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Andhra Pradesh High Court
Judges : D.S.R.VERMA, G.ROHINI
Branch Manager, State Bank of India, Ongole - Appellant
Versus
Chinigepalli Lathangi - Respondent
CMA.No.340/05
Decided On : 11-25-05
Advocates Appeared :
Mr.A. Satyanarayana, Mr.C. Ramachandra Raju
Securitization Act, Secs 34, 13 & 17 - Filing suit in civil Court expressly barred under Act - Civil Court has no jurisdiction to entertain not only a suit but also a ‘proceeding in respect of any matter’, which Debt Recovery Tribunal of Appellate Tribunal is empowered to deal with
When notification issued by Bank (defendants 5 & 6), exercising their jurisdiction u/Sec13(4) of Act, only course open to aggrieved persons, including borrowers, guarantors or any persons aggrieved thereof, is to proceed u/Sec17 of Act - Notwith-standing nature of suit, Act expressly prohibited civil Court from granting any order of injunction against secured creditors, when such secured creditors exercised jurisdiction under Sec34 of Act - Trial Court totally oblivious of existence and implications of provisions of Sec34 of Act
In this case, trial Court ought to have examined prayer made in Application on touch-stone of Or39, R1 CPC as also provisions of Sec34 of Act - Impugned order of lower Court, in injuncting defendants(appellants) from selling away plaintiffs’ share in suit property, set aside - Appeal, allowed
Based on the provided legal document, here are the key points:
( 1 ) HEARD both sides.
( 2 ) THE order, dated 16th November 2004, passed by the n Additional District judge (Fast Track Court), Ongole, in I. A. No. 2282 of 2003 in O. S. No. 40 of 2003, filed under Order 39 Rules 1 and 2 C. P. C. , is being assailed in this appeal.
( 3 ) DEFENDANTS 5 and 6 in the suit, who are respondents in the I. A. , are the appellants herein.
( 4 ) FOR convenience sake, in this judgment, parties will be referred to according to their array in the suit.
( 5 ) PLAINTIFFS filed the suit for partition of suit schedule property into 16 shares and to put them in separate possession of five such divided shares and also for mesne profits, as against defendants 1 to 4. It appears, plaintiffs also filed the present I. A. No. 2282 of 2003 under Order 39 Rules 1 and 2 C. P. C. seeking temporary injunction against defendants 5 and 6 restraining them from proceeding in any manner with their 5/ 16th share in the suit schedule property pending disposal of the suit.
( 6 ) ACCORDING to the plaintiffs, the cause of action for filing the present suit was that defendants 1 to 4 did business incurring heavy debts without any benefit to the joint family and since they are also the members of the said Hindu Joint Family they sought for partition and separate possession of their respective shares from out of the joint family property.
( 7 ) IT is not out of place to mention at this juncture that defendants 2 to 4 are the sons of the first defendant, and the plaintiffs are the children of D. 2 to D. 4 and grandchildren of D. 1.
( 8 ) THE case of the plaintiffs is that they came to know that D. 1 to D. 4 were contemplating to contract additional debts burdening the plaintiffs without any use or purpose to the Hindu joint family. Plaintiffs alleged that D. 1 to D. 4 indebted to D. 5 and d. 6 (State Bank of India, Commercial branch, Ongole. and State Bank of India, main Branch, Ongole, respectively) and since the debts incurred by D. 1 to D. 4 are not for the benefit of the Hindu Joint Family, much less to the benefit of the plaintiffs, the said debts incurred by D. 1 to D. 4 are not binding on the plaintiffs. Hence, plaintiffs filed the suit for partition and separate possession of their share and for other reliefs.
( 9 ) THE case of the plaintiffs in i. A. No. 2282 of 2003, filed under Order 39 rules 1 and 2 C. P. C. , also appears to be the same as that of the plaint averments. But, according to the plaintiffs, the cause of action for filling I. A. No. 2282 of 2003 was that defendants 5 and 6, who are the bankers (two different branches of the State bank of India, Ongole) are proceeding against the properties of the Hindu Joint family, which were mortgaged to the Bank by D. 1 to D. 4. Hence, pending the suit for partition, in order to see that the suit schedule property is not disturbed and also in order to get their legal 5/16th share therein, the said I. A. No. 2282 of 2003 was filed.
( 10 ) THE Court below, considering the material placed before it, including the documents, and/dlso the other circumstances passed the impugned order ordering I. A. No. 2282 of 2003 injuncting defendants 5 and 6 (appellants-herein) from selling away the shares of the plaintiffs in the suit schedule property in order to discharge the debts due to defendants 5 and 6.
( 11 ) CHALLENGING the said order passed by the Court below, defendants 5 and 6 in the suit filed the present appeal.
( 12 ) HAVING heard the learned Counsel appearing for defendants 5 and 6 (appellants herein) as well as the learned Counsel appearing for the plaintiffs (respondents herein), we have perused the impugned order passed by the Court below as also the other material placed on record.
( 13 ) FROM the impugned order, it could be seen that the suit and I. A. No. 2282 of 2003 were filed in the year 2003 and the impugned Order was passed on 16th november, 2004. It could be further seen from the impugned order that defendants 1 to 4 were set ex parte (probably
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