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Judgment
Servesh Kumar Gupta, J. - These review applicants have come up before the Court seeking to review/recall/clarify/modify the last paragraph of the impugned judgment dated 10.11.2014 passed by this Court in Civil Revision No. 52/2014, titled as S.S. Sharma v. District Cooperative Bank and Others. Such application has been filed with the delay of 388 days, wherefor they have elaborately explained the excuses. That apart, none of the parties has filed any objection against the delay condonation application despite availing the opportunity twice for the same. So, this delay is condoned.
On review application, too, no such objection has been filed by either of the parties. Over and above that, the learned Counsel on behalf of District Cooperative Bank Ms. Sonia Chawla, holding brief of Mr. Paresh Tripathi, has expressed her "no objection" if the last paragraph of the impugned judgment is recalled/reviewed/clarified/modified whatsoever.
So, this Court has heard the arguments of learned Counsel on behalf of the review applicants and has perused the grounds stated in the supporting affidavit. It will be quite relevant to have note of certain facts.
The property, in question, is situated at 20, Curzon Road, Dehradun and it was originally owned by one Mr. Kartar Singh, who purchased the same on 30.1.1946 vide registered sale deed, as disclosed in paragraph 4 of the affidavit moved by Mr. Pradeep Walia (one of the applicants herein). This Kartar Singh passed away on 29.1.1958 and property was succeeded by his six successors, viz., Surendra Singh, Tejendra Singh, Bhupender Singh (all sons) and three daughters Smt. Harbhajan Suri, Smt. Devendra Kaur and Smt. Indrajeet Kaur, who were the defendants no. 5 to 10/proforma respondents here in Civil Revision No. 52/2014.
It transpires that one Mr. Jagtar Singh purchased a truck after sanction of loan from Uttar Pradesh Financial Corporation (hereinafter called as UPFC), where for Bhupender Singh (one of the successors of such property), having ⅙th share only, was the guarantor for the loan. When such loan could not be paid by Jagtar Singh, so, the UPFC proceeded to auction the whole property in order to recover such loan and the auction was made on 25.2.1991 in favour of two cooperative societies under the name and style of Khadi Gramodhyog Cooperative Society, Majra and Cooperative Khukhri Manufacturing Industrial Committee at 129 Old Dalanwala, Dehradun. These societies were constituted by four persons, viz., S.S. Sharma, H.D. Sharma, B.B. Sharma and Smt. Radharani (all three sons/wife of late Sri S.P. Sharma). These societies purchased the auction after taking financial assistance from the District Cooperative Bank, Dehradun.
It further appears that such auction, held on 25.2.1991, was challenged under the Suit No. 337/1991 and 626/1998 by the successors-in-interest of the property in question. The District Cooperative Bank also applied for being impleaded as party in those suits, but it was not permitted by the Court of the Additional District Judge/FTC 6th, Dehradun vide its order dated 14.6.2009 holding that the successors-in-interest (plaintiffs in those suits) were not responsible for the payment taken by the two afore named societies from the District Cooperative Bank and it was observed that such bank had every right to institute independent suit for recovery. Even though the bank instituted the Suit No. 505/2013 not with the prayer of recovery but only for injunction with the array of the parties of S.S. Sharma and brothers as defendants no. 1 to 4 and all successors-in-interest of such property from its original owner Mr. Kartar Singh (defendants no. 5 to 10), wherein the relief of injunction was sought restraining all the defendants from creating the third party interest in such property.
Defendants no. 1 to 4 i.e. Mr. S.S. Sharma and brothers moved an application under Order 7, Rule 11 CPC for rejection of the plaint on the ground that the suit could have been instituted only against the cooperative societies, who obtained the financial assistance from the plaintiff cooperative bank for participating in the auction sale, where for no notice was given to them, much less they have been impleaded in the array of parties by name as defendants no. 1 to 4. This application was rejected by the order dated 30.5.2014 passed by Civil Judge (Sr. Div.), Dehradun, where against the Civil Revision No. 52/2014 was filed by Mr. S.S. Sharma, which also failed and was dismissed in limine by this Court. In addition to dismissing such revision, this Court in the last paragraph has passed the following order:
"In order to protect all public interests, this Court restrains all the defendants from creating any third party interest on the property in question, without waiting for any appeal or revision at the instance of the Bank."
Undoubtedly, the public interest must be protected in all respects, but it is evident that such order, depicted in the last paragraph, has been passed by this Court unwittingly, without having knowledge of true and real facts, which may be summarised as under:
(a) Bhupender Singh stood as a guarantor for the loan taken by Jagtar Singh from the UPFC, but he could have become such guarantor only to the extent of his ⅙th share in such property and not beyond that, while the whole property was put to auction by the UPFC, which at any rate could not have done so.
(b) As is evident from the registered letter dated 27.9.2003 under the signature of Regional Manager of UPFC to Mr. Bhupender Singh (part of Annexure No. 4 with the review application), wherein it has been admitted that on account of one-time settlement, it was agreed that Rs. 12,05,000/- was payable by Bhupender Singh to UPFC and out of such money, Rs. 1,20,500/- had already been paid by him, while Rs. 10,84,500/- was to be paid within one month from the approval of such letter, and the said amount of Rs. 10,84,500/- was also paid by Bhupender Singh vide the bankers cheque no. "000740" dated 21.10.2003 of the Urban Cooperative Bank, Dehradun. Photocopy of such bankers cheque has been enclosed as part of Annexure No. 4 with the review application.
(c) Auction sale was never finalised. So, there was no question of passing the title of property under the ownership of two societies constituted by Mr. S.S. Sharma and his brothers.
(d) After the death of its owner Mr. Kartar Singh, whole property was got divided in six shares among its successors and they sold their respective shares to different persons. A portion of such property was also sold by Tejendra Singh and Bhupender Singh with the consenting party Surendra Singh and others in favour of Kamal Arora, Rakesh Mamgain and Pradeep Walia (review applicants) vide sale deed dated 11/12.12.2013 (referred as Annexure No. 6), while the impugned order was passed by this Court on 10.11.2014 restraining Mr. Tejendra Singh and his brothers as well as the persons who constituted the societies. So, it is obvious that this part of the order, referred in inverted commas here in above, where for the review has been sought by the purchasers, could not have passed had the Court been in notice of the real facts nay the execution of the sale deed on 11.12.2013 (i.e. one month before) because such sale deed had already been done by the successors-in-interest of the property, in question, to Mr. Kamal Arora and his associates.
In view of what has been set forth above, this review application is hereby allowed and the last paragraph of the impugned judgment i.e. "In order to protect all public interests, this Court restrains all the defendants from creating any third party interest on the property in question, without waiting for any appeal or revision at the instance of the Bank." is hereby recalled in its entirety.