The court ruled that an injunction cannot be granted if an equally effective legal remedy exists, especially under statutory provisions, prioritizing access to the Debts Recovery Tribunal over injunction claims.

JUDGMENT :

(Kshitij Shailendra, J.)

1. Heard Shri H.K. Asthana, learned counsel for the plaintiff-appellant and Shri Habib Ahmad, learned counsel for the respondent No.1-Bank.

2. Counter and rejoinder affidavits in between the appellant and respondent No.1 have been exchanged. In view of the order proposed to be passed, it is not necessary to issue notice to the remaining respondents, particularly when the matter is running in the list of fresh cases for the last one year.

3. The instant appeal under Order XLIII Rule 1(r) of CIVIL PROCEDURE CODE , 1908 assails the validity of order dated 19.10.2023 whereby the learned Civil Judge, (Senior Division), Gorakhpur has rejected the plaintiff's injunction application in Original Suit No.186 of 2022 (Smt. Omika Devi v. Indian Bank (Allahabad Bank) and others).

4. Assailing the order impugned, learned counsel for the appellant submits that though the appellant is having 1/3rd share in an immovable property, the respondent Nos. 2 and 3 i.e. real brother and mother of the appellant have created mortgage in favour of respondent No.1-Bank and availed financial facility.

5. The contention is that seeking partition of the property, Original Suit No.2175 of 2023 ( Smt. Omika Devi v. Om Kailash Pati and Another ) was filed by the appellant which is pending before the civil court. It is contended that when the Bank proceeded to auction the mortgaged property, plaintiff instituted Original Suit No.186 of 2022 claiming a decree for injunction only to the extent that without effecting partition between the co-sharers of the property, the Bank be restrained from taking possession over the property, from auctioning the same and from causing any interference in possession and user of the property. By referring to the definitions of "secured assets” and “security interest”, respectively contained in Section 2 (zc) and (zf) read with Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act of 2002’), learned counsel for the appellant vehemently argued that, in the instant case, the appellant cannot be relegated to avail remedy under the Act of 2002 and, inasmuch as, the Debts Recovery Tribunal is not competent to determine the respective shares of co-sharers of immovable property. He, therefore, submits that until and unless a decree of partition is drawn in Original Suit No.2175 of 2023, the appellant is entitled for injunction.

6. Per contra, Shri Habib Ahmad, learned counsel for the respondent-Bank submits that Bank has already proceeded with auction proceedings pursuant to notices issued under Section 13 (2) and 13(4) of the Act and in view of Section 17 of the Act of 2002, any person (including borrower), aggrieved by any of the measures referred to in Section 13 (4), may make an application before Debts Recovery Tribunal agitating his grievance. He places reliance upon judgment of the Hon'ble Supreme Court in Jagdish Singh v. Heeralal and others , (2014) 1 SCC 479 . The relevant ‘paragraphs 17 and 18’ of the same are reproduced as under :-

"17. The expression ‘any person’ used in Section 17 is of wide import and takes within its fold not only the borrower but also the guarantor or any other person who may be affected by action taken under Section 13(4) of the Securitisation Act. Reference may be made to the Judgment of this Court in Union Bank of India v. Satyavati Tondon and others, (2010) 8 SCC 110.

18. Therefore, the expression ‘any person’ referred to in Section 17 would take in the plaintiffs in the suit as well. Therefore, irrespective of the question whether the civil suit is maintainable or not, under