Important judgment on different topics

 Important judgment on different topics.
 Adverse Possession:

"Long possession is not necessarily adverse possession and the prayer clause is not a subsitute for a plea."S.M.Karian v. Bilisahina A.I.R.1964 SC1254.

Proving of  Adverse Possession:

                 
"for the purpose of proving adverse possession/ouster,the defendant must also prove animus possidendi". Mohemmed Ali (dead) by L.R.S. v. Jagdish Kalita and others.(2004)1. SCC 271, 2004 (1) SCCD 242.

Starting Point of Limitation:

In terms of article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the  defendant's possession become adverse. Saroop Sing v. Banto (2005)8 SCC 330.,2005 (3) SCCD 1643.

Essential of Adverse Possession:
"A person who claims adverse possession should show:
(a)On what date he came into possession,
(b)What was the nature of his possession,
(c)Whether the factum of possession was known to the other party,
(d)How long his possession has continued,and 
(e)his possession was open and undisturbed.
Karnataka Board of wakf v. Govt. of India. (2004) 10 SCC 779: 2004 (3) SCCD 1390.

Long Possession:

“that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expresslyor impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continutity, in publicity and in extent so as to show that it is adverse to the true owner.The possession must be open and hostile enough so that it is known by the parties Interested in the property. The plaintiff is bound to prove his title as also possession Within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession.

 2011 (1) UAD 378, Chatti Konati Rao & ors verses  Palle Venkata Subba Rao.

Equities in Adverse Possession

A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence,it is for him to clearly plead and establish all facts necessary to establish adverse possession.

2011(1)UAD 378,Chatti Konati Rao& ors v Palle Venkata Subba Rao.

Civil Procedure Code - 1908

Amendment

Or. 6. R. 17

Purpose of Amendment – Powers of Court.

Power of courts not only discretionary, but is also wide and could be exercised at any stage of the proceedings in the interest of justice – court should adopt a liberal approach and allow a party to take all kind of stand ,which the party may choose and court  should not adopt a hyper technical approach and should allow the amendment – when the other side could be compensated with costs.

2011 (1 ) U.A.D. HC 172

Civil Procedure Code 1908.---ORDER 23 RULE 1. Maintainability  CIVIL PROCEDURE CODE 1908.---ORDER 23 RULE 1. 

Maintainability of second suit.
 order 23 rule 1.~ permission to withdraw a suit with liberty to institute a fresh suit after the
first one has been withdrawn.Order 23 rule 1. can not be read so as to bar a suit which has already
been instituted before the other suit has been abandoned or dismissed.
The rule is clear and can only be applied to suit instituted after the withdrawal or abandonment of previous
suit.
P.A.Muhammed vs Canara bank and another.
A.I.R. 1992 Kar 85,  Vimlesh kumari kulshrestha  vs Sambhajirao and another. civil appeal No.2976 of 2oo4,
 on February 5, 2008, 2008 (1) SCCD 313  ( SC ).

consent decree order 23, rule 3

requirements---A consent decree is merely a agreement between the parties with the seal of the court
super added to it.
compromise is to be held to be binding it must be signed either by the parties or by their counsel or by
both,failing which order 23 , rule3 would not be applicable.
A compromise is not binding on such defendants who are not parties thereto.

 Sneh gupta vs Devi sarup & other civil appeal No.1085 of 2009 decided on 17- 02 -2009. ( uttarakhand high court)
 2009 (1) UAD 541

Consumer forum (" Exparte" order ) 

Rajeev Hitendra Pathak & Ors  v.  Achyut Kashinath Karekar & Anr., (2011) 9 SCC 541, Honorable Supreme Court held “ that neither the District Forum nor the State Commission had power to review its ‘’ex parte”  orders. Orders of the aforesaid nature were, ‘’ per se” assailable only before the National Commission .

DOG BITES---INSURANCE.

 Death due to rabies held, death would be accidental. Life insurance Corporation
 to pay additional amount.
 Lallubhai panchal vs Life Insurance Corporation of India.
 A.I.R. 1999 Gujarat 280.

 EASEMENTS ACT ( 5 OF 1882 )

 Right of privacy ---Section 15.--- Easement neither pleaded nor proved.
 If one party opens windows it is equally open to another party to block
 them by raising walls.
 Anguri versus Jiwan dass.
 AIR 1988 SC 2024: ( 1988 ) 2 A.P.L.J. (SC) 70: (1988 ) 4 SCC 189:

EVIDENCE ACT,1872; 

SECTION---90, Presumption under section 90 of the Evidence Act 1872 in respect of  30 year's old document coming from proper custody relates to the

signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statment 

contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact.

Union of India versus Ibrahim Uddin & Anr. 2012 (2) U.A.D. 566 (SC).

 FAMILY SETTLEMENT/ ARRANGEMENT: 

 Unregistered family arrangement---Evidential value.
 Registration of a family arrangement would be necessary only if the terms of the family
 arrangement are reduced into writing. An unregistered family arrangement could not be used
 even to prove that there was a partition .Evidence on the basis of such document could not
 be led as it was barred by section 91 of the evidence act.
 Bankey bihari vs Surya narain alias Munnoo
 A.I.R. 1999 Allahabad.

FAMILY SETTLEMENT/ ARRANGEMENT-- Object of -- Essential and its binding effect.

Kale and others vs Deputy director of consolidation and others.

A.I.R. 1976 SC 807.

Joint Hindu Family Property---undivided share of coparcener----can be subject matter of sale / transfer -- but possession cannot be handed over to vendee , unless property partitioned by metes and bound eighter by decree of court in partition suit or by settlment among co-sharers.

Relied on Ram Dass v. Sita Bi  JT 2009 (8)SC 224. Gajra Vishnu Gosavi  v. Prakash Nana Saheb Kanbb  2010 (2)SCCD 1105 (SC) Civil Appeal No. 1292 of 2002 with C.A. No. 1293 of 2002. Decided on September 16. 2009

Joint Tenant - If a proceeding is drawn one of the joint tenants, it is presumed that the interest of other joint tenants is represented by the contesting joint tenant.

