RSA No.4625 of 2009 (O & M) ::1:: IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.4625 of 2009 (O & M) Date of decision: 25.01.2011 Haryana Financial Corporation .. Appellant Versus Smt.Manju Jain and others .. Respondents CORAM: HON'BLE MRS. JUSTICE SABINA. Present:- Mr.Puneet Kumar Gupta, Advocate, for the appellant. Mr.Suman Jain, Advocate, for respondents No.1, 3 and 4. Mr.Sonia Jain, Advocate, for respondent No.2. * * * * SABINA, J. Plaintiffs had filed a suit for declaration that they were owners-in-possession of the suit property. It was further prayed that the defendant-Corporation be restrained from dealing with the property in dispute to effect recovery of loan amount. The case of the plaintiffs in brief was that they had purchased the suit property from Jati Ram and Naresh Kumar Jain vide sale deed dated 25.01.1990. The plaintiffs were put in possession of the land purchased by them. Later on, the plaintiffs came to know that M/s Shree Krishan Cement Milakpur had taken financial assistance from the Corporation to the tune of Rs.9 lacs. The original sale documents had never been deposited with the Corporation and were still available with the legal heirs of Jati Ram. Hence, the suit for declaration filed. RSA No.4625 of 2009 (O & M) ::2:: Defendant-Corporation in its written statement averred that M/s Shree Krishan Cement had taken working capital loan of Rs.9 lacs on 25.11.1994 and to secure its repayment, Jati Ram and Naresh Kumar had created equitable mortgage of their land in favour of the Corporation. Since the amount had not been repaid by the Firm, the same was liable to be recovered from the property owned by Jati Ram and Naresh Kumar Jain. The original title deed and mortgage deed were not traceable. On the pleadings of the parties, following issues were framed by the trial Court. “(i) Whether the alleged mortgage deed dated 25.11.1994 regarding land measuring 16 Kanal 0 Marla as detailed in the plaint in favour of defendant corporation is forged and fabricated document, based upon fraud and misrepresentation and is liable to be set aside ? OPP (ii) Whether plaintiffs No.1 to 3 are owners in possession of plots as detailed in the plaint? OPP (iii) Whether the plaintiffs are entitled to get the decree of permanent injunction by restraining the defendant from auctioning these plots for recovery of dues of borrower and from confirming the auction of this land or from taking any further action in respect of these plots? OPP (iv) Whether the plaintiff has no cause of action and locus standi to file the present suit ? OPD (v) Whether the plaintiffs are estoped by their own act and conduct to file the present suit ? OPD RSA No.4625 of 2009 (O & M) ::3:: (vi) Whether the suit is barred by limitation ? OPD (vii) Relief.” The trial Court vide judgment and decree dated 20.02.2007 partly decreed the suit of the plaintiff. Defendant was restrained from auctioning any portion of the suit property in order to recover loan amount as the suit land had never been mortgaged by its true owners. Further, it was ordered that since heavy amount of loan had been misappropriated by the owners of M/s Shree Krishan Cement Milakpur and the officials of Haryana Financial Corporation were liable to be proceeded by way of civil as well as criminal proceedings. It was ordered that regular investigation was required to be taken up after lodging of First Information Report against the guilty persons and the Deputy Commissioner was directed to initiate proceedings within 15 days of receipt of copy of the judgment. Aggrieved by the said judgment and decree, the Haryana Financial Corporation as well as the plaintiffs preferred appeals vide judgment and decree dated 21.05.2009. The District Judge, Hissar, dismissed both the appeal. Hence, the present appeal filed by the defendant. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Admittedly, defendant-Corporation had failed to prove the mortgage deed in pursuance thereof they were carrying out auction proceedings of the land in question. Since the suit land had not been established to have been mortgaged with the Corporation, the Courts below rightly restrained the Corporation from auctioning the suit land. Plaintiffs had purchased the suit property prior to the date of alleged mortgage executed by the owners in favour of the Corporation. RSA No.4625 of 2009 (O & M) ::4:: RSA No.4625 of 2009 (O & M) ::5:: No substantial question of law arises in this case. Accordingly, this appeal is dismissed. January 25, 2011 (SABINA) sukhpreet JUDGE