RAKESH KUMAR & ANR vs BANK OF MAHARASHTRA

2024-01-05 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd November, 2023
Pronounced on:05th January, 2024

+ CS(OS) 295/2018 & I.A. 7999/2018

RAKESH KUMAR & ANR. ….. Plaintiffs
Through: Mr. Bharat Gupta, Advocate.

versus

BANK OF MAHARASHTRA ….. Defendant
Through: Mr. Sunil Shukla, Advocate.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 2210/2020 (u/O VII Rule 11 r/w Section 151 of CPC, 1908)

1. The present Application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC, 1908) has been filed on behalf of the applicant/defendant seeking rejection of the present Suit.
2. It is submitted in the application that the non-applicants/plaintiffs had earlier filed the Civil Suit bearing No. CS (OS) 1727/2012 (new Suit No. 55/2016) (hereinafter referred to as earlier suit) titled Rakesh Kumar and Anr. vs. Saroj Marwah and Anr. before this Court on 30.05.2012 seeking Declaration of Ownership, Mandatory Injunction etc. in respect of half portion admeasuring 288.87 sq. yards of property bearing No. 51/4-B, Desh Gupta Road, Karol Bagh, Delhi-110005 (which is the Suit Property). The said Suit was subsequently transferred to the District Judge, Tis Hazari, New Delhi on account of change of pecuniary jurisdiction vide Notification No. 27187/DHC/Orgl. Dated 24.11.2015. The issues had been framed in the said Suit vide Order dated 21.01.2015 and the Suit is pending at the stage of evidence of the parties.
3. It is further submitted that during the pendency of the earlier suit, plaintiffs have filed the present Suit, wherein he is seeking the same reliefs.
4. It is asserted that the plaintiffs, by way of clever drafting, cannot make an endeavour to create a new cause of action. Therefore, the present Suit is liable to be rejected on the following grounds:
(i) the cause of action in both the Plaints arise from the same transaction i.e., the purchase of the suit property by the plaintiffs vide Sale Deed dated 19.05.2009.
(ii) That the decision in respect of the possession is premature. The other issues viz-a-viz., mesne profits/TDS etc. had been given up without obtaining the leave of the Court and thus, are barred under Order II Rule 2 of CPC, 1908.
5. Therefore, it is submitted that the present Suit is liable to be rejected.
6. The plaintiffs in their Reply to the present application, have asserted that the present application is an abuse of process of law and is an endeavour of the applicant/defendant to delay the proceedings and to somehow remain in illegal occupation of the suit property without having to pay any rental despite the termination of the tenancy of the applicant/defendant.
7. It is further submitted that the answering defendants in the earlier Suit, had asserted that the rent qua the suit property was being adjusted by the defendant/Bank towards the payment of outstanding Term Loan Account of Ms. Saroj Marwah, (defendant No. 1 in the erstwhile Suit), who was the owner of the suit property and there was no assignment by Ms. Saroj Marwah to adjust the rent accruing from the suit property against any other dues that may be found due from her.
8. It is claimed that the plaintiffs have already admitted that the rental from the suit property has been adjusted by the applicant/defendant-Bank towards the Term Loan Account of Ms. Saroj Marwah and after the said Term Loan, the suit property is free from mortgage qua said loan. After the satisfaction of the Term Loan of Ms. Saroj Marwah, the applicant/defendant-Bank is obliged to pay arrears and also to pay the future rent in terms of the Lease Deed dated 19.04.2004 that was executed by it with Ms. Saroj Marwah, who was the erstwhile owner of the suit property.
9. After the Term Loan has been adjusted towards the rental due upto 19.12.2014, the plaintiffs are entitled to recover the rent.
10. The present Suit is only to claim possession from the defendant which is a tenant and for the arrears of rent found due after 2014.
11. It is, therefore, submitted that the cause of action in the present Suit is different from the earlier Suit and the present application is without merit and is liable to be dismissed.
12. Submissions heard.
13. The plaintiffs had purchased the suit property vide Sale Deed dated 19.05.2009. Admittedly, defendant-Bank was a tenant in the suit property by virtue of Lease Deed dated 19.04.2004 executed by Ms. Saroj Marwah, the erstwhile owner in favour of the applicant/defendant-Bank.
14. The plaintiffs have asserted in their Suit that they were not aware that Ms. Saroj Marwah, the erstwhile owner, had mortgaged the suit property to the applicant/defendant-Bank and the applicant/defendant-Bank had initiated proceedings for recovery of the rent from the defendant Bank which is admittedly a tenant the suit property. The plaintiffs, on becoming aware that the suit property had been mortgaged for taking of loan by Ms. Saroj Marwah, the erstwhile owner, the plaintiff filed the earlier Suit against Ms. Saroj Marwah and the Bank as defendants (which is now transferred to the District Court, Tis Hazari), wherein they claimed to be a bona fide purchaser of the suit property from Ms. Saroj Marwah, and sought the following reliefs:
