Nirmal Singh Kukreja vs Suraj Gupta and Others

Sanjay Karol, J.—Plaintiff Nirmal Singh Kukreja has filed the present suit against defendant No. 1 Suraj Gupta for recovery of sum of Rs. 15,13,505/- along with interest @ 18% per annum, pendente lite and future as also a decree for permanent perpetual prohibitory injunction restraining the said defendant from selling, disposing of, alienating or encumbering in any manner whatsoever his one half undivided share in immovable property compromising Khata Khatauni No. 50/100, Khasra No. 357, measuring 0-05-37 hectares situate in Mauza Dagog, Pargana Sapoli, Tehsil and District Shimla (Rural) and land bearing Khata Khatauni No. 50/100, Khasra No. 358, measuring 0-07-53 hectares situate in Mauza Dagog, Pargana Sapoli, Tehsil and District Shimla (Rural), till such time the decretal dues of the plaintiff are paid by the said defendant. State Bank of India is pro forma defendant No. 2. Summons in the suit were issued. Defendant No. 1 chose not to appear and contest the suit despite publication of summons in the daily newspaper.

Plaintiff has averred that his daughter was married to defendant No. 1 Suraj Gupta on 31.10.2001. In order to set up an industrial unit in the name and style of M/s. Surya Packaging Industries, Baddi, the said defendant took financial assistance from H.P. Financial Corporation and State Bank of India (defendant No. 2). With respect to the same, plaintiff stood guarantor and executed deeds of guarantee dated 20.5.2004 and 28.5.2004, respectively. Plaintiff also mortgaged his own immovable property. Suraj Gupta committed serious defaults in payment of the debt due to various Financial Institutions. As a result thereof, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI) were initiated. The assets and the Industrial Unit were taken over and sold by the H.P. Financial Corporation. Since the Financial Institutions were asking the plaintiff to make good the deficiencies with regard to the entire outstanding amount, plaintiff negotiated and entered into one time settlement with the defendant-Bank and agreed to pay a sum of Rs. 32 lacs.

In order to show his bona fides on 6.12.2007 he also deposited a sum of Rs. 3,22,500/-. After sale of other assets of defendant No. 1 by the other financial institutions and adjustment of sale proceeds thereof, eventually it was found that a sum of Rs. 12,10,145.67 was due and payable by defendant No. 1 to defendant No. 2. Some time in August, 2007, defendant No. 1 permanently left for United States of America and deserted the plaintiff''s daughter leaving the plaintiff to fend for her and also meet the financial liabilities.

The matrimonial alliance between the daughter of plaintiff and defendant No. 1 came to an end with the passing of a decree of divorce dated 15.5.2010 by the Court of competent jurisdiction.

Plaintiff further negotiated with the defendant-Bank and agreed to pay a sum of Rs. 7,66,880/- over and above a sum of Rs. 3,22,500/-, which already stood paid by him on 6.12.2007. Eventually, the said agreed amount was deposited by him with defendant No. 2-Bank on 10.9.2008. Defendant No. 1 has not come forward to pay the amount to the plaintiff.

Resultantly, plaintiff has filed the present suit claiming the following sum from defendant No. 1 :--

Plaintiff has also averred that in order to defeat his claim, defendant No. 1 who is having one half share in the suit property is likely to alienate, encumber or transfer the suit property.

Defendant No. 2 has substantially admitted the averments so made by the plaintiff by filing written statement.

Based on the pleadings of the appearing parties, the following issues were framed:--

Whether the plaintiff is entitled to a sum of Rs. 15,13,505/- or what other amount from defendant No. 1 and at what rate of interest and from which date? OPP

Whether the plaintiff is entitled to a decree of permanent perpetual prohibitory injunction against the defendant as claimed? OPP

Relief

ISSUE Nos. 1 and 2:

As both the issues are interconnected and interlinked, the same are decided together.

Plaintiff only examined himself as PW-1 and no evidence was led by defendant No. 2.

