The main legal point established in the judgment is that the civil court cannot grant temporary injunction restraining the secured creditor from taking measures under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and the remedy for aggrieved parties lies under the provisions of the Act.

Judgment

R. DASH, J.

Being aggrieved by the order dated 4.1.2014 passed by the learned Senior Civil Judge, 1st Court, Cuttack in I.A. No.608 of 2013 arising out of C.S.(I) No.685 of 2013 rejecting the application under Order 39 Rule 1 and 2 C.P.C., the Plaintiff before the learned lower court has preferred this appeal.

2. The Respondent herein is the sole opposite party in the I.A. and arrayed as D.14 in the suit. The appellant has filed the suit praying, inter alia, for partition of the suit schedule property and a declaration that the equitable Mortgage Deed dated 29.3.2008 created in respect of the suit schedule land by her deceased father Tusarkanti Kanungo in favour of the Respondent-Bank is illegal, fraudulent and obtained by misrepresentation. It is pleaded that the common ancestor of Plaintiff-appellant and Defendant Nos.1 to 12, namely, Sachidananda Kanungo had acquired the suit property out of his own earning as well as from the income derived from his ancestral property. He died leaving behind the Plaintiff and D.1 to 12 as his heirs. Sachidananda had three daughters and one son who is father of the Plaintiff and D.2 and 3 and husband of D.1. After the death of his three sisters he, conniving with his eldest son (D.2) to obtain loan from the Respondent-Bank in order to carry on a partnership business in readymade garment in the name and style M/s. SATISFACTION (D.13) with one Naliniprava Das of Friends Colony, Cuttack, created equitable mortgage in respect of the suit schedule property behind the back of the other heirs of the common ancestor and obtained a loan of Rs.22.50 lakhs. When they failed to repay the loan in terms of the loan agreement, the Bank declared it as NPA and issued Demand Notice recalling the loan granted in favour of D.13 for which the Plaintiff’s father was shown to be the guarantor and then proceeded under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the Act). The partners of D.13 approached this Court in W.P.(C) No.11446 of 2013 and have obtained an interim order on 17.6.2013 directing not to take any coercive measure against D.13 and the matter is still pending for final disposal. Apprehending that the Bank would take symbolic possession over the suit schedule premises to put it into public auction under the Act, the Plaintiff filed the suit.

3. In the suit it is contended, inter alia, that the security interest created by the equitable mortgage in respect of the suit property which is joint family homestead cannot bind the Plaintiff and D.1 to 12 except Defendant No.2. Therefore, the Bank has no authority under law to proceed against the shares of plaintiff, D.1, and D.3 to 12 in the suit property.

4. The Respondent-Bank filed objection in the I.A. contending, inter alia, that the suit as well as the application for interim injunction is not maintainable in view of the bar created under the provisions of the Act. It is also contended that the property mortgaged by Tusarkanti Kanungo to secure the loan sanctioned in favour of D.13 Firm is his exclusive property. It is further stated in the objection that this Court having directed the Bank not to take any coercive action against D.13, the Respondent-Bank has stopped contemplating coercive action and for that the Plaintiff has no cause of action to pray for temporary injunction against the Bank.

5. Learned lower Court has dismissed the I.A. on the ground that in view of the bar created under Section 34 of the Act the Respondent-Plaintiff cannot be said to have got a good prima facie case against the Bank.

6. Despite of appearance of the Respondent in response to notice issued in this First Appeal none appeared to participate in the hearing on the appeal memo. Learned counsel for the appellant has cited a number of decisions to support his contention that a suit for partition is not barred under the provisions of the Act and that the learned lower court without going into the mer