Smt Mridula chaube and Anr vs.  Smt Sushila Mittal and Anr. 2010(1) UAD 567.

Joint Tenant – After the death of original tenant, tenancy rights devolve on the heirs jointly and any action of joint tenant binds other joint tenants if not impleaded.

Smt Puja Gupta  vs. Pushkar Kumar and another. 2008(72) ALR, 762 Allahabad High Court.

INDIAN SUCCESSION ACT,1925, secs. 15 &16

Bonafied Resident---By marriage, a woman acquire the domicile of her husband, and a wife's domicile during her marriage
follow the domicile of her husband.

Jyoti Bala versus State of uttarakhand & Anr
writ petition No. 297 of 2008( S/B )
Decided on 16-12-2008 ( uttarakhand high court )
2009 (1) UAD 501
 
 LEGAL REPRESENTATIVE SUIT.

 Liability of legal representative for the debt of the deceased is limited to the extend
of assets of deceased in hands.
 1983 SC188, 2002 (2) Civ.C.R 269 (Mad) Gonindamal vs Bhuvneshwar Financing Corporation
                     Decided on 19-10-2001.

 LIMITATION:

 Where no limitation prescribed---It has to  ascertained from residuary provision of article
 137 of Limitation Act,1963.
 Naveen kumar and etc vs Karnataka Theatres Ltd and others.
 A.I.R. 1999 Orissa 113.
 

LANDLORD AND TENANT

Title of--held, that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be,

so long as he has not openly surrendered possession by surrender to his landlord.

D. Satyanarayana vs P.Jagdish 1987 (4) SCC 424, confirmed in State of A. P.& Others versus D. Raghukul Pershad (D) by LRS.& Ors.

2012 (2) UAD 558 (SC)

U.P.  Act , 13, 1972, Sec. 20 (4) – Benefit  of--

Khadi Gram Udyog Trust vs. Sri Ram Chanderji  Virajman Mandir, reported in A.I.R. 1978 (4) S.C. 37

Wherein  it has been held that the tenant can take advantage of the benefit conferred by Sec 20(4) only when he pays the entire amount of rent due as required under Sec  20(4). It has further been held  that expression ‘entire amount of rent due’ would include rent which has become time barred.

In the case of Subhash Chand Jain vs.First Addl. District Judge, A.I.R. 1989 (15) S.C. 300 Wherein it has been held that as the time barred arrear had been deposited by the appellant on October 1, 1977 only, the High Court took the view that entire arrears of rent rent had not been deposited on or before the date of first hearing inasmuch as the entire amount due as arrears of rent had not been deposited within time, the High Court was right in dismissing the writ petition .

Followed by Uttarakhand High Court in Smt. Mahaviri & Ors vs. Ghanshyam 2013 (2) UAD 852.

 MOTOR ACCIDENT CLAIM TRIBUNAL:
 
 Insurer not liable to pay compensation on death of pillion rider of two wheeler.
 Oriental insurance co. limited. versus Sudhakaran k.v and others.
 2008 ( 3 ) SCCD 1233 ( SC)

  NEGOTIABLE INSTRUMENT ACT.
 
  Premature complaint--maintainability.
  complaint filed for dishonor of cheque with in 15 days of service of notice, held
  premature and not maintainable.
  criminal appeal No 1424 of 2007. Decided on Oct 11 2007.
  Sarav investment and financial consultant pvt ltd and another
  versus llyods register of shipping Indian office staff provident fund and another.
  2008 (1) SCCD 216 (S C ). 
 
 RECORDS OF RIGHT

 Entries in the record of rights
 It is well settled that the entries in the record of rights only raise presumption that the person whose name is entered
 in the records of right is in possession of the suit lands but the same can be rebutted by addiction of evidence,
 documentary or oral on record.
 Mahant Ram khilawan dass versus state of M.P.
 Decided on March 10.2008
 2008 (1) SCCD 471 (S C).

 REQUIREMENT OF SERVICE OF A NOTICE:
 
 c.c.Alavi Haji versus Pala petty Muhammedand others.
  JT 2007( 7 ) SC 498
  2007 ( 2 ) CCSC

SPECIFIC RELIEF ACT 1963

cancellation of sale deed
under section 31- necessary party- oral evidence contrary to the document- allegation of fraud

It is settled law that when in respect of a transation, a written document is executed, any kind of oral evidence, contrary to the document, is not admissible. The allegation of fraud if made by a party, must specify giving role of each person and all those involved in the fraud must be made a party. Bare allegation that plaintiff had not received the full consideration or that the plaintiff signed the documents without reading the contents there of, is not a ground for cancellation of the sale deed. If the plaintiff chooses not to read the documents, he does so at its own peril.

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment  May 05, 2008.
CS ( OS ) No. 714/ 2008
Jai Bhagwan verses Rajesh and Ors.( see attachment 1. )


Registration of Unilaterally Executed Deed of Cancellation:

The Registration Act, 1908

Section 17 of the Registration Act, 1908

Section 31 of the Registration Act, 1908

The Transfer of Property Act, 1882

The Specific Relief Act, 1963

(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration. (ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor. (iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a sale deed, admittedly, the title remained with the transferor. (iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any other valid reasons. 

M/S.Latif Estate Line India Ltd vs Mrs. Hadeeja Ammal on 11 February, 2011

W.A. NOS. 592 & 938 OF 2009

W.A. NO. 592 OF 2009

 SPECIFC PERFORMANCE OF CONTRACT
 (SPECIFIC RELIEF ACT. 1963 --Section 19 and 20.)

 It is a settled law that an endeavor should be made by the court to give effect to the
 terms of the agreement .
 It is also a settle law that an agreement is to be read as a whole so as to enable the
 court to ascertain the true intention of the parties.
Uncertain agreement for sale can not be given effect.
Civil appeal No.2976  of 2004
 Decided on February 5, 2008.
 Vimlesh Kumari Kulshrestha vs Sambhajirao and anoher.
 2008 (1) SCCD 313 (SC)

Unregistered Agreement to Sell 

Unregistered agreement to sell -- whether legally enforceable -- whether direction can be given to registered the said agreement without availing the remedy provided under the registeration Act.

Vijay Kumar Sharma vs Devesh Behari Saxena on 16 November, 2007

Equivalent citations: AIR 2008 All 66, 2008 (1) AWC 664

Held--because the plaintiff did not avail the remedy provided under Registration Act for getting a document registered. The agreement dated 22.01.1993 is unregistered document. The learned court below has passed a decree for mandatory injunction directing the defendant to get the said agreement registered before the registering authority within one month and then to execute the sale deed in favour of the plaintiff in terms of that agreement. In our view, such direction could not be issued in the present suit. Section 23 of the Registration Act lays down that "no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution". Section 25 provides that If, owing to urgent necessity or unavoidable accident, any document executed, is not presented for registration till after the expiration of the time prescribed under sections 23 and 24, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration. Section 71 lays down that every Sub-Registrar who refuses to register a document shall make an order of refusal and record his reasons. Section 72 provides an appeal to the Registrar against the order of Sub-Registrar, where refusal is made on the ground of denial of execution. Section 77 provides that where the Registrar refuses to order the document to be registered, under section 72 or a decree under section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in a Civil Court, a suit for a decree directing the document to be registered. These provisions show that a suit for a decree directing for registration of the document can be instituted after recourse has been taken to the provisions of sections 71 and 72 of the Act.

The Full Bench consisting of 5 Hon'ble Judges has held in the case of Bhagwan SINGH and Anr versus Khuda Baksh and Anr 1881 (III) ILR 397 that suit for claiming a decree directing the registration of document without having recourse to the provisions of section 73 of Registration Act is not maintainable. It is specifically held by the Full Bench that moving the application under section 73 of Registration Act is condition precedent for institution of such suit.. This Court in the case of Surendra Kumar v. Amarjeet Singh and Ors. AIR 2004 Allahabad 335 has held that unregistered document of contract for sell in respect of immovable property cannot be enforced under Specific Relief Act. Therefore, in our view the decree of specific performance of the agreement to sell dated 22.01.1993 passed by court below is wholly illegal and cannot be sustained.

Registered document -- genuineness and presumption.

The court can not accept the genuineness of the document simply because it is registered. Registeration of any document does not ensure genuineness either of the contents of the documents or execution of the same. Registeration gives rise presumption that a document has been executed and registered.However,this presumption can be rebutted by adducing evidence.

2013 (1) U.A.D 147 UHC.

Ashok kumar & others versus State of Uttarakhand & others.

Readiness and Willingness

Section 20 and 16 (c)

Section 16 (c)”postulates continuous readiness and willingness on the part of plaintiff '"

It is a condition precedent for obtaining a relief of grant of specific performance of contract.

Azhar Sultana versus B.Rajamani and others

civil appeal No. 1077 of 2009

Decided on February. 17,2009

2009 (1) SCCD 525 (SC)

Readiness and willingness:-

Lack of pleading--- provision does not require any specific phrasealogy.Compliance with the readiness and willingness has to be in spirit and substance and not in letter and form.

                            Continuous readiness and willingness could be seen from the conduct of the plaintiff as a whole.

                             Faquir Chand and Others V. Sudesh kumari 2006 (3) Apex Court Judgment 259 (SC)

   WILL:

 PROBATE/letter of administration can not be granted in respect of incomplete will.
  Anil Kak versus Kumari Sharada Raje and others.
  2008 ( 3 ) SCCD 1261 ( SC ).

Execution of Will--Suspicious Circumstances:-
A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will.
  
 Proof of Will--Section 63 of Succession Act---Section 68 of Evidence Act: "Stated generally, a will has to be proved like any other document, the test to be applied being, the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainity.
Since section 63 of the Succession Act requires a will to be attested, it can not be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called  for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

H.Venkatachala Iyengar v. B.N.Thimmajumma 1959 supp (1) SCR 426; Jaswant kaur v. Amrit kaur (1977) 1 SCC 369; S.R. Srinivasa & others v. S.Padmavathamma 2010 (2) UAD 221 Supreme Court.

Difference Between Registered and Unregistered Will:-

 Held that,under Clause (a) of Sub - Section (2) of Section 41 of The Registration Act, 1908, the Registrar had the obligation of satisfying that the Will, or the instrument purporting to be Will, was executed by the testator. If the Registrar was satisfied about the execution of the purported Will by the testator, he certainly could register the Will. However, we make it absolutely clear that satisfaction of the Registrar that the Will was executed by the testator is no certificate that the same was executed in fact by the testator. At the same time, registration of a Will does not give more authenticity to the Will. An unregistered Will or a registered Will has no difference. A Will come into force only when the same is accepted by a competent Court to be a Will executed by the testator, who is supposed to have executed the same. This opinion of the court may be had by applying for probate or letters of administration annexed with the Will or in any other collateral proceedings.

SMT. SNEHLATA BHANDARI & ANR. Versus STATE OF UTTARAKHAND & ORS. 2013 (1) UAD 610, UTTARAKHAND HIGH COURT

FRAUD ON THE COURT

FRAUD ON THE COURT




" A judgment obtained by fraud or collusion, even, it seems a judgment of the House of Lords, may be treated as a nullity". S.B Noronah v. Prem Kumari Khanna., A.I.R 1980 SC 193. "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago.It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment / decree - by the first court and the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceeding. S.P. Chengalvaraya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs. AIR 1994 SC 853. It has been opened that fraud and collusion vitiate even the most solemn proceeding in any civilized system of jurisprudence. It has been defined as an act of trickery or deceit. Smt. Shrist Dhawan v. M/s. Shaw Brothers, AIR 1992 SC 1555. Yet in a recent decision "it has been held that no court will allow itself to be used as an instrument of fraud and no court ,by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. " The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof. Hamza Haji v. State of Kerala & Ans. AIR 2006 SC 3028.

