SCA/508/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 508 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL VIJAYKUMAR SHIVABHAI - Petitioner(s) Versus SHREE KADI NAGARIK SAHAKARI BANK LIMITED & 1 - Respondent(s) ========================================================= Appearance : MR DHAVAL M PATEL for Petitioner(s) : 1, MR DIPAK R DAVE for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/09/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original plaintiff has prayed for appropriate writ, order and/or directions SCA/508/2008 2/11 JUDGMENT quashing and setting aside the order impugned order dtd.7/1/2008 passed by the learned Principal District Judge, Mehsana in Civil Misc.Appeal No.56 of 2007, by which the learned appellate court has allowed the said appeal quashing and setting aside the order dtd.21/3/2007 passed by the learned Principal Senior Civil Judge, Mehsana below application Ex.5 in Special Civil Suit No. 45 of 2006. 2. The petitioner – original plaintiff has instituted Special Civil Suit No. 45 of 2006 in the court of learned Civil Jude (S.D.), Mehsana for a declaration and permanent injunction declaring that the petitioner has purchased Bungalow No.20, Sapana Co-operative Housing Society Limited and has become absolute owner and the defendants had no authority to attach the said property holding of Shree Sidhdheshvari Rice Mill. It was further prayed for a permanent injunction restraining the defendants from interfering with the possession of the plaintiff of the suit property. It is also further prayed for a declaration that the notice dtd.16/9/2006 issued by the defendants for attachment of the aforesaid Bungalow No.20, served upon Patel Bachubhai Bababhai for the SCA/508/2008 3/11 JUDGMENT recovery of dues of Shree Sidhdheshvari Rice Mill be declared as illegal, unauthorised and null and void. In the said suit, the petitioner submitted an application for interim injunction at Ex.5 restraining the defendants, more particularly respondent No.1 Bank, from interfering with the possession of the plaintiff and restraining the defendants from entering into the suit property and/or restraining the defendants from attaching the suit property pursuant to the notice dtd.16/9/2006. It was the contention on behalf of the petitioner that he has purchased the suit property by taking proper care and caution and he is the bona fide purchaser and therefore, the respondent No.1 bank had no authority to attach the said property which is in possession of an owner. 3. The said application Ex.5 was opposed by the respondent No.1 submitting that Bachubhai Babaldas Patel was the partner of Shree Sidhdheshvari Rice Mill and the said Rice Mill had obtained loan from defendant No.1 – Bank and the defendant No.1 Bank has obtained a decree against the said Shree Sidhdheshvari Rice Mill through their partners for the recovery of Rs.13,74,946 with interest and when the said property was initially in the name of SCA/508/2008 4/11 JUDGMENT Bachubhai, it was transferred in favour of his wife Smt.Vidhyaben without any consideration and with a view to defeat the decree and rights of the Bank to recover the legitimate dues and therefore, the defendant No.1 Bank is entitled to recover decretal amount from the suit property. That the learned Principal Senior Civil Judge, Mehsana by his judgement and order dtd.21/3/2007 allowed the application Ex.5 and granted injunction in favour of the plaintiff and against the defendant No.1. Being aggrieved by and dissatisfied with the order dtd.21/3/2007 passed by the learned Principal Senior Civic Judge , Mehsana below application Ex.5 in Special Civil Suit No.45 of 2006, the respondents herein preferred Civil Misc.Appeal No.56 of 2007 before the learned Principal District Judge, Mehsana and the learned Principal District Judge by the impugned order dtd.7/1/2008 allowed the said appeal quashing and setting aside the order passed by the trial court below application Ex.5. Being aggrieved by and dissatisfied with the impugned order dtd.7/1/2008 passed by the learned Principal District Judge, Mehsana in Civil Misc.Appeal No.56 of 2007, the petitioner – original plaintiff has preferred present Special Civil Application under Article SCA/508/2008 5/11 JUDGMENT 227 of the Constitution of India. 4. Mr.Prakash K. Jani, learned advocate appearing on behalf of the petitioner – original plaintiff has submitted that the learned appellate court has materially erred in quashing and setting aside the order passed by the trial court below application Ex.5. It is submitted that the suit property has been purchased by the petitioner against valuable consideration from one Vidhyaben Bachubhai and he is bona fide purchaser and is in possession of the suit property and therefore, the respondent Bank had no authority to attach the suit property for the recovery of dues of Shree Sidhdheshvari Rice Mill. It is submitted that the said bungalow was placed with the bank as security/mortgage towards the dues of the said Shree Sidhdheshvari Rice Mill. It is submitted that, therefore, the learned trial court has rightly allowed the application ex.5 restraining the respondents herein – original defendants from attaching the suit property of the dues of Shree Sidhdheshvari Rice Mill and interfering with the possession of the petitioner. Submitting accordingly it is requested to allow the present Special Civil Application. SCA/508/2008 6/11 JUDGMENT 5. Present petition is opposed by Mr.Dipak Dave, learned advocate appearing on behalf of the respondents. It is submitted that the petitioner has not approached the Court with clean hands and has suppressed material facts from this Court. It is submitted that the petitioner is real brother of Vidhyaben wife of Bachubhai and Bachubhai is partner of Shree Sidhdheshvari Rice Mill, against whom decree has been passed. It is also further submitted that as such the said Bachubhai and Vidhyaben were in possession of the suit bungalow and only after the suit is filed, to make a show, the petitioner is shown to be in possession of the suit bungalow. It is further submitted that even the petitioner has failed to even prima show that he is a bona fide purchaser, as he has failed to prove the consideration. It is further submitted that with a view to defeat the claim and decree which is in favour of the bank, the suit property, which was originally in the name of Bachubhai – partner of Shree Sidhdheshvari Rice Mill, came to be transferred in favour of his wife Vidhyaben and subsequently, the same is further transferred by Vidhyaben in favour of the petitioner and considering the above, the learned appellate court has rightly allowed the appeal by quashing and setting aside the order SCA/508/2008 7/11 JUDGMENT passed by the trial court below application Ex.5, which is not required to be interfered with by this Court in exercise of the powers under Article 227 of the Constitution of India. Submitting accordingly, it is requested to dismiss the present Special Civil Application with costs. