Gheetin Singh vs Canara Bank and Others

J.P. Singh, J.—This civil revision is directed against order dated 05-10-2007 of Learned Additional District Judge (Bank Cases), Jammu,

rejecting petitioner's application seeking his impleadment as party defendant to a suit for recovery of an amount of Rs. 51,95,633/- filed by Canara

Bank against Mr. K.K. Kohli and Smt. Shanti Devi.

The Petitioner says in this revision petition that Mr. K.K. Kohli had obtained loan from Canara Bank and in lieu of that had mortgaged a

property comprising of land and house at Gandhinagar, Jammu.

Without disclosing the factum of having mortgaged the property, Mr. K.K. Kohn had executed a Power of Attorney and an Agreement to sell

with him after receiving an amount of Rs. 49 lacs. The petitioner is stated to have executed a Sale Deed of the house in question in favour of one

Madan Mohan Bhargav. According to the petitioner, after executing the Power of Attorney and the Agreement to Sell, Mr. K.K. Kohli, had

started maneuvering the proceedings in the suit so that an ex-parte decree was passed against him. Aggrieved by the conduct of Mr. Kohli,

petitioner is stated to have lodged F.I.R No. 182 of 2007 with Police Station Gandhinagar, Jammu. In order to protect his rights in the house

stated to have been purchased by him from Mr. K.K. Kohli, the petitioner seeks his impleadment as a party defendant to the Canara Bank's suit.

Mr. Sethi, appearing for the petitioner, refers to Amit Kumar Shah and Anr. v. Farida Khatoon reported as AIR 2005 2209 to urge that the

trial Court had erred in not applying the principle of LIS PENDENS while considering petitioner's impleadment as party defendant. He further says

that he was a necessary party to the proceedings in the suit and his prayer had been erroneously rejected.

I have considered the submission of Mr. Sethi and gone through the order passed by the trial Court rejecting petitioner's application for his

impleadment as party defendants.

While rejecting the application of the petitioner, the trial Court had observed as under:

The second application as regard to the applicant Gheetin Singh who claims to be power of attorney holder of the defendant No. 1 in my view has

no legal right or locus-standi to file the present application, so as to implead him as party defendant in the case as he is neither a necessary nor a

proper party to the case. As per the photocopy of the sale deed later on produced by the counsel for the applicant during the course of arguments

reveals that the present applicant has got no right or interest over the mortgaged property, even the said applicant has not placed on the record any

authority much less the power of attorney authorizing him to move the instant application on behalf of the principal owner i.e. Madan Mohan

Bhargav. The applicant is blowing hot and cold in the same breath as per the agreement to sell the sale consideration has been shown as 49.00 Lac

and as per the photocopy of the sale deed placed on the record the sale consideration has been shown as Rs. 4.5 Lac which all shows that the

applicant has not came with clean hands in this Court and it is a settled law that in case a person does not come with clean hands in the Court no

equity lies in his favour.

The present application is also vague, misconceived and is devoid of any legal force. The law cited by the counsel for the applicant is not

applicable to the facts and circumstances of the present case as in the said authority on the basis of adverse possession claimed by the applicant he

was arrayed as party defendant by the Hon'ble Apex Court of the land even at the appellate stage.

Viewed thus, the second application also being misconceived, vague and devoid of any legal force requires outright dismissal, which is also hereby

dismissed.

Suit for recovery of an amount of Rs. 51,95,633/- filed by Canara Bank against Mr. K.K. Kohli and his wife Smt. Shanti Devi Kohli, appears

to have been filed somewhere in 1991. After having remained pending in the trial Court for over a period of 16 years, it has now become ripe for

hearing. Petitioner has not shown as to how his presence before the Court was necessary for the disposal of the suit. It also does not come out as

to how in his absence, the Court will not be able to decide the plaintiff's suit seeking recovery of amount from the defendants. The property

mortgaged by the defendants to the plaintiff-bank is a security for the recovery of the amount in case the suit was decreed. Mr. K.K. Kohli-

defendant's alleged act of constituting the petitioner as his attorney and his executing an Agreement to Sell with him does not provide him any right

to seek his impleadment as a party defendant to the suit. This is so because neither is there is any valid conveyance by Mr. Kohli in favour of the

petitioner regarding the mortgaged house and nor could there have been any valid conveyance between Mr. Kohli and the petitioner so long as the

mortgage with the Bank subsisted. Even otherwise, the alleged dealing between the petitioner and Mr. K.K. Kohli cannot be made a subject

matter of dispute in the suit which the Bank has filed against Mr. K.K. Kohli.

The judgment cited by Mr. Sethi would have no application to the facts of the present case because Hon'ble Supreme Court of India had

employed the principle of LIS PENDENS in that case because the suit there pertained to rights to IMMOVABLE PROPERTY and in that view

of the matter the Supreme Court had considered the impleadment of the party to whom the property stood transferred during the pendency of the

suit, as necessary party.

The case in hand is clearly distinguishable because in the absence of any valid conveyance by Mr. Kohli in favour of the petitioner, he cannot

step into the shoes of Mr. Kohli. That apart, Bank's suit is a suit for recovery of an amount of Rs. 51,95,633/- and not a suit where any right to

IMMOVABLE PROPERTY is directly and specifically in question justifying invoking of the principle of LIS PENDENS for considering the

impleadment of the person purchasing property during the pendency of the suit.

There is yet another aspect of the matter which needs to be noticed. The petitioner, has annexed a copy of the Sale Deed allegedly conveying

the property which stood mortgaged to the Bank, to one Dogar Nath Bhargav. Regardless of the value of this document, the petitioner on his own

showing, with the execution of the Sale Deed, has lost all what he had claimed to have in respect of the mortgaged property. He, therefore, can

not, on any count whatsoeverm seek his impleadment as party defendant to the suit.

I, therefore, entirely agree with the observations of the trial Court that the petitioner had been blowing hot and cold in the same breath and had

not come to the Court with clean hands.

I further find that petitioner is neither a necessary nor a proper party to the Bank's suit against the defendants and his filing application seeking

impleadment as party defendant was utterly misconceived and appears to have been moved with malafide intentions to delay the progress of the

Bank's suit.

There is no error of law or jurisdiction in the impugned order which may require interference by this Court.

This revision petition is, accordingly, dismissed as misconceived.