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Sohit Gupta v. U.P. Financial Corporation & Others - WRIT - C No. 18870 of 2007  RD-AH 6656 (11 April 2007)
Civil Misc. Writ Petition No. 18870 of 2007
U.P. Financial Corporation & others
Hon.Shishir Kumar, J.
We have heard Smt. Rama Goel, learned counsel for the petitioner and Sri Gaurav Singh, Advocate, holding brief of Sri P.S.Baghel, counsel for the respondents.
The petitioner has approached this Court for quashing the recovery certificate dated 4.4.2007 (Annexure 1 to the writ petition).
The case set up by the petitioner in the present writ petition is that one Sri Satish Gupta has unauthorisedly mortgaged the property in question situated at 95/76 Shyamat Ganj, Bareilly with the respondent No.1. The petitioner is in possession of the aforesaid property and is enjoining the same as the absolute owner of the property. In the year 2002, for the first time, the petitioner came to know regarding the secret transaction of loan/mortgage having been taken by Satish Gupta from respondent No.1. When the officers of the respondents' financial corporation apprised the petitioner about the alleged transaction of loan over the house No.95/76 Shyamat Ganj, Bareilly, a Civil Suit for declaration as Suit No.79/2002 was filed by the petitioner impleading U.P. Financial Corporation and Satish Gupta as defendant for the following reliefs:-
"A- That it be declared that the plaintiff No.2 is the ultimate owner of the property in dispute and the plaintiff No.1 has only limited right to live in the disputed property, the boundaries of which are given below:-
Valued at Rs. 15,00,000/-
Fixed Court-fee paid :Rs.200/-
B- That it be declared that the Defendant no.3/1 had no right to mortgage, pledge or to create any charge on the disputed property with Defdts. Nos. 1 & 2 any other person as he is not the owner of the property in dispute and the mortgage if at all created by Defendant no.3/1 with Defendant nos. 1 & 2 is illegal. Boundaries of the disputed property situated at 95/76, Shyamat Ganj, Bareilly which has been shown with line Red in the map attached to the Plaint, are as under:-
East: property of Jagdish Gupta.
West: Godown of Raj Kumar.
North: Shop of others and Road.
South:Godown of Gulshan Kumar.
Valued at Rs.15,00,000/-
Fixed Court-fee paid: Rs.200/-"
Again a suit for decree of permanent injunction against U.P. Financial Corporation has also been filed by the petitioner as Suit No.196 of 2004 and in the said suit a written statement has been filed by the Financial Corporation denying the allegation made in the plaint. On an application made by the petitioner, injunction order has been passed which is still in operation. In the aforesaid Suit No.196 of 2004, the following reliefs were claimed:-
"(A) That by means of a decree for permanent injunction, the defendants, their agents and servants etc. be restrained from making any interference in the peaceful possession of the plaintiffs over the property no.95 situated at Bazar Shyamgunj, Bareilly, bounded as below;
(B) That costs of the suit be awarded to the plaintiffs;
( C) That any other relief or relief's to which the plaintiff may be found entitled to also awarded to the plaintiffs."
Now, the petitioner has approached this Court challenging the validity of the recovery, Annexure 1 to the writ petition.
After hearing counsel for the parties, as two suits have already been filed by the petitioner that is still pending and injunction order is operating in favour of the petitioner. In such situation, we are of the opinion, that writ petition filed by the petitioner is not maintainable as the petitioner is availing remedy by way of filing a suit which is still pending. The contention of the petitioner that in spite of the injunction order, the petitioner is going to be arrested in lieu of the recovery, as such, the arrest of the petitioner be stayed. The aforesaid contention of the petitioner has got no force as the writ petition itself is not maintainable and a person cannot avail two remedy at one time, as such, we are of the opinion, that the writ petition is not maintainable and is liable to be dismissed.
In view of the aforesaid fact, the writ petition is devoid of merits and is hereby dismissed.
No order as to costs.
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