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. Having heard the learned advocates appearing on behalf of the respective parties and considering the material on record, it appears that Shree Sidhdheshvari Rice Mill had obtained loan from the respondent No.1 and as the loan was not repaid, a Lavad Suit came to be filed by the respondent No.1 Bank against Shree Sidhdheshvari Rice Mill and its partners for the recovery of due amount on 22/11/2000. The said suit bungalow in question was in the name of Patel Bachubhai Babaldas who was partner of the said Shree Sidhdheshvari Rice Mill and decree came to be passed by the competent court against the said Shree Sidhdheshvari Rice Mill and its partners for recovery of Rs.13,74,946 with interest. It appears that the SCA/508/2008 8/11 JUDGMENT said Bachubhai Babaldas transferred the said bungalow in favour of his wife namely Smt.Vidhyaben Bachubhai Patel without any document and without consideration, only by submitting an application with the society to transfer the bungalow in the name of his wife and accordingly the said bungalow came to be transferred in the name of Vidhyaben wife of Bachubhai Babaldas Patel, who is partner of said Shree Sidhdheshvari Rice Mill. Now after the decree came to be passed, the said bungalow further came to be transferred in favour of the petitioner and the petitioner claims to be bona fide purchaser by registered deed on payment of sale consideration of Rs.1,50,000. It is required to be noted that the petitioner is the real brother of Vidhyaben wife of Bachubhai and Bachubhai Babaldas Patel is the partner of the said Shree Sidhdheshvari Rice Mill. However, the petitioner never disclosed earlier that he is brother of Vidhyaben and all through out he has submitted that he is bona fide purchaser. It appears that the petitioner has not approached the Court with clean hand. Even considering the sale deed in favour of the plaintiff, it appears that the sale consideration is alleged to have been paid by cash, but the petitioner plaintiff has failed to even prima facie SCA/508/2008 9/11 JUDGMENT satisfy the court about the source of the said amount from where he has brought and paid the said amount. Thus, prima facie it appears that the transaction between the said Vidhyaben and the plaintiff is sham and bogus and has been entered into only with a view to defeat the legitimate right of the respondent No.1 Bank to recover the amount pursuant to the decree in favour of the respondent Bank. Thus, the petitioner cannot be said to be bona fide purchaser of the suit bungalow. It is also further required to be noted that the sale deed in favour of the petitioner is of dtd.28/6/2002 and the sale consideration of Rs.1,50,000 alleged to have been paid on 31/3/2002 i.e. much prior to the execution of the sale deed. Even the sale deed is actually executed on 17/7/2002. At this stage it is required to be noted that as such the respondent No.1 Bank had issued notice dtd.1/7/2002 upon the said Vidhyaben asking her not to transfer the bungalow in question, still the said Vidhyaben had transferred the property in favour of the petitioner by executing sale deed on 17/7/2002. The sale deed in favour of the petitioner -plaintiff is of dtd.28/6/2002 and the amount of sale consideration of Rs.1,50,000 is alleged to have bee paid by cash on SCA/508/2008 10/11 JUDGMENT 31/3/2002 and, in fact, the sale deed has been executed on 17/7/2002 by Vidhyaben after the notice was issued by the respondent Bank on 1/7/2002. The aforesaid facts and circumstances prima facie suggest that the transfer of the suit bungalow in favour of Vidhyaben and thereafter further transfer in favour of the petitioner are not bona fide and the the property is transferred only with a view to defeat the respondent Bank to defeat the respondent No.1 Bank from recovering their legitimate dues pursuant to the decree in favour of the respondent Bank. The petitioner plaintiff has not approached the Court with clean hands and has suppressed material facts from this Court and therefore, the petitioner is not entitled to discretionary relief under Order 39 Rule 1 and 2 of the Code of Civil Procedure. In the above facts and circumstances of the case and considering the above, when the learned appellate court has allowed the appeal by quashing and setting aside the order passed by the trial court below application Ex.5 it cannot be said that the learned appellate court has committed an error in exercising the jurisdiction vested in it. Even considering the aforesaid facts and circumstances, this Court is also of the opinion that the petitioner plaintiff cannot be said SCA/508/2008 11/11 JUDGMENT to be bona fide purchaser, and therefore, he is not entitled to the discretionary relief of injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure. The impugned order passed by the appellate court is just, legal and proper and does not call for any interference of this Court in exercise of powers under Article 227 of the Constitution of India. 8. For the reasons stated above, there is no substance in the present Special Civil Application and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. Ad-interim relief granted earlier stands vacated forthwith. [M.R. SHAH, J.] rafik