FAMILY SETTLEMENT / ARRANGEMENT

FAMILY SETTLEMENT / ARRANGEMENT


When members of a family settled their disputes mutually about family property or the property of a relation about the inheritance of which there is a bona fide dispute between them known as a family settlement or arrangement. That the settlement must be bona fide and that there must be some consideration. It is well settled that a family arrangement is for saving the honor of the family by the maintenance of peace and harmony and the avoidance of future discord or the preservation of property. It will binding in the absence of fraud, coercion or undue influence.



OBJECT OF:


The object of the arrangement is to protect family from filing long drawn litigation or perpetual strife which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.




FAMILY:


That the family is to be understood in the wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, asembalance of claim or even if they have a spes succession is so that future dispute are sealed forever and litigation are avoided.




ESSENTIALS AND BINDING EFFECT:


That to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:






(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;






(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;






(3) The family arrangements may be even oral in which case no registration is necessary;






(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mare memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17(2) (sic) (sec. 17(1) (b) ?) of the Registration Act and is, therefore, not compulsorily registrable;






(5) The members who may be parties to the family arrangement must have some antecedent title, claim claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.Even if one of the parties to the settlement has no title but under the arrangement the other parties relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;






(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.










This article is based on decision given by the hon'ble Supreme Court in Kale versus Deputy Director of Consolidation and Others, AIR 1976 SC 807.The said principles reiterated in Badami(D) by her LR versus Bhali, 2012 (2) UAD 343 (SC).

How to Draft a Perfect Case:

How to Draft a Perfect Case: 

A successful lawyer must know the basic principal of drafting of a plaint, written statement; petition and affidavit etc. Pleadings are foundation of the claims of parties. Well drafted pleading play a very important role to get justice for their client.

Pleading in a Suit:
Pleading is defined in the code of civil procedure in O 6, RULE 1.as given below :- 

 "pleading" shall mean plaint or written statement."

Order 6 Rule 2 says pleading to state material facts and not evidence.
2 (1)every pleading shall contain and contain only a statement in concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. Basic principle of pleading is that "pleading should refer  to fact alone, it should not be argumentative averment."(M/s strong construction v. state of u.p. AIR 2005 All 224), Mandatory requirements--see-- Jitu Patnaik versus Sanatan Mohakud & Others 2012 (1) U.A.D. 767 (SC).

Pleading--held-- The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case,such evidence has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. Union of India versus Ibrahim Uddin & Anr 2012 (2) U.A.D. 566 (SC) 

Object of Pleading:-"It is well settled position of law that the whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. In order to have a fair trial it is imperative that the party should state the essential facts so that other party may not be taken by surprise. The parties thus themselves know what are matters left in dispute and what facts they have to prove at the proceeding and are thus given an opportunity to bring forward such evidence as may be appropriate. The main object of pleadings is to find out and narrow down the controversy between the parties. Contention which are not based on the pleadings cannot be permitted to be raised either at the time of arguments or at the appellate stage."The New India Assurance Co. Ltd. vs. Surender singh & others. (HC) UAD 2007, 423. 

 There are two types of pleading mainly in a suit:

1. Plaint.

 2. Written statement.

Plaint

Order 7 Rule 1 of civil procedure code says that plaint shall contain the following particulars:-
1. The name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description and place of residence of the defendant, so far as they can be ascertained.
4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect
5. The fact constituting the cause of action and when it arose.
6. The fact showing that the court has jurisdiction;
7. The relief which the plaintiff claim;
8. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or so relinquished :and
9. a statement of the value of the subject matter of the suit for the purposes  of jurisdiction and of court fees, so far as the case admits.

Written Statement:

 A 'defence' called the written statement ,in general this is a reply of plaint ,in which defendant deny or admit the each and every allegation or facts given in the plaint. Denial or admission must be Para wise and clear. In the written statement defendant can put his case also under the heading additional plea, and can states new facts or ground which is necessary to defeat the opponent. If defendant want to put his own claim against the plaintiff he can put it by way of set- off and counter claim u/o 8 Rule 6 and 6A of C.P.C.

NOTE:-The facts which remain unanswered by the defendant, it will be presumed that the said fact was admitted by the defendant. In general the fact which is taken to be admitted need not be proved. Pleading must be unambiguous clear and correct .Carelessly prepared pleading can spoil the suit.

Time for Filing of Written Statement:

 Time for filing written statement is fix for 30 days from the date of service of summon on him and maximum time limit from the date of service of summons is ninety days. Order, 8 Rule 1
Provision of Order 8,Rule 1.are directory in nature even after expiry of stipulated period court can extend time to file written statement. (AIR 2002 SC 2487, Rameshwar Lal v. Daya Nand AIR 2005.)

Frame of Suit:

Order 2 Rule 1 says:-  "Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subject in dispute and to prevent further litigation concerning them." There are two important things in order 2 rule 1, firstly, before framing a suit pleader should be remembered that "as far as practicable, it should be so framed as to afford ground for final decision of the subject in disputes." and secondly, to prevent further litigation concerning them.  

 Order 2 Rule 2 says:- that "every suit shall include the whole of the claims which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinguish any portion of his claim in order to bring the suit  within the jurisdiction of any court. Actually the main object of this rule is to avoid the multiplicity of suits, so its requires that every suit shall include  the whole of the claim which the plaintiff is entitled to make in respect of the cause of action"  If he omits or relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted  or relinquishes ( Order 2 Rule2 sub rule 3 ) but if he omits or relinquished any relief with the permission of the court he shall afterward can sue for the relief so omitted or relinquished ( Sub rule 3 of Rule 2 C.P.C.)

