IMPORTANT POINT
Injunction cannot be granted as a pre-emptive measure to restrain DRT from exercising its powers conferred under SARFAESI Act.

JUDGMENT

On consent of learned counsel for the parties, the appeal and application are taken up together for disposal, in view of the identity of the subject-matter of adjudication involved in the two. By virtue of the impugned order dated may 7, 2022 passed in Title Suit No.804 of 2019, the Civil Judge (Senior Division), 2nd Court at Alipore, District – South 24-Parganas rejected the injunction application of the plaintiffs/appellants under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.

2. The plaintiffs/appellants filed a suit, inter alia¸ for declaration that the defendant/respondent no.1 does not have any right, title and interest in respect of the suit premises and could not have dealt with or created any mortgage or security interest in respect of the suit premises and for declaration that the declaration that the plaintiffs are absolute owners of the suit premises at 2, Dover Park, Police Station Ballygunj, Kollata-700 019 and for ancillary reliefs. The plinth of the plaint case was that although an agreement for sale of the suit premises was entered into by the borrower/owner that is respondent no.1, the same was not honoured and the possession of the property was not handed over to the Hindu Undivided Family (HUF) of the plