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2009 Supreme(HP) 1246
HIMACHAL PRADESH HIGH COURT
HON’BLE MR. JUSTICE SANJAY KAROL, J.
STATE OF INDIA
Petitioner
VERSUS
SMT. REETA DEVI AND OTHERS
Respondents
CMPMO No.450 of 2009
Decided on 14-12-2009.
For the Petitioner:Mr.Arvind Sharma, Advocate.
For the Respondents:Mr.G.D.Verma, Sr. Advocate, with Mr.B.C.Verma, Advocate.
The Court emphasized that the relief of injunction is a discretionary remedy and that the plaintiffs must establish a strong prima facie case of infraction of legal rights and irreparable loss and injury. The Court also highlighted the need to consider the balance of convenience and the principles for grant of an interlocutory injunction during the pendency of legal proceedings.
Headnote:
Injunction - Property Dispute - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SRFAESI Act) - Section 14, 13, 17, 34
Fact of the Case:
Plaintiffs filed a suit for permanent prohibitory injunction against the Bank, claiming joint ownership of properties mortgaged to the Bank. Bank contended that the suit was filed in collusion with the mortgagors and that the jurisdiction of the Court to try the suit was specifically barred under the provisions of the SRFAESI Act.
Finding of the Court:
The Court found that the plaintiffs failed to establish a strong prima facie case for grant of injunction. The Court held that the plaintiffs' plea did not appear to be bonafide and that the balance of convenience lay in favor of the Bank. The Court set aside the lower court's orders and dismissed the application for injunction.
Issues: The main issue was whether the plaintiffs were entitled to a permanent prohibitory injunction against the Bank from taking forcible possession of the properties mortgaged to the Bank.
Ratio Decidendi: The Court applied the principles of law laid down by the Apex Court and found that the plaintiffs failed to make out a strong prima facie case in their favor. The Court also held that the passing of an interim order had resulted in grave miscarriage of justice and that the balance of convenience lay more in favor of the Bank.
Final Decision: The Court allowed the petition, set aside the lower court's orders, and dismissed the application under Order 39 Rules 1 and 2, CPC filed by the plaintiffs.
Sanjay Karol, J.- Plaintiffs Smt. Reeta Devi, Kumari Madhvi, Ms. Ragani, Ms. Payal, Shri Harsh, Smt. Pushpa Devi, Sh.Yog Raj Singh and Sh.Sulinder Singh (Respondents No.1 to 8 herein) filed a suit for permanent prohibitory injunction against the present petitioner (defendant No.1, for short known as the Bank) impleading Shri Joginder Singh, Shri Man Singh, Shri Sanjeev Kumar, Smt. Jarmo Devi, Smt. Anjna and Smt. Pushpa, as proforma defendants (proforma respondents No.2 to 7, respectively herein).
2. The plaintiffs averred that they alongwith proforma defendants are joint owners in possession of house constructed over land measuring 0-16-00 bighas (sixteen hundred sq. yards), bearing Khasra No. 528, Khata Khatoni No.150/157, situated at Mouza Banikhet Jarei, pargana Chuhan, Tehsil Dalhousie, District Chamba, H.P., to the extent of 256/320 shares and remaining 64 shares are owned and possessed by Shri Kulwant son of Shri Bachan Singh and further that plaintiffs No.1 to 5 and proforma defendant No.7 alongwith one Shri Manjeet Singh are also joint owners in possession of two storeyed house measuring 370.2 sq. yards, bearing Khasra No.151, Khata Khatoni No.31/34, situated at Mouza Kasba Banikhet, Pargana Chuhan, Tehsil Dalhousie, District Chamba, H.P.
3. For the purposes of securing loan for M/s Bizibi Infortech Pvt. Limited, Shri Kulwant Singh and Shri Manjeet Singh stood guarantors and mortgaged their share in the joint property/houses in favour of the Bank and since the mortgagors are not exclusive owners in possession of the said properties, hence any action taken by the Bank under the provisions of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SRFAESI Act) is illegal and as such be restrained from taking forcible possession and evicting the plaintiffs and the proforma defendants from these properties till such time the same are partitioned by metes and bounds.
4. The Bank filed its written statement, inter alia, taking a preliminary objection that the suit had been filed in collusion with the mortgagors; that the jurisdiction of the Court to try the suit was specifically barred under the provisions of the SRFAESI Act; in any event the suit was bad for non-joinder/mis joinder of necessary parties inasmuch as the mortgagors and the remaining co-sharers were not arrayed as parties to the suit. On merits, it was pleaded that property measuring 370.2 sq. yards, Khasra No.151, was in physical possession of one Shri Sushil Kumar, who had constructed his two storeyed house thereupon. The said house alongwith the land underneath was sold by him to Shri Manjeet Singh. Since the land was in joint ownership, the cosharers including Smt. Reeta Devi (plaintiff No.1) and Smt. Pushpa Devi (plaintiff No.6) executed sale deed dated 20.6.2000 admitting handing over the possession of the land and the house built thereupon exclusively to Shri Manjeet Singh. By way of an equitable mortgage, as security of loan financed to M/s Bizibi Infotech Pvt. Limited, Shri Manjeet Singh mortgaged the same with the Bank by depositing the title deed. Shri Manjeet Singh also signed an affidavit to the effect that he was the exclusive owner in possession of the same. With respect to other land comprising Khasra No. 528, to the extent of 384/1920 share which works out to be 00-03-04 bighas [three biswas and four biswansis only i.e. 144 sq. yards (approx.)], land was purchased by Shri Kulwant Singh from Smt. Anju Bala in terms of sale deed dated 22.4.1991, when possession thereof was also handed over to him. Thereafter Shri Kulwant Singh constructed his house on the land which was in his exclusive possession. Shri Kulwant Singh also created equitable mortgage by deposit of title deed with the Bank, as security for loan financed to M/s Bizibi Infotech Pvt. Ltd.
5. To the extent the share in the land mortgaged, the plaintiffs and the proforma defendants had
