TMI Blog2020 (11) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... not falling within the exceptions under Section 2 (9) of the Act, then no suit will lie in view of Section 4 of the Act; that there is a clear bar of jurisdiction of civil Courts under Section 45 of the Act and that pending cases have to be transferred to the Adjudicating Authority or Appellate Authority. Exhibit P-9 order is erroneous and unsustainable in law and is liable to be interfered with because when the petitioners have raised a specific plea that the suit is hit by the prohibitions under Sections 4 and 45 of the Act, the Trial Court ought to have considered the said question as a preliminary issue as laid down in T.M.Bagasarwalla v. H.R.Industries [ 1997 (2) TMI 563 - SUPREME COURT] before making an endeavor to decide on Exhibit P-5 application, otherwise as it is commonly said in the idiom it would be like putting the cart before the horse. Thus remit the matter back to the Trial Court for de novo consideration, to decide on the maintainability of the suit in view of Sections 4 and 45 of the Act, as contemplated under Order VII Rule 11 (d) of the Code or decide whether the suit has to be transferred in light of Section 65 of the Act, in which case the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned Exhibit P-9 order has allowed Exhibit P-5, granting leave to the respondent to amend the plaint. It is aggrieved by Exhibit P9 that the petitioners are before this Court. 4. Heard Sri.M.Narendra Kumar, the learned counsel appearing for the petitioners and Sri.Mathew John, the learned counsel appearing for the respondent. 5. Sri.M.Narendra Kumar argued that the oblique intention of the respondent in filing Exhibit P-5 was to claim the benefit of the exception under Section 2 (9) (A) (b) (iv) of the Act, inserted by Benami Transactions (Prohibition) Amendment Act, 2016 (Act 43 of 2016), which came into effect from 1.11.2016. According to him, the amendment is impermissible in law. The sheet anchor of his contentions were that the Trial Court failed to appreciate that this Court had categorically directed Exhibit P-5 application to be reconsidered after adverting to all the contentions including that recorded in Exhibit P-8 judgment. A reading of the averments in Exhibit P-1 plaint would substantiate that the transaction alleged by the respondent is one squarely hit by the provisions of the Act. The jurisdiction of the Trial Court stands ousted in light of Section 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaining to the purchase of plaint B schedule property are as follows: 3. The plaintiff is a permanent resident in the above address. The plaintiff was working in the Air Force and Merchant Navy now leading a retired life with his family at Thodupuzha Taluk . The plaintiff purchased an extent of 30 cents of property in Sy.No.281/3/2 vide Sale deed No.1332/1991 of Thodupuzha SRO dated 18.5.1991. On the same day itself the plaintiff purchased another land just adjoining the property comprised in Sale deed No.1332/1991 having a total extent of 30 cents which is lying on the western side as per Sale deed No.1333/1991 in the name of his sister Mary. The property purchased in the name of plaintiff was belong to Dr.Sundararajan, S/o.Madhavan Pillai Thayyakodathu House, Thodupuzha. The said property is scheduled here under as Plaint A schedule property. Eastern side of the said property is the River, Southern side is the pathway towards the river from the public road, western side is the property of Thayyakkodathu Mahadevan which is conveyed to Mary, the sister of the plaintiff and Northern side is the property of Vellaringattu Chacko. The property purchased in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age obtained from the B schedule property purchased in the name of Mary. To facilitate such development in the plaint B schedule property, the availability of the person in whose name the said property was purchased in station was necessary as a document had to be registered for the same. The plaintiff and his sister was having a smooth and cordial relationship and that the plaintiff never thought that she would raise any claim in respect of the B schedule property. Despite the fact that the plaintiff's sister knew that the plaint B schedule property was purchased in her name, she never made any enquiry about even the whereabouts of the property much less she took the same. Though the total extent of plaint A and B schedule property were purchased by two documents the properties are lying as a compact plot without any separating boundary. The western side of the B schedule property which abuts the pubic road enclosed with a wall with gate affix to the same. The gate was always in the lock and key of plaintiff and he continues to be in absolute possession and enjoyment of the entire 60 cents of A and B schedule properties, uninterruptedly as owner, openly and peacefully from 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion taken or to be taken in pursuance of any power conferred by or under this Act'. (vi) Section 65 of the Act, reads thus: Transfer of pending cases: - (1) Every suit or proceeding in respect of a benami transaction pending in any Court (other than a High Court) or Tribunal or before any forum on the date of the commencement of this Act shall stand transferred to the Adjudicating Authority or the Appellate Tribunal, as the case may be, having jurisdiction in the matter. (2) Where any suit, or other proceeding stands transferred to the Adjudicating Authority or the Appellate Tribunal under sub-section (1) - (a) The Court, Tribunal or other forum shall, as soon as may be, after the transfer, forward the records of the suit, or other proceeding to the Adjudicating Authority or the Appellate Tribunal, as the case may be; (b) the Adjudicating Authority may, on receipt of the records, proceed to deal with the suit, or other proceeding, so far as may be, in the same manner as in the case of a reference made under sub-section (5) of section 24, from the stage which was reached before the transfer or from any earlier stage or de novo as the Adjudicating Authority may de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be transferred to the Adjudicating Authority. However, the Court by Exhibit P-9 impugned order allowed the application for amendment, by holding that the argument addressed does not have any impact on the amendment; that it was not proper to enter into the merits of the case; and that as the amendment Act was in 2016 the plaintiff could have not have raised the matter at the time of filing the suit in 2012. 19. In view of the clear enunciation of law in the above cited precedents and the provisions of the Act, I am of the considered opinion that, Exhibit P-9 order is erroneous and unsustainable in law and is liable to be interfered with because when the petitioners have raised a specific plea that the suit is hit by the prohibitions under Sections 4 and 45 of the Act, the Trial Court ought to have considered the said question as a preliminary issue, as laid down in T.M.Bagasarwalla v. H.R.Industries, before making an endeavor to decide on Exhibit P-5 application, otherwise as it is commonly said in the idiom it would be like putting the cart before the horse. I say this because, if ultimately the Court finds that it lacks jurisdiction then Exhibit P-9 order would become non- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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