Fundamental Rule of Pleading:-

1. No amount of evidence can be looked into, upon a plea which was never put forward in the pleading. A question which did arise from the pleadings and which was not the subject matter of an issue , cannot be decided by the court.

 It is well settled that no amount of evidence can be looked into to find a case for which there has been absolutely no foundation in the pleadings. (Vide AIR 1930 P.C. 57 - Siddik Mohammed Shah v. Mt. Saran and others, Elizabeth v. Saramma - 1984 K.L.T. 606, Trojan & Co., v. Nagappa - AIR 1953 SC 235 , Bhagwadi Prasad v. Chandramaul - AIR 1966 SC 735). 

2.  A court cannot make out a case not pleaded , the court should confine its decision to the question raised in pleading nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint .

3.  A factual issues cannot be raised as considered for the first time in a second appeal.2009 (1) SCCD 220 SC. Bachhaj Nahar vs. Nilima Mandal and others.

What is Cause of Action

NOTES:- CAUSE OF ACTION--

"A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief  against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the defendant." A.B.C. Laminart Pvt. Ltd & Am: vs. A.P. Agencies Salem (1989) 2 SCC 163.

The "cause of action" is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must includes some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.Church of Christ Charitable Trust & Edu. Versus M/S Ponniamman Education, Trust 2012 (2) UAD 362

SARFAESI Remarkable Judgement

REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO.  3865  OF 2014
                 (Arising out of S.L.P.(C) No.24915 of 2011)




      J.Rajiv Subramaniyan & Anr.                      …Appellants


      VERSUS
      M/s. Pandiyas & Ors.                         ...Respondents
                                 WITH
                CIVIL APPEAL NO.  3866  OF 2014
               (Arising out of S.L.P.(C) No.25448 of 2012)


                               J U D G M E N T


      SURINDER SINGH NIJJAR,J.
      1.  Leave granted.
      2. These special  leave  petitions  are  directed  against  the  final
      judgment and order dated 14th June, 2011 passed  by  the  Madras  High
      Court (Madurai Bench) in W.A.No.417 of 2011 dismissing  the  aforesaid
      Writ Appeal filed by the appellants.
      3. We have heard the learned counsel for the parties at length.
      4.   Mr. Ashok Desai learned senior counsel appearing on behalf of the
      appellants has submitted that although many issues have been raised in
      the SLP, he is not pressing the point that the  High  Court  erred  in
      entertaining the writ petition filed by respondent Nos.1  and  2.  The
      point with regard to the maintainability  of  the  writ  petition  was
      taken on the basis of a judgment of this Court in the case  of  United
      Bank of India vs. Satyawati Tondon & Ors.[1]. It was urged before  the
      High Court that an alternative remedy being  available  to  respondent
      Nos.1 and 2 under the Securitization and Reconstruction  of  Financial
      Assets and Enforcement of Security  Interest  Act,  2002  (hereinafter
      referred to as “SARFAESI Act, 2002), the writ petition  would  not  be
      maintainable. The second issue with regard to the maintainability  was
      based on the fact that earlier respondent Nos. 1 and 2 had filed  Writ
      Petition Nos.5027-28 of 2006 challenging the auction sale notice dated
      23rd May, 2006. However, these writ petitions were  withdrawn  on  3rd
      July, 2006. The High Court did not give any liberty to respondent Nos.
      1 and 2 to file fresh writ petition. Mr. Desai very  fairly  submitted
      that it is not necessary to examine the issues on  maintainability  of
      the writ petition, as the entire issue is before this Court on merits.




      5.     Mr. Ashok Desai has pointed out that respondent Nos.1 and 2 had
      taken  various  loans  from  respondent  No.3-Bank.  Upon  failure  of
      Respondent Nos. 1 and 2 to repay the loan, the  assets  of  respondent
      Nos.1 and 2 which had been mortgaged with  respondent  No.3-Bank  were
      classified as non-performing assets  (NPA).  Inspite  of  such  action
      having been taken by respondent  No.3-Bank,  respondent  Nos.1  and  2
      failed to regularize the bank account. Therefore, on 8th  June,  2005,
      the bank-respondent No.3 issued notice  under  Section  13(2)  of  the
      SARFAESI Act, 2002 followed by a possession notice  on  12th  January,
      2006 under Section 13(4) of the  said  Act.  Respondent  Nos.1  and  2
      challenged the aforesaid two notices  by  filing  Writ  Petition  Nos.
      4174/2006,  4175/2006,  5027/2006  and  5028/2006.  In  the  meantime,
      auction sale was fixed on 7th July, 2006. But no sale  took  place  as
      there were no bidders. On           28th August, 2006, respondent Nos.
      1  and  2  sought  cancellation  of  the  auction  notice  and  sought
      permission of respondent No.3-Bank  to  sell  the  secured  assets  by
      private Treaty. It was stated that as on  that  date  the  outstanding
      balance due to the bank was a sum of Rs.1.57  crores.  A  request  was
      made to break up the aforesaid amount as follows :
      (a) Machineries of M/s. Suruthi Fabrics            -  0.40 lacs
      (b) Land and building of M/s. Suruthi Fabrics  -  0.70 lacs
      (c) Pandias Garment Factory land and Building -  0.47 lacs
          And Suruthi Fabrics 5.51 acres Land


      6.     Permission was sought to sell the assets as stated above within
      six months. On 11th September, 2006, respondent Nos.1  and  2  made  a
      payment of Rs.42 lacs to respondent No.3-Bank,  by  selling  machinery
      with the permission of respondent No.3-Bank. A request was  also  made
      for an extension of two moths for paying the  remaining  amount  after
      selling the secured assets. On     8th December, 2006, respondent No.3-
      Bank gave approval for private sale of the immovable property  to  the
      appellants and for issue of sale certificate. On the very  same  date,
      the secured assets were  sold  in  favour  of  the  petitioner  for  a
      consideration of 123.10 lacs. It is not disputed by Mr.  Vikas  Singh,
      learned senior counsel appearing for Respondent No.3,  that  the  sale
      was affected through Ge-Winn Management  Company,  Resolution  Agents.
      This is also evident from the proceedings of the meeting held  between
      respondent No.3-Bank and        Ge-Winn on 8th December, 2006.