Having perused the statement and material placed on record, plaintiff has substantially proved his case. Ext. PW-1/B is the agreement entered into between defendant No. 2-Bank and defendant No. 1 who is the sole Proprietor of M/s. Surya Packaging Industries, Baddi. In terms of the said agreement, cash credit limit of Rs. 25 lacs was sanctioned in favour of defendant No. 1. Deed of guarantee (Ext. PW-1/C) was executed by the plaintiff on 26.5.2004. This is in connection with and pursuant to the agreement Ext. PW-1/B. H.P. Financial Corporation, vide notice dated 28.4.2007 (Ext. PW-1/H) recalled the amount of loan sanctioned in favour of defendant No. 1. Ext. PW- 1/D is the notice dated 12.7.2007 got issued by defendant No. 2 calling upon plaintiff and defendant No. 1 to deposit a sum of Rs. 32 lacs. Ext. PW-1/E and Ext. PW-1/J are the notices issued by the Bank initiating proceedings under the SARFAESI Act. The possession of the mortgaged property was taken over by the Bank vide communication dated 15.1.2007 (Ext. PW-1/F). The same was put to sale. Ext. PW-1/G is a communication on record to this effect. On 6.12.2007 defendant No. 2 bank issued a letter (Ext. PW-1/K) whereby defendant No. 2 Bank approved the plaintiff''s offer of one time settlement.

Plaintiff has clearly deposed that after the acceptance of one time settlement, certain payments were received by the Bank from the H.P. Financial Corporation pursuant to sale of assets of the firm. Plaintiff has further proved that he negotiated with the defendant Bank, acting in the best interest of the parties concerned. Vide communication dated 10.9.2008 (Ext. PW-1/N) the Bank agreed to settle the matter subject to plaintiff''s paying a sum of Rs. 7,66,880/-. This amount was over and above the amount of Rs. 3,22,500/- already stood paid by him to the defendant-Bank. The Bank vide communications dated 19.9.2008 (Ext. PW-1/Q) and 23.3.2010 (Ext. PW-1/P) vacated the charge of the property mortgaged belongs to the plaintiff and also issued a certificate of deposit towards liquidation of all outstanding dues payable by defendant No. 1. Plaintiff has also proved the fact (Ext. PW-1/A) that the marriage between his daughter and defendant No. 1 stood dissolved u/s 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

In my considered view, the plaintiff has proved the averments so made in the plaint. He has negotiated with the Bank keeping in view the best interest of the parties. He has paid the amounts claimed for in the suit to the Bank. There is sufficient evidence to this effect.

Since the transaction between the parties was commercial in nature, the plaintiff has rightly claimed interest @ 18% per annum on the payments so made on various dates to the Bank as mentioned herein earlier.

Plaintiff has also proved that defendant No. 1 has left India and his apprehension that he may alienate, transfer or encumber his share in the immovable suit property is well founded. As such, in my considered view, plaintiff is entitled to the relief claimed. Issue Nos. 1 and 2 are decided in favour of the plaintiff and against defendant No. 1.

Relief:

In view of above discussion, the suit of the plaintiff is decreed with costs to the effect that the plaintiff is entitled to recover a sum of Rs. 15,13,505/- from defendant No. 1 along with interest pendente lite and future as claimed for. Also defendant No. 1, by way of a decree of permanent perpetual prohibitory injunction is restrained from selling, disposing of, alienating or encumbering in any manner whatsoever, his one half undivided share in immovable property compromising Khata Khatauni No. 50/100, Khasra No. 357, measuring 0-05-37 hectares situate in Mauza Dagog, Pargana Sapoli, Tehsil and District Shimla (Rural) and land bearing Khata Khatauni No. 50/100, Khasra No. 358, measuring 0-07-53 hectares situate in Mauza Dagog, Pargana Sapoli, Tehsil and District Shimla (Rural), till such time that the decretal dues of the plaintiff are paid by him. A decree sheet be drawn accordingly.