 and 2 are troubling him from
2004 i.e., for 11 years and thus he requested for damages of
Rs.10,00,000/-. He further requested the Court for
dispossession of the defendants from the suit property and for
handover of the possession to him.
9. In the written statement filed by defendants, they denied
the averments of the plaint and stated that there is no cause of
action for the plaintiff to file the suit and the trial Court has no
territorial jurisdiction to entertain the suit. Plaintiff failed to
establish the title and possession and thus not entitled for
injunction and the suit is to be rejected under Order 7 rule
11(b) of CPC. They also stated that suit was liable to be
dismissed for non-joinder of proper and necessary parties and it
was barred by limitation under article 112 of the Limitation Act.
They further stated that defendant No.1 is the absolute owner of
the suit property. He availed loan of Rs.3,50,000/- from Sri
Bharathi Co-operative Urban Bank Limited, Hyderabad. When
he became default in repayment of loan amount, Bank initiated
proceedings for recovery of Rs.4,92,566/- with interest and the
Arbitrator passed an Award on 20.07.2002. He had filed a claim
petition in E.P.No.320 of 2003, before the Deputy Registrar of
Co-operative Societies, Golconda, Hyderabad, to set aside the
sale conducted on 27.10.2003 on the ground of material
irregularity, mistake and fraud both in publishing and
conducting the sale, but the same was dismissed on
31.12.2003. He had also filed three writ petitions and the same
were also dismissed. Defendants further stated that though the
plaintiff purchased the property in the auction as highest
bidder, the sale was not confirmed. Even without confirmation
plaintiff obtained loan from the LIC by mortgaging the suit
schedule property which is not permissible under law. They also
stated that they are the owners of the suit schedule property
and they are residing in the same, plaintiff is no way concerned
with the said property and he has no locus-standi to file the suit
and thus requested the Court to dismiss the suit.
10. The Bank Manager of Sri Bharathi Co-operative Bank was
examined as C.W.1. He stated that the entire auction amount of
Rs.15,00,000/- was not credited to the loan account, but added
that the entire due amount of said particular loan account was
deposited. He further admitted that Shiva Kumar was the
brother of Subramanya Sastry and he was the guarantor. In the
Cross-examination of P.W.1, he stated that he purchased the
suit property for a sum of Rs.15,00,000/-. Ex.A1 was marked
through him.
11. Admittedly, plaintiff purchased the suit property by a
public auction in execution of the Award dated 20.07.2002 on
27.10.2003 and paid the full amount of purchase i.e.,
Rs.15,00,000/- and the sale was duly confirmed on 16.01.2004
and it was registered on 31.01.2004 itself. Merely there was
strike of on the back side of the page, it cannot be stated that
document itself is false. The endorsement regarding
Rs.15,00,000/- is made by Divisional Co-operative Officer,
Golconda Division, Hyderabad. Therefore, the argument of the
defendants that sale was not confirmed and the entire sale
consideration was not paid cannot be accepted. Plaintiff had
also paid the Stamp duty of Rs.82,400/-. Perusal of the writ
petitions dated 20.02.2009 shows that the Order in claim
petition No.02 of 2003 was not challenged, as such the
argument regarding material irregularities in conducting the
auction is not tenable and the said fact attained finality. Though
defendant No.1 tried to file an appeal, it was dismissed by not
condoning the delay application.
12. Admittedly, defendant No.1 has not challenged the sale
certificate issued in favour of auction purchaser. Legal notice
was issued by the plaintiff to the defendants on 25.05.2015
under Ex.A5, in which plaintiff stated all the facts in detail and
requested for handover of the vacant possession and also for
damages of Rs.10,00,000/-, but defendants have not given reply
to that, as such plaintiff filed the suit. There is no dispute
regarding availing of loan and an Award passed by the
Arbitrator to the extent of Rs.4,92,566/- with interest from
20.07.2007 till the date of realization and the said order
attained finality. The trial Court rightly considering the oral and
documentary evidence in detail held that plaintiff is entitled for
recovery of possession of the suit schedule property. Though the
plaintiff claimed for damages of Rs.10,00,000/- including rents
for 11 years, as there was no evidence placed before the trial
Court, his plea regarding damages was rejected. This Court
finds no reason to interfere with the Judgment and decree
passed by the trial Court.
13. In the result, the present appeal suit is devoid of merits
and is dismissed by confirming the Judgment and decree dated
13.12.2019 in O.S.No.816 of 2015 passed by the trial Court.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATE: 20.01.2025
tri