      7.     We may point out here that the reserve  price  of  the  secured
      assets was fixed at 123 lacs. Sale deed was executed in favour of  the
      appellants by respondent No.3 on 20th December, 2006,  as  the  entire
      considerations  have  been  paid  on  15th  December,  2006.  On  21st
      December, 2006, respondent Nos.1 and 2  were  informed  by  respondent
      No.3-Bank that the secured assets had been  sold  for  more  than  the
      amount offered by them in the letter dated 28th August, 2006. At  that
      stage, respondent Nos.1 and 2  filed  Writ  Petition  No.325  of  2007
      without disclosing that the  earlier  Writ  Petition  Nos.5027-28/2006
      challenging the auction notice dated              23rd May,  2006  had
      been withdrawn without the court giving liberty to respondent  Nos.  1
      and 2 to file a fresh writ petition.


      8.    Upon completion of the proceedings inspite  of  the  preliminary
      objections taken by the appellants, the learned Single  Judge  allowed
      the writ petitions. The sale in favour of the petitioner was  held  to
      be vitiated on the ground that respondent No.3-Bank failed  to  follow
      the mandatory provisions of Rules 8(5), 8(6) and 9(2) of the  Security
      Interest (Enforcement) Rules, 2002 (hereinafter referred to as ‘Rules,
      2002’). But a direction was issued to refund the amount  paid  by  the
      petitioner i.e. Rs.1crore 41 lacs with interest at 9% per  annum  from
      April, 2007.


      9.    Aggrieved by the aforesaid  order,  the  appellants  filed  Writ
      Appeal No.4127/2011 in the High Court, which has also been dismissed.


      10. Mr. Ashok Desai  submits  that  the  petitioner  is  a  bona  fide
      purchaser and has paid the full consideration. Sale deed has been duly
      executed. Possession of the property  is  with  the  appellants  since
      2006. Therefore, respondent Nos.1 and 2 should  not  be  permitted  at
      this stage to claim that the sale is vitiated on the  ground  that  it
      has been affected through an agent of respondent No.3-Bank, namely, Ge-
      Winn. Mr. Desai submitted  that  the  Single  Judge  as  well  as  the
      Division Bench have wrongly held that  there  has  been  violation  of
      Rules 8(5), 8(6), 8(8) and 9(2) of the Rules, 2002. Mr. Desai  further
      submitted that it would be equitable to permit the petitioner to  keep
      the plot  which  is  adjacent  to  the  property  of  the  petitioner.
      Respondent Nos.1 and 2 can be permitted to take the other plots.


      11. Mr. Dhruv Mehta, learned senior counsel appearing on behalf of the
      respondent Nos. 1 and 2 relying on  the  judgment  of  this  Court  in
      Mathew Varghese Vs. M.Amritha Kumar & Ors. in C.A.No.1927-1929 of 2014
      decided on 10th February,  2014  submits  that  the  Rules,  2002  are
      mandatory in nature. In the present case, the sale has  been  effected
      in violation of the aforesaid rules. Both the learned Single Judge  as
      well as the Division Bench  have  come  to  the  conclusion  that  the
      provisions of the aforesaid rules have not been followed.  It  is  not
      disputed by any of the parties that  there  is  no  agreement  between
      respondent Nos. 1 and 2  and  respondent  No.3-Bank,  in  writing,  to
      affect the sale by Private  Treaty.        Mr.  Vikas  Singh,  learned
      senior counsel appearing for respondent  No.3-Bank,  however,  pointed
      out that the respondent Nos.1 and 2 had filed  a  review  petition  in
      which it was averred that they may be permitted to  sell  the  secured
      assets by Private Treaty. Therefore, according  to  Mr.  Vikas  Singh,
      respondent Nos. 1 and 2 cannot now be heard to say that they  had  not
      given their consent to affect the  sale  by  Private  Treaty.  We  are
      unable to accept the submission made by Mr. Vikas Singh that there  is
      no violation of the Rules, 2002. In our opinion, the findings recorded
      by the learned Single Judge as well as the Division Bench of the  High
      Court that there has been a violation of  Rules,  2002  are  perfectly
      justified.


      12. This Court in the case of Mathew Varghese Vs.  M.Amritha  Kumar  &
      Ors.[2] examined the procedure required to be followed by the banks or
      other financial institutions when the secured assets of the  borrowers
      are  sought  to  be  sold  for  settlement  of   the   dues   of   the
      banks/financial  institutions.   The  Court  examined  in  detail  the
      provisions of the SARFAESI Act, 2002.  The  Court  also  examined  the
      detailed procedure to be followed by the  bank/financial  institutions
      under the Rules, 2002.  This  Court  took  notice  of  Rule  8,  which
      relates to Sale of immovable secured assets and Rule 9  which  relates
      to time of sale, issue of sale certificate and delivery of  possession
      etc.  With regard to Section 13(1), this Court observed  that  Section
      13(1) of SARFAESI Act, 2002 gives a free hand to the secured creditor,
      for  the  purpose  of  enforcing  the  secured  interest  without  the
      intervention of Court or Tribunal.  But  such  enforcement  should  be
      strictly in conformity with the provisions of the SARFAESI Act,  2002.
      Thereafter, it is observed as follows:-
           “A reading of Section13(1), therefore, is clear  to  the  effect
           that while on the one hand any SECURED CREDITOR may be  entitled
           to enforce the SECURED ASSET created in its favour  on  its  own
           without resorting to any court proceedings  or  approaching  the
           Tribunal, such enforcement should  be  in  conformity  with  the
           other provisions of the SARFAESI Act.”


