IMPORTANT POINT
No injunction shall be granted by any Court or other authority in respect of any action taken or to be taken under SARFAESI Act or DRT Act.

S.K. Seth, J.—This order shall also govern the disposal of W.P. No. 7400 of 2016, as the material and relevant facts and issues involved in both cases are common.

2. Petitioner is the auction purchaser of immovable property situated in Patwari Halka 57, R.I. Circle Khamariya, Village Ghana, District Jabalpur.

3. Dinesh Kumar Thakur (Respondent.2 herein) took a housing loan from Cent Bank Home Finance Ltd (respondent No. 3 and 4 herein) against collateral security of said immovable property. These facts are no longer in dispute.

4. Respondent No.2 defaulted in repayment of loan therefore the loan account was classified as NPA and respondent 3 and 4 took action under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 (herein after referred to as the SARFAESI Act for short) for recovery of outstanding dues amounting to Rs. 4,42,192 with interest and costs within sixty days from the date of the notice. Respondent No.2 did not make the default good, therefore secured creditor i.e. respondent No. 3 and 4 moved to the District Magistrate/Collector Jabalpur under Section 13 of the Act of 2002. On 16.3.2011 the District Magistrate ordered delivery of possession of the secured asset.(Subject matter of W.P. No.7400/16).

5. After the said order was passed by the District Magistrate, respondent No.1 swung into action by filing an objection before the D.M. that the actual physical possession cannot be given without evicting him (Res.No.1) in accordance with the law in view of the temporary injunction granted in his favour by the Civil Court. District Magistrate over ruled the objection as per order dated 13.7.2011 and thereafter the property was put to public auction. Petitioner was a successful bidder and property was sold to her and after documentation secured creditor handed over the property to the petitioner. Thus, she became absolute owner thereof.

6. Respondent No. 1 who is also an advocate, instead of challenging the orders of the District Magistrate under Section 17 of the SARFAESI Act by way of an appeal before the Debt Recovery Tribunal Jabalpur, amended the plaint to seek a mandatory injunction for delivery of possession of the property. He also sought a temporary mandatory injunction claiming to be put back in possession of property.

7. Trial Court rejected the prayer for a temporary injunction holding that respondent No.1 could not establish that he was in lawful possession. In the appeal, however, the IInd Additional Judge Jabalpur vide order dated 17.11.2015 allowed the appeal and directed delivery of possession to respondent No. 1. It is significant to note that respondent no.1 in chasing teasing illusion succeeded in creating smoke screen that the IInd Additional Judge Jabalpur completely shut its eyes not only to the fact that petitioner was not party to the suit but also that respondent No. 1 had not resorted to efficacious alternative statutory remedy and ignoring the Bar created under section 34 of the SARFAFESI Act passed the order dated 17.11.2015 in execution whereof trial Court issued warrant of possession and on 8.2.2015 ordered Superindent of Police to provide police aid to obtain possession from the petitioner, a bona fide purchaser of secured asset in public aution for valuable consideration. This led to the filing of the present petition.

8. Not satisfied with above, respondent No. 1 filed another suit (CS No.280A/15) seeking a declaration that the order passed by District Magistrate on 16.3.2011 was null and viod. Once again, behind the back of petitioner, learned VIIth Civil Judge Class without considering the relevant law that such a suit was not maintable, decreed the suit. Hence the second petition (W.P. No.7400/16).

9. Learned Counsel for the petitioner submitted that the respondent No.1 obtained orders behind her without affording an opportunity to put forward her case that she is a bona fide purchaser for valuable consideration