The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 145 of 2023 Manju Jajodia Petitioner Mr. Ramakanta Mohanty, Senior Advocate being assisted by Mr. Bibekananda Bhuyan, Advocate …. -versus- M/s Bajaj Finance Ltd., Bhubaneswar and others …. Opp. Parties Mr. Ramachandra Panigrahy, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 17.02.2023 3. 1. This matter is taken up through Hybrid mode. 2. Memo of Appearance of Mr. Ramakanta Mohanty, learned Senior Advocate filed in Court is taken on record. 3. Order dated 19th January, 2023 (Annexure-8) passed by learned 3rd Additional District Judge, Cuttack in RFA No.439 of 2022, is under challenge in this CMP, whereby a direction has been sought for to Opposite Party Nos.1 and 2 to discover on oath the entire loan documents including the creation of equitable mortgage by deposit of title of deeds along with the legal opinion and valuation report in respect of the loan amount. 4. Mr. Mohanty, learned Senior Advocate appearing on behalf of the Petitioner submits that the suit has been filed with prayer to declare that the Defendants/Opposite Parties by playing fraud on the Court, have manipulated the documents for creating the mortgage in respect of the suit schedule property and to declare that the Defendants having played fraud before the Court of learned Chief Judicial Magistrate (CJM), Cuttack in Misc. Case No.6 of 2022 obtained the order dated 28th February, Page 1 of 4 // 2 // 2022 and for permanent, prohibitory and mandatory injunction as well as for damage. 5. It is submitted that the sale deed basing on which, Defendant No.3 obtained financial assistance, has already been declared void in a properly constituted suit. In respect of the same, Defendant Nos.1 and 2-Financer, without making proper enquiry advanced the loan. By plying fraud on the Court, the Defendant Nos.1 and 2 obtained an order from the Court of learned Chief Judicial Magistrate (CJM), Cuttack in Misc. Case No.6 of 2022. Thus, provision of Section 34 of the SARFAESI Act does not stand as a bar to maintain the suit against the Defendants. However, Defendant Nos.1 and 2 on their appearance filed a petition under Order VII Rule 11 CPC and the plaint was rejected being barred by law, i.e., in view of the specific bar under Section 34 of the SARFAESI Act. Assailing the same, the Petitioner filed RFA No.439 of 2022, which is pending for consideration. 5.1 In course of hearing of the proceedings of the appeal, the Appellant/Petitioner filed certified copy of the sale deed which discloses that the land in question is ‘Jalasaya’ in nature. On the other hand, Respondent Nos.1 and 2/Opposite Party Nos.1 and 2 filed certified copy of the said sale deed wherein kisam of the land has been described to be ‘Homestead’. In order to remove the discrepancy, an application was filed to direct the Registering Authority, Cuttack to produce the aforesaid document. The said application was rejected. While rejecting such application, learned appellate Court made certain observations with regard to maintainability of the suit itself, which is prejudicial to the interest of the Appellant /Petitioner, Page 2 of 4 // 3 // more particularly when the appeal is awaiting disposal. In that view of the matter, Mr. Mohanty, learned Senior Advocate submits that the impugned order is liable to be set aside and the Registering Officer, Cuttack should be directed to produce the aforesaid document. 6. Mr. Panigrahy, learned counsel appearing for Opposite Party Nos. 1 and 2-Financer objecting to the above, contends that the suit is not maintainable in view of the bar under Section 34 of the SARFASEI Act. Learned trial Court, taking into consideration the averments made in the pleadings of the plaint, rejected it stating that the suit is not maintainable. Since the Court, while considering an application under Order VII Rule 11 CPC, is required to consider the pleadings of the plaint only, no error has been committed in refusing the prayer of the Petitioner in the aforesaid petition. It is his submission that the observation of the appellate Court at the concluding paragraph of the impugned order is the consequence of the discussion made in the impugned order. It is, in fact, due to the petition filed by the Petitioner/Appellant, the occasion to make such observations arose. As such, the appellate Court has committed no error in passing the impugned order. 7. Considering the rival contentions of the parties and on perusal of record, it appears that during pendency of the appeal, the petition to direct the Sub-Registrar, Cuttack to call for the aforesaid register, was filed. It is not in dispute that the appeal is filed against an order rejecting the plaint under Order VII Rule 11 (d) CPC. Since the said order amounts to a decree under Section 2(2) of CPC, the aforesaid appeal has been filed. As the appeal is a continuation of the suit, the Court, while adjudicating Page 3 of 4 // 4 // the appeal, is required to consider the pleadings made in the plaint only. No other material, whatsoever, for consideration of the appeal, can be taken into consideration. As such, learned appellate Court has committed no error in refusing the prayer of the Petitioner to direct the Registering Officer, Cuttack to produce the Book No.1, Vol.257 and Page-123 to 142 containing the registered sale deed No.4260 dated 14th August, 2006. But the Court, while adjudicating the matter, should have refrained itself from making any observation with regard to maintainability of the suit itself, which is the subject matter of adjudication in the appeal. By observing so, learned appellate Court has apparently pre-judged the issue. Hence, the observation with regard to maintainability of the suit is set aside. 8. Accordingly, the CMP is disposed of with a direction that learned appellate Court should make an endeavour for early disposal of the appeal in accordance with law, giving opportunity of hearing to the parties concerned, on its own merit. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4