      13.   This Court further observed  that  the  provision  contained  in
      Section 13(8) of the  SARFAESI  Act,  2002  is  specifically  for  the
      protection of the borrowers in as much as, ownership  of  the  secured
      assets is a constitutional right vested in the borrowers and protected
      under Article 300A of  the  Constitution  of  India.   Therefore,  the
      secured creditor as a trustee of the secured asset can not  deal  with
      the same in any manner it likes and such an asset can be  disposed  of
      only in the manner prescribed in the SARFAESI Act,  2002.   Therefore,
      the creditor should ensure that the borrower was clearly put on notice
      of the date and time by which either the  sale  or  transfer  will  be
      effected in order to provide the required opportunity to the  borrower
      to take all possible steps for retrieving his property.  Such a notice
      is also necessary to ensure that the process of sale will ensure  that
      the secured assets will be sold to  provide  maximum  benefit  to  the
      borrowers.  The notice is also necessary to ensure  that  the  secured
      creditor or any one on its  behalf  is  not  allowed  to  exploit  the
      situation by virtue of proceedings initiated under the  SARFAESI  Act,
      2002.  Thereafter, in Paragraph 27, this Court observed as follows:-


           “27. Therefore, by virtue of the  stipulations  contained  under
           the   provisions   of   the   SARFAESI   Act,   in   particular,
           Section 13(8), any sale or transfer of a SECURED  ASSET,  cannot
           take place without duly informing the borrower of the  time  and
           date of such sale or transfer in order to enable the borrower to
           tender the dues of the SECURED CREDITOR with all costs,  charges
           and expenses and any such  sale  or  transfer  effected  without
           complying  with  the  said  statutory  requirement  would  be  a
           constitutional violation and nullify the ultimate sale.”


      14. As noticed above, this Court also examined Rules 8 and  9  of  the
      Rules, 2002.  On a detailed analysis of  Rules 8 and 9(1), it has been
      held that any sale effected without complying with the same  would  be
      unconstitutional and, therefore, null and void.
      15. In the present case, there is an additional reason  for  declaring
      that sale in favour of the appellant was a nullity.  Rule 8(8) of  the
      aforesaid Rules is as under:-
           “Sale by any method other than public auction or public  tender,
           shall be on such terms as may be settled between the parties  in
           writing.”




      16. It is not disputed before us that there were no terms  settled  in
      writing between the parties that the sale can be affected  by  Private
      Treaty.  In fact, the borrowers – respondent Nos. 1  and  2  were  not
      even called to the joint meeting between the Bank  –  Respondent  No.3
      and         Ge-Winn held on 8th December, 2006.  Therefore, there  was
      a clear violation of the aforesaid Rules rendering the sale illegal.


      17. It  must  be  emphasized  that  generally  proceedings  under  the
      SARFAESI Act, 2002 against the borrowers are initiated only  when  the
      borrower is in dire-straits.  The provisions of the SARFAESI Act, 2002
      and the Rules, 2002 have been enacted to ensure that the secured asset
      is not sold for a song.   It  is  expected  that  all  the  banks  and
      financial institutions which resort to the extreme measures under  the
      SARFAESI Act, 2002 for sale of the secured assets to ensure, that such
      sale of the asset provides maximum benefit to the borrower by the sale
      of such asset. Therefore, the secured creditors are expected  to  take
      bonafide measures to ensure that there  is  maximum  yield  from  such
      secured assets for the borrowers.  In  the  present  case,  Mr.  Dhruv
      Mehta has pointed out that sale consideration is only Rs.10,000/- over
      the reserve price whereas the property was worth much more.  It is not
      necessary for us to go into this question as, in our opinion, the sale
      is null and void being in violation of the provision of Section 13  of
      the SARFAESI Act, 2002 and Rules 8 and 9 of the Rules, 2002.


      18. We, therefore, have no hesitation in upholding  the  judgments  of
      the learned Single Judge and the Division Bench of the High  Court  to
      the effect that the sale effected in favour of the appellants on  18th
      December, 2006 is liable to be set aside.


      19. This now brings us to moulding the relief in  the  peculiar  facts
      and circumstances of this case.


      20.  As noticed earlier, Mr. Ashok Desai had emphasized on  behalf  of
      the appellants that no blame at all can be attributed  to  them.   The
      bank had decided to sell the immovable properties  to  the  appellants
      for Rs.1,23,10,000/- against  the  reserve  price  of  Rs.1,23,00,000.
      This is evident from the joint meeting of the bank held  with  Ge-Winn
      on 10th December, 2006, wherein it is observed as follows:-
           “Referring to the above in the presence of  the  undersigned  it
           has been decided to effect the sale to  M/s.  Susee  Automobiles
           Pvt.  Ltd.,  Madurai  and  Smt.  Nirmala  Jeyablan,   W/o   Shri
           Jayabaaalan, No.4,  S.V.  Nagar,  S.S.  Colony,  Madurai  for  a
           consideration of Rs.123.10 lakhs (Rupees one crore twenty  three
           lakhs and ten  thousand  only)  against  the  reserve  price  of
           Rs.123.00 lakhs and  issue  Sale  Certificate  for  registration
           under private treaty.”


