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IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 05TH DAY OF OCTOBER, 2015

PRESENT

THE HON'BLE Mr. JUSTICE N.KUMAR

AND

THE HON'BLE Mr. JUSTICE G. NARENDAR

REGULAR FIRST APPEAL NO.1190/2015

BETWEEN :

SHRI. VINEET SABHARWAL SON OF LATE K.S. SABHARWAL AGED ABOUT 49 YEARS RESIDING AT NO.198, 4 TH CROSS, 2 ND MAIN DEFENCE COLONY, -560 038. ...APPELLANT (BY SMT. UDITA RAMESH, ADV.,)

AND :

1. KARNATAKA STATE INDUSTRIAL INVESTMENT AND DEVELOPMENT CORPORATION LIMITED HAVING ITS REGISTERED OFFICE AT NO.36, MSIL HOUSE, BANGALORE-560 052 REPRESENTED BY ITS GENERAL MANAGER.

2. SHRI. PUNEET SABHARWAL SON OF LATE K.S. SABHARWAL AGED ABOUT 45 YEARS RESIDING AT NO.198, 4 TH CROSS, 2 ND MAIN DEFENCE COLONY, INDIRANAGAR

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BANGALORE-560 038 AND PRESENTLY TEMPORARILY ABROAD.

3. VEENA SABHARWAL W/O LATE. K.S. SABHARWAL MAJOR, NO.38, ROAD BANGALORE-560 008

4. CANARA BANK INDIRANAGAR BRANCH BANGALORE-560 038 REPRESENTED BY ITS SENIOR MANAGER

5. MRS. AMBIKA SABHARWAL (MRS. AMBIKA BHARADWAJ) WIFE OF SRI. PRAVEEN BHARADWAJ AGED ABOUT 41 YEARS RESIDING AT 372, 13 TH MAIN RMV EXTENSION, BANGALORE AND PRESENTLY TEMPORARILY ABROAD. ...RESPONDENTS (BY SRI. T.P. VIVEKANANDA, ADV., FOR SRI. P.S. MANJUNATH, ADV., FOR R1; NOTICE TO R2 TO R5 DISPENSED WITH VIDE ORDER DATED 10.09.2015)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41 OF CPC., AGAINST THE ORDER DATED 06.12.2013 PASSED IN EX.NO.1044/2002 ON THE FILE OF THE XIX ADDL. CITY CIVIL & SESSIONS JUDGE AT BANGALORE CITY (CCH-18), REJECTING THE APPLICATION FILED U/O 21 RULE 58, 99 AND 100 R/W SECTION 151 OF CPC., DATED 16.01.2004.

THIS APPEAL COMING ON FOR ORDERS THIS DAY, N.KUMAR, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

This appeal is preferred by objector No.1 challenging the order passed by the Trial Court rejecting the application filed under Order 21 Rule 58, 99 and 100 of CPC.

2. The subject matter of the proceedings is property bearing No.198, Binnamangala Layout, Defence Officers

Colony, H.A.L. II Stage, Bangalore, totally measuring 7000 sq. ft. together with all the buildings and structures standing thereon, which is hereinafter referred to as ‘schedule property’. The schedule property was purchased under the registered sale deed dated 10.11.1980 in the name of Smt. Veena Sabharwal and her husband K.S. Sabharwal. Objectors are the children. Smt. Veena

Sabharwal had availed a loan in the year 1989 and an additional term loan of Rs.17.50 lakhs on 16.04.1997. When the said amount was not paid, respondent No.1 initiated proceedings for recovery of the said amount under the provisions of State

Finance Corporation Act in Misc.No.604/1998. The 6th

Additional City Civil Judge, Bangalore passed an order on

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10.04.2001 and issued a recovery certificate in favour of decree holder/K.S.I.I.D.C. to recover Rs.2,74,14,205.66 ps. with interest at 18% per annum compounded at quarterly rests from

21.09.1997. Execution No.1044/2002 was initiated to execute said decree. It is then objectors filed the application requesting the Court to raise attachment and not to sell the property. The said application was opposed. The case was posted for enquiry.

In the first round, the application came to be dismissed summarily. Same was challenged before this Court in RFA

No.1201/2005 where the said order was set aside and the matter was remanded back to the Trial Court for an enquiry. After such remand, the objectors did not step into the witness box. They did not lead any evidence in respect of their claim. The Trial

Court took note of the fact that the objectors filed

O.S.No.4167/1997 in the year 1997 for partition and separate possession against their parents and the said suit was compromised on 16.01.1998.

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3. The case of the objectors was that schedule property was a joint family property and therefore their share in the property cannot be brought to sale. For that, the Trial Court has observed that in the year 1980, all the objectors were minors and no evidence was produced to demonstrate the existence of the joint family fund, out of which this property was purchased and therefore aforesaid partition decree being collusive one, do not confer right on these objectors, therefore dismissed it.

Aggrieved by the said order, present appeal is filed.

4. When an opportunity was given by this Court to adduce evidence in respect of their claim in the enquiry, when the objectors did not make use of the said opportunity, they cannot have any grievance against the impugned order passed.

Even otherwise, the fact speaks that this property stands in the name of husband and wife. Objectors are their children. On the date of availing of money and on the date of purchase of the property, they are minors. There is nothing to show that there exists joint family fund, out of which the property was

6 purchased. The amount is borrowed from KSIIDC, a public money and admittedly the parents have committed fault. It is only to save the property the suit for partition is filed, decree is obtained and the present application is filed to stall further proceedings of the execution of the lawful order passed in that context. In that view of the matter, we do not see any merit in the appeal. The appeal is dismissed.

In view of dismissal of the appeal, I.A.Nos.1/2015 and

2/2015 do not survive for consideration and same stand dismissed.

Sd/- JUDGE

Sd/- JUDGE

PMR