a. Pass a decree of Declaration thereby declaring and- affirming the Plaintiffs to be the Lawful and absolute owner of the suit property bearing no.51/4-B, Desh Bandhu Gupta Road, Karol Bagh, Delhi-110005 admeasuring 288.27 Sq. Yds or 241.03-Sq. Mtrs.;
b. Pass a decree of Mandatory Injunction thereby restraining Defendants No.l and 2, their servants, agents and persons acting for and on behalf of Defendants . No.l- and 2, from alienating, selling, transferring, creating, conveying, offering for sale, or otherwise dealing in any manner with the suit property bearing no.51/4-B, Desh Bandhu Gupta Road, Karol Bagh, Delhi-110005 admeasuringn 288.27 Sq. Yds or 241.03 Sq. Mtrs.;
c. Pass a decree of Mandatory Injunction directing Defendant No.l to pay the debts of Defendant No.2;
d. Pass a decree of Mandatory Injunction directing Defendant No.2 to release and hand over the Original Title Deeds of suit property bearing no.51/4-B, Desh Bandhu Gupta Road,- Karol Bagh, Delhi-110005 admeasuring 288.27 Sq. Yds. or 241.03 Sq. Mtrs lor of the entire-property bearing no.51/4, Desh Bandhu Gupta Road, Karol Bagh, Delbji-l10005 admeasuring 576.53 Sq. Yds. to the Plaintiffs;
e. Pass a decree of Mandatory Injunction directing Defendant No.2 to render accounts for rent accrued with respect to the suit Property bearing no.51/4-B, Desh Bandhu Gupta Road, Karol Bagh, Delhi-110005 admeasuring 288.27 Sq. Yds. or 241.03 Sq. Mtrs. w.e.f. 19.05.2009;
f. Pass a decree of Mandatory Injunction directing Defendants to apply the principle of Marshalling by bringing the other six properties as detailed in para 3 (xxiii) at serial nos, (a) to (c) and (e) to (g) above to sale first except .the suit properly, and if the debt is not satisfied out of the other properties only then to proceed against the suit property;
g. An enquiry be made by this Honble Court into the damages suffered by the Plaintiffs and a decree for such amount as may be adjudged to be the loss may be passed in favour of the Plaintiffs and against the Defendant No.l and 2 jointly and severally, for which the Plaintiffs undertake to pay the Court Fees at the appropriate stage;
h. Award the Cost in favour of the Plaintiffs and against the Defendants;
i. Pass such other and further orders or directions in favour of the Plaintiffs and against the Defendants No, 1 and 2 as may be deemed fit and proper.
15. The Plaintiffs have subsequently filed the present suit against the Defendant Bank which is admittedly a tenant, for recovery of Possession and arrears of rent including interest till 18.06.2018. The plaintiff has asserted in the present suit that on purchase of the suit property, they had requested Ms. Saroj Marwah, the erstwhile owner, to write a letter of attornment to the defendant-Bank and direct it to pay the rent to the plaintiffs. It is further explained plaintiffs that the rent was earlier being apportioned by the defendant-Bank towards the Term Loan availed by Ms. Saroj Marwah, the then owner of the suit property and the same stands adjusted towards due rent payable upto December, 2014.
16. Once the amount due to Ms. Saroj Marwah has been satisfied towards her Term Loan, the non-applicants/plaintiffs, who are the owner of the suit property by virtue of a registered Sale Deed, are now entitled to not only possession, but also to recovery of rent till 18.06.2018 along with the pendente lite and future interest @18% per annum from 19.06.2018 till actual handing over of possession of the suit property.
17. It is, therefore, evident that the plaintiffs in the earlier Suit had essentially claimed reliefs against Ms. Saroj Marwah ( who was defendant No. 1/), the erstwhile owner of the suit property and the defendant No. 2/Bank, seeking a Declaration of they being the owners since the defendant-Bank herein was claiming its right to the suit property on account of secured loans given to Ms. Saroj Marwah, against the suit property. The Title Deed apparently that were handed over to the applicant/defendant-Bank by Ms. Saroj Marwah, erstwhile owner, were sought to be redeemed.
18. In the present Suit, however, since the Term Loan has been satisfied from the rent paid by the Bank, the non-applicants/plaintiffs have claimed not only to the possession of the suit property from the applicant/defendant-Bank herein, but also the arrears of rent and future rent, since the applicant/defendant-Bank is admittedly a tenant.
19. Accordingly, the cause of action in the earlier Suit was well essentially for Declaration of his Title and rendition of Accounts by the erstwhile owner while in the present Suit the possession and arrears of rent is sought from the defendant Bank. The cause of action is absolutely independent and, therefore, the present Suit is not barred by the filing of earlier Suit.
20. In view of above, there is no merit in the present application and the same is hereby dismissed.
CS(OS) 295/2018 & I.A. 7999/2018
21. List before the Joint Registrar for completion of pleadings, if any, and admission/denial of the documents on 15.02.2024.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 05, 2024
S.Sharma

CS(OS) 295/2018 Page 7 of 7