      21. Mr. Desai had also pointed out that the borrowers -Respondent No.1
      and 2 had evaluated the property at Rs.117 lakhs.  The evaluation  was
      acknowledged  by  Respondent  Nos.  1  and  2  in  the  letter   dated
           28th August, 2006.  Therefore, the reserve price was fixed  based
      upon the aforesaid figures.  The appellants bought  the  property  for
      more  than  the  reserve  price.   The  appellants  paid  the   entire
      consideration within three days of the sale, i.e., on  15th  December,
      2006.  The Sale Deed was executed in their favour  on  20th  December,
      2006.   Possession  was  admittedly  delivered   on               20th
      December, 2006 also.  The appellants have  also  incurred  substantial
      loss as they have been  unnecessarily  dragged  into  litigation.   He
      pointed out that the  appellants  have  in  fact  incurred  losses  of
      Rs.3 crores as they were deprived of using the property in view of the
      interim orders passed by the High Court and they were forced  to  take
      other property on monthly rent of Rs.3 lakhs from  January  2007.  He,
      therefore, submitted that the proposal  made  by  the  appellants  for
      being permitted to keep the plot  adjacent  to  the  property  already
      owned by them,  be  accepted.   In  the  alternative,  learned  senior
      counsel submitted that the High Court has  unnecessarily  reduced  the
      amount of interest on the amount deposited by the appellants with  the
      bank would bear only 4% interest.  He submitted  that  the  appellants
      are entitled to 18% compound interest since the date  the  amount  was
      deposited till refund.


      22.    On the other hand, Mr. Dhruv Mehta pointed out that property of
      Respondent No.1 has been sold for a ridiculously  low  price,  as  the
      bank is interested only in regularizing the account of  the  borrower.
      He has submitted  that  respondent  Nos.  1  and  2  are  prepared  to
      compensate the appellants, to a reasonable  extent,  but  not  to  the
      extent claimed by Mr. Desai.


      23.     On the other hand, Mr. Vikas Singh has submitted that in  case
      the sale is to be set aside and the properties have to be returned  to
      the borrowers, the dues of the bank also have to be secured, which are
      now in the region of Rs.4 crores.


      24. We have considered the submissions made by the learned counsel for
      the parties.


      25.  Initially  on  our  suggestion,  respondent  Nos.  1  and  2  had
      quantified the amount in accordance with the directions issued by  the
      learned Single Judge.  The learned Single Judge had ordered refund  of
      Rs.1,41,00,000/-, (Representing Rs.1,23,10,000/-  towards  Sale  Price
      and Rs.18,90,000/- towards Stamp Duty with interest @9% per annum from
      April 2007).  However, since we had accepted  the  second  alternative
      (partially) of Mr. Ashok Desai, the appellants  and  respondents  have
      jointly submitted the following chart:-
|Amount quantified by the    |Interest@ 18%    |Total             |
|Learned Single Judge        |from April 2007  |                  |
|                            |to 15.06.2014    |                  |
|Rs. 1,41,00,000/-           |Rs. 1,84,00,500/-|Rs. 3,25,00,500/- |
|Rs. 1,23,10,000/- Sale Price|                 |                  |
|Rs. 18,90,000/- (Stamp Duty)|                 |                  |


      26.  Mr. Dhruv Mehta has stated that  Respondent  Nos.  1  and  2  are
      prepared to refund the sale amount paid  by  the  appellants  as  Sale
      Price together with 18% simple interest from 1st July, 2007 till  15th
      June, 2014. The total  amount  spent  on  Stamp  Duty  shall  also  be
      refunded to the appellants. The total amount  shall  be  paid  to  the
      appellants by 15th June, 2014.  Mr. Desai had  pointed  out  that  the
      amount deposited with the bank, which is said to be  lying  in  a  FDR
      Bearing 8.25% per annum ought to  be  refunded  by  the  bank  to  the
      appellants.  Upon the entire amount being repaid  to  the  appellants,
      the possession of the property purchased by  the  appellants  will  be
      delivered to the Respondent Nos.1   and  2.
      27.   Insofar as the submission of  Mr.  Vikas  Singh  learned  senior
      counsel  is concerned we are unable to accept the same  in  the  facts
      and circumstances of this case  It would be relevant to point out that
      the learned Single Judge of the High Court after holding that the sale
      in question was invalid, directed making  of  payments  by  respondent
      Nos. 1 and 2 to respondent No.3 bank with clear direction that on such
      payment, insofar as  the  bank  is  concerned  its  dues  shall  stand
      settled.    Not only respondent Nos. 1  and  2  made  the  payment  as
      directed which was  accepted  by  respondent  No.3  bank,  insofar  as
      respondent No.3 bank is concerned it even accepted the  said  judgment
      and did not file any appeal thereagainst.  Only  the  appellant  filed
      the appeal.  Though the order of the learned Single  Judge  about  the
      validity of the sale had been affirmed, the Division Bench  interfered
      with the other direction of the learned Single Judge which should  not
      have been done as bank had not challenged the  order  of  the  learned
      Single Judge.  We are, therefore, of the opinion that in the facts  of
      this case, once the payment is made to  the  appellant  by  respondent
      Nos.1 and 2 in the manner stated hereinafter, the  possession  of  the
      property shall be delivered to the respondent  Nos.1  and  2  with  no
      further liability towards the bank
      28.    In view of the aforesaid, we hold that the sale  in  favour  of
      the appellants dated 18th December, 2006 and the  subsequent  delivery
      of possession to the  appellants  is  null  and  void.   The  sale  is
      accordingly set aside. The appellants  are  directed  to  deliver  the
      possession of the property purchased by them under the Sale Deed dated
      20th December, 2006 to  Respondent  Nos.  1  and  2  immediately  upon
      receiving the entire amount as directed hereunder:-
      (i)   The State Bank of India – Respondent No.3 directed to refund the
           entire proceeds of the FDR in which the sale  consideration  was
           deposited together with accrued interest forthwith.
      (ii)  The Respondent Nos. 1 and 2 will ensure that the  entire  amount
           due to the appellants is paid on or before 15th June, 2014.
      (iii) Upon receipt of the  entire  amount,  the  possession  shall  be
           delivered to Respondent Nos. 1 and 2.
      29. With these observations, the appeals are disposed of with no order
      as to costs.


                                                             ….………………………..J.
                                                     [Surinder Singh Nijjar]






                                                              …………………………..J.
                                                                 [A.K.Sikri]
      New Delhi;
      March 14, 2014.




























                                                     -----------------------
[1]    [2010 (8) SCC 110]
[2]    2014 (2) Scale 331

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