Interim Order 6

Order Details: COPY OF ORDER
Pdf Text: 41 CS SCJ 1172-23
RUBI ANAND W/O MR. ANAND KUMAR
Vs.
IIFL HOME FINANCE LTD THROUGH ITS AO
ORDER
1. Vide this order, I shall dispose off the application u/o 7
Rule 11 CPC filed by the plaintiff.
2. The relevant facts for the disposal of the present
application are stated herein below. It is stated by the plaintiff
that the plaintiff purchased property bearing No. 172, Block C
Pocket-IV, Sector -6, Rohini, Delhi ad measuring 31.69 sq mtrs
alongwith roof rights (hereinafter referred as suit property) by
registered sale deed dated 17.12.2018. That the plaintiff
alongwith with her husband availed a home loan facility of Rs.
21.5 Lakhs in respect of the suit property without roof rights and
due to non payment of the loan amount, public notice for
auctioning the secured assets was issued and proceedings under
SARFAESI Act were initiated. It is submitted that the roof rights
were never part of secured assets and the plaintiff is residing at
the terrace/roof of the suit property. That the defendant is
threatening the plaintiff to auction the suit property with roof
rights. Hence, the present suit.
3. By way of the present application, plaintiff is seeking
rejection of the plaint on the ground that the present suit is not
maintainable as the exclusive jurisdiction lies with Debts
Recovery Tribunal. The plaintiff has denied the contents of the
present application and has accordingly prayed that the same be
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dismissed.
4. Arguments heard. Record perused.
5. At the outset, it is important to observe that the grounds
for rejection of plaint very limited. It is a settled law that for the
purpose of decision of an application u/o VII Rule 11 CPC, the
Court should only consider the plaint and the documents
accompanying the plaint and nothing else. The averments of the
plaint, without addition or substraction, without any
compartmentalization or dissection, must show that the
provisions of Order VII Rule 11 CPC are attracted. The defence
of the defendants is not to be considered. While rejecting the
plaint on the ground that the plaint does not disclose a cause of
action the plaint must be taken to admit, for the sake of
arguments, that the allegations of the plaintiff are true in manner
and form. Reference may be made to the judgments titled Popat
and Kotecha Properties V/s. State Bank of India Staff
Association, 2005 (7) SCC 510; Inspiration Clothes v/s/ M/s.
Colby International Ltd., 88 (2000) DLT 769 (DB); Liverpool &
London S.P. & I Asson. Ltd. V/s. M.V. Sea Success 2004 (9)
SCC 512, Sopan Sukhdeo Sable V/s. Assistant Charity
Commissioner, 2004 (3) SCC 137.
6. In light of the same, coming back to the facts of the
present case, on a conjoint reading of the plaint and the
documents filed by the plaintiff, it is observed that as per the
documents of plaintiff, the plaintiff is the owner of property
bearing No. 172, Block C Pocket-IV, Sector -6, Rohini, Delhi ad
measuring 31.69 sq mtrs alongwith roof rights and the loan was
taken by the plaintiff only against the abovesaid property
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without roof rights. The documents relied upon the plaintiff do
not refer to the “roof rights/terrace” as part of the secured asset.
The same is reflected from the schedule 1 of the loan agreement
relied upon by the plaintiff where under the category “description
of the property”, roof rights do not find any mention. The same is
also reflected from schedule A of the loan agreement. The same
is also reflected from final sanction letter dated 27.05.2020 where
under the category “property address”, roof rights do not find any
mention. The same is also reflected from the document titled
“Most important terms and conditions” where under serial no. 3
i.e. security/collateral of loan and further under Clause i of serial
no. 3, roof rights do not find mention as part of the mortgage.
The same is also reflected from order dated 08.05.2023 of Ld.
CMM Court, relied upon by the plaintiff which clearly mentions
in para no. 2 that “according to the applicant, property bearing
no. C-172, Block -C, without roof right ad measuring land area
31.69 sq mtr i.e. 341 Sq. ft, third floor, pocket-IV, Sector-6,
Rohini Delhi-11085 are secured asset”. It is a settled law that at
the stage of adjudication of application u/o VII Rule 11 CPC,
only the plaint and the documents of the plaintiff can be looked
into. It is a matter of trial as to whether the roof rights was part of
the secured asset or not. The plaintiff has made sufficient
averments to disclose a cause of action in her favour. The present
suit pertains to the protection of possession of the plaintiff in the
roof rights of the property and the same did not form a part of the
secured asset as per documents of the plaintiff and therefore a
civil suit is maintainable and the present suit is accordingly, not
barred by SARFAESI Act. Thus, the submission of the defendant
does not find merit.
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7. Apropos the foregoing discussion, the application
under Order 7 Rule 11 is dismissed and disposed off.
The defendant is directed not to take any coercive steps
as regards the possession of the plaintiff in the roof rights of the
property.
Announced in open court.
(Shaina Goyal)
Civil Judge-N/W District
Rohini Courts-21.02.2024
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