Hi
you made agreement for the period of 33 months ,
which you completed in that property,
now your time limit have vanished then what is your purpose to file suits?
make clear please
Maintainability of suit and as interim order
Sir Details :- 1. Mr X took Flat on Leave License for 33 Months on 4-4-14 from Owner & paid Deposit 6.0 Lacs and executed “L/L Agreement” & registered. it and since then he has possession of Flat 2. In January 2015, one Bank sent recovery people and threatened to Mr X to Vacate Flat and on 16-2-2015 Bank sent letter asking to submit documentary details. 3. Mr X sent details of L/L and deposit to Bank and to Police, too 4. Initially Owner had not revealed to Mr X about Loan 5 Mr X issued one-month notice to Owner to return his Deposit but all attempts went in vein 6. Mr X learnt from reliable sources that Owner was selling Flat without returning Deposit 7 So, Mr X filed Civil Suit (RCS) before Civil Judge for suit & declaration 8 In suit it is stated that cause of action 1st time arose in Jan.2015 when People of Bank threatened him and it continued day-to-day 9 Notice of Suit was served to Bank on 1-3-2016 10 But on 18-3-2016, Bank filed S.A. u/s.14 of SARFEASI Act before Dist. Magistrate and concealed all above Facts and thus obtained Order on 7-12-2016 to take possession of Flat with help of Police 11 But Bank waited till 5-1-2017 (expiry of L/L) and pasted Notice on 25-1-17 issued by Tahasiladar on Door of Flat to take possession of Flat with help of Police. 12 So, Mr X rushed to Civil Judge and filed application for ad-interim relief restraining Bank to take forceful possession 13 Civil Judge issued notice to Bank which was served to Bank but Bank did not appear 14 On 31-3-2017, Civil Judge granted Order of Status Quo 15 Then Bank appeared before Civil Judge and filed application under order 9A of CPC which was strongly objected by Mr X because Bank had ill intention and hence at behest of Owner, they did not appear before Civil Judge for 17 Months till 5-1-2017 and only after expiry of L/L they appeared 16 After hearing Civil Judge framed issue (a) Whether suit is maintainable for want of Jurisdiction ? (b) What Order 17 Civil Judge passed Final Order on 14-9-2017 as under :- “suit is not maintainable because though Mr X filed suit in 2016 but it was filed on basis L/L whose period expired on 5.1.2017 and so cause of action of suit stands extinguished on 5.1.2017 and suit became infructuous and not maintainable for lapse of cause of action and status quo order stands revoked 18 I got certified copy today but Bank pasted Notice on Flat that they will take possession on [deleted]. Query 1) Guide "Can such Order is maintainable u/o 9A of CPC at this stage" 2) Guide “is it correct that cause of action is limited to period of L/L and is extinguished in pending suit without re-payment of Deposit”? 3) Mr X is filling Appeal in Dist. Court on 8-11-17 with Prayers to set aside impugned Order with directions to Civil Judge and for ad-interim Relief restraining Bank Guide How Bank can be restrained emergently HARIOM
Asked 8 years ago in Civil Law
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8 Answers
Hello,
Such order is not maintainable. the reasoning given by the court is not at par with the legal principles.
The cause of action is not limited, the cause of action accrued when the L/L was in subsistence and hence the cause of action does not end with the expiry of the L/L. The rights have to be settled by the court.
MR. X should file an appeal immediately.
Regards
HARIOM
Sir bank has got it's order before the DRT court there fore you should try to challenge the order before the same court.
Respected Sir, Can you give some citation of SC or reference of some Law or Act because simply saying will not serve purpose AND further I need guidance on last line which is as "Guide How Bank can be restrained emergently because they pasted notice on door of Flat to take possession of Flat on [deleted] as mentioned in point no.18 in my original question. Regard HARIOM
Asked 8 years ago
Any action taken by the Bank under SARFAESI Act cannot be challenged in any court, other than DRT. The SARFAESI Act bars the jurisdiction of Civil Courts (See Section 34 of the SARFAESI Act). If Mr. X is desirous of staying the hands of the Bank, he needs to approach the DRT (See Section 17 of the SARFAESI Act).
As regards the Civli Suit, if Mr. X prayed for return of his deposit, then include the ground in the Appeal that though the tenancy had expired, the issue of return of deposit was still pending, and ask for a charge over the proceeds of the Flat. This relief can also be prayed for before the DRT.
1) there is no infirmity in the order
2) your leave and licence period has expired and suit has become infructous
3)in the event flat owner fails to refund your security deposit you have to file summary suit to recover your SD with interest
4) your chances of success in appeal are bleak
if your security deposit is not returned on expiry of leave and licence agreement your remedy is against flat owner and no the bank
2) bank can obtain possession of flat as per court orders on expiry of leave and licence agreement
3) you cannot retain possession of flat till your SD is repaid
1. The bank has entered appearance before court and filed this application at a time when the Land L period has actually expired and the suit became infructuous.
The application is no doubt maintainable because it questions the jurisdictional point of the court when the leave and licence has actually expired
2. Repayment of the deposit amount shall be made by the owner and for that he should have been impleaded as a party to the suit.
The leave and licence if expired then the suit may not be extended beyond that neither a judgment can be passed beyond the date of expiration of the agreement which may make the execution of the same not possible.
For refund of deposit you may have to pay the court fee and made a separate prayer for that, if not then it will not be an automatic process.
3. The appeal may not be maintainable, but try costs nothing, hence proceed.
Can you give some citation of SC or reference of some Law or Act because simply saying will not serve purpose AND further I need guidance on last line which is as "Guide How Bank can be restrained emergently because they pasted notice on door of Flat to take possession of Flat on [deleted] as mentioned in point no.18 in my original question.
Since you are a tenant in the property and not a owner, your claim will be restricted to the period of tenancy alone, you cannot travel beyond the period of the L&L agreement, hence no citation may be of any use to you, however you can contact your advocate for this purpose.