IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9724 of 2010 SHRI RAM GUPTA, son of Dargahi Ram, resident of Mohalla Chaukhandi, P.S.Sasaram, District Rohtas---------petitioner Versus 1.THE CANARA BANK having its head office at 112, J.C.Road Bangalore through its Chairman and Managing Director 2.The Chairman and Managing Director, Canara Bank, Head Office at 112, J.C.Road Bangalore (Karnataka) 3.The General Manager, Canara Bank, Circle Office, Lav Kush Tower, Patna 4.The Authorised officer, Canara Bank, Circle Office, Lav Kush Tower, Patna 5.The Branch Manager, Canara Bank, Branch office, Sasaram (Rohtas)-------------------------------------respondents ----------- For the petitioner:M/S D.K.Sinha, Sr.Advocate Bajarangi Lal, Advocate For the respondent Bank:Mr.Ratnesh Nandan Sinha, Advocate --- 2. 29.6.2010 The petitioner has come to this Court for quashing the sale notice published in daily Hindustan dated 31.5.2010 by which the property of the petitioner mentioned at serial No.2 of Sasaram Branch therein has been put on auction, the last date for filing of the tenders of which has been fixed as 29.6.2010 and the date for opening of the tenders has been fixed as 30.6.2010. The property in question appertains to Municipal Khata No.199, Municipal plot No.467, old M.S.Plot No.1120 under revenue Thana No.126, ward No.16(new), 10(old) situated at Mohalla Chaukhandi Road, Town & P.S. Sasaram, District Rohtas having an area 54’x13.5’ in length and width of land which 2 is claimed to be a dwelling house in which he resides and except that the petitioner has no other house for his residence. The petitioner further claims that the said property is a joint family property of the petitioner and his brothers as well as his father and mother. Earlier the respondent Bank had given a cash credit loan of Rs.3,00,000/- vide Loan Account No.ODCC No. 5086 which was sanctioned and disbursed in the name of Ajit Kumar, son of Dargahi Ram, as the proprietor of M/s.Sri Ram Tilkut Dukan in the year 2003. Later the said limit was enhanced to Rs.5,00,000/- on 6.3.2004. It is the case of the Bank that the father and mother of Ajit Kumar, namely, Dargahi Ram and Janaki Devi stood as guarantor and also created equitable mortgage in favour of the Bank over their immovable house hold property. According to the Bank the said property was purchased by them in the year 1969. The said loan account was ultimately classified as N.P.A. in accordance with banking norms and proceedings were initiated under SARFAESI Act, 2002 by issuing notice 3 under Section 13(2) of the Act and demand notice for payment of entire amount of Rs.5,41,952/- inclusive of interest till 30.9.2007 was given and subsequently other steps were also taken and lastly the sale notice has been published. The stand of the petitioner is that the said property is joint family property and he was unaware of the equitable mortgage created by his father and mother with respect to the same. It is also submitted that son of one of the brothers of the petitioner, namely, Ravi Kant Gupta has filed a title partition suit bearing T.S.No. 225/07 in the court of Sub- Judge I, Rohtas at Sasaram on 22.5.2007 stating that the property in question is his joint family property and claiming 1/6th share in the same along with his father and other members of his father’s branch. The petitioner has also stated that since the plaintiff is not pursuing the suit in proper manner he filed a petition under Order 1 Rule 10 CPC on 25.5.2010 before the court of Sub- Judge for transposing him as plaintiff which application is still pending. 4 In view of the aforesaid facts, learned counsel for the petitioner submits that the interest of the petitioner ought to be protected by this Court as the civil Court has no jurisdiction to issue any injunction against the Bank in view of Section 34 of the SARFAESI Act, 2002. In support of the said stand learned counsel for the petitioner relies upon a decision of a learned Single Judge of this Court in the case of Gopal Prasad Dokania vs. The Punjab National Bank and others : 2010(2) PLJR 422 in which in similar situation this Court has held and directed as follows : “4. Having considered the matter, in my view, it cannot be said straightway that petitioner has no right in the property. If he has some right and this being a residential house of the joint family and he not being either the beneficiary of the loan or surety or guarantor then his right in the property cannot be sacrificed. Thus, I find that there is a prima facie case in favour of the petitioner as also balance of convenience and that being so I direct the trial court to take expeditious step to secure presence of all the parties. Petitioner and the Bank would cooperate. For a period of six months from today Bank would not proceed with any action in terms of Section 13 of the SRFAESI Act, in which time the trial should commence, all parties having appeared and exchange pleadings, 5 issues framed. In case of any of the private parties to the suit not appearing or not cooperating then the Bank would be free to proceed again under SRFAESI Act in respect of the entire property without any objection from the petitioner. If the trial so commences within six months then all parties to the said suit would cooperate to see that the trial is concluded within next six months and if not so concluded and the delay is not attributable to the Bank then again the Bank would be at liberty to proceed under Section 13 of the SRFAESI Act without there being any objection from any quarter. It is the best interest of the parties to seek cooperation from all the parties to the suit and for the trial court to see that expeditious steps are taken in the matter.” Learned counsel for the respondent Bank opposes the claim of the petitioner but he is unable to show to this Court how the case of the present petitioner differs from that in the Gopal Prasad Dokania’s case(supra). This Court, however, finds that in the aforesaid case the Bank had been made a party to the partition suit whereas in the present matter the partition suit itself has been filed before the proceeding under the SARFAESI Act and thus the Bank has not been made a party. The writ application is, accordingly, disposed of in terms of the directions 6 contained in Gopal Prasad Dokania’s case(supra). Since the Bank is not a party to the title partition suit it is directed that the Bank may file an application under Order 1 Rule 10 CPC before the learned Sub-Judge to be impleaded as party defendant in the said suit and the learned trial court shall permit the impleadment of the Bank so that the matter can be considered and disposed of in the light of the directions of this Court. (Ramesh Kumar Datta,J.) Spal/