9911796707
TMI Blog2025 (3) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that written instruments being an agreement dated January 14, 2021, memorandum of entry dated February 15, 2021 and other documents relating to loan and/or credit facilities as referred to in the letter dated September 3, 2024 are void and be delivered up and cancel, and for perpetual injunction protecting the possession for the plaintiff in respect of the said property as well as restraining the defendant no.1 from alienating and/or creating any third party interest in respect of 50% ownership right for the plaintiff in the said property. 2. Learned counsel for the petitioner argues that the impugned order is devoid of reasons. 3. It is submitted that although in its letter dated September 3, 2024, the defendant no.1-Bank claims that the plaintiff/appellant and his brother, Hari Ram Goenka (since deceased), proprietor of Shree Bajrang Bhandar, jointly applied for loan/credit facility, the loan agreement does not contain any signature of the plaintiff. It is further argued that the memorandum of entry dated February 15, 2021 also contains no signature of either the appellant or the said Hari Ram. Furthermore, a magisterial declaration has been alleged to be executed by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Civil Procedure, a pleading may be signed and verified on behalf of a corporation only by its Secretary, Director or other Principal Officer. Hence, the said signatory is incompetent to affirm the affidavit-in- opposition and as such, the averments made in the opposition ought to be ignored by this Court. 9. Learned counsel for the respondent no.1-Bank submits that there are several documents on record, including a letter of continuing guarantee dated January 14, 2021, a net-worth certificate issued by the appellant, agreeing to stand as guarantor for the loan, a letter of deposit of title deeds relating to the subject property and a declaration- cum-indemnity signed by the appellant in the capacity of guarantor which establish that the appellant stood as a guarantor in the loan taken by Hari Ram (since deceased) and offered his share of the suit property as security for the loan. Hence, the appellant is also subject to the jurisdiction of the DRT under Section 17 of the SARFAESI Act. Thus, no injunction can be granted by the Civil Court to restrain the respondent no.1-Bank from taking measures under Section 13(4) of the SARFAESI Act. 10. It is next contended that the remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. Whereas in the letter dated September 3, 2024, the Bank alleges that the appellant jointly applied for financial assistance with his brother Hari Ram Goenka, since deceased, the stand taken by the respondent no. 1-Bank before this Court during arguments and in its affidavit-in- opposition is otherwise, to the effect that the appellant was a guarantor of the loan. Even the loan agreement does not contain any signature of the appellant. A memorandum of entry dated February 15, 2021 annexed to the affidavit-in-opposition by the Bank in support of its case does not bear the signature either of the appellant or of the said Hari Ram. Moreover, it transpires from the purported declaration/letter issued by Hari Ram along with the appellant, which is produced by the Bank, that the Bank had obtained a magisterial declaration from the owners, including the appellant. However, such declaration has not been produced by the respondent no. 1-Bank, thereby constraining the court to draw adverse inference against the Bank on such count. That apart, the appellant has alleged in his pleadings that the documents produced by the Bank are forged and manufactured insofar as any continuing guaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the date of passing of the impugned order. 21. Thus, the remedy of the appellant under Section 17 of the SARFAESI Act is not only illusory but also non-existent. 22. Another aspect of the matter cannot also be overlooked. The respondent no.1-Bank argues that the appellant, who comes within the broad definition of "borrower", being a guarantor, could have made a representation or raised objection under Section 13(3-A) of the SARFAESI Act. However, the said representation would only culminate in a consideration and decision being taken by the secured creditor itself and if the secured creditor/Bank does not accept the same, it merely has to communicate the same and follow up by taking measures under sub-section (4) of Section 13. Hence, such remedy in the present case is ineffective. 23. It has to be kept in mind that the principal reliefs claimed in the suit are beyond the competence or the jurisdiction of the DRT to grant. For example, the plaintiff/appellant has sought declaration of his 50% title in the suit property, which cannot be granted by the Tribunal. 24. Also, the very basis of the claim of loan and equitable mortgage of the Bank has been challenged, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first part of Section 34 and emanates from the Tribunal having jurisdiction to entertain the reliefs claimed in the suit for the bar to operate. Although Section 34 also prevents a Civil Court from granting any injunction in respect of any action not only taken but "to be taken" in pursuance of any power conferred by the said Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, "the 1993 Act"), as discussed above, none of the provisions of the SARFAESI Act or the 1993 Act empowers the Tribunal to go beyond the limited consideration of whether the measures under Section 13(4) have been taken by the secured creditor/Bank in accordance with the Act and the Rules prescribed thereunder. 29. The reliefs claimed by the plaintiff in the present suit goes much beyond the same and the Tribunal does not have power to decide those or grant the reliefs claimed in the suit. Accordingly, the bar under Section 34 is not attracted to the present case at all. 30. Considered from a different perspective, the injunction sought by the plaintiff/appellant is in aid of the principal final reliefs sought in the suit, independent of the provisions of the SARF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -opposition of the injunction application is concerned, the appellant has also made out a strong case on such aspect, since the expression "corporation" under Order XXIX of the Code of Civil Procedure has to be deemed to be a body corporate, incorporated under any law in India. Seen from such perspective, the respondent no.1-Bank is a company which is incorporated under the governing law and as such, is a body corporate, coming within the purview of the expression "corporation" used in Order XXIX of the Code. Rule 1 of Order XXIX clearly stipulates that in a suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other Principal Officer of the corporation who is able to depose on the facts of the case. As per the averment in the affidavit- in-opposition, the signatory thereto merely claims herself to be a "constituted attorney" of the Bank and not a Secretary/Director/Principal Officer thereof. Hence, the necessary ingredients of Order XXIX Rule 1 are not satisfied. There is no reason as to why the principle incorporated in Order XXIX, although applicable in terms to a suit, should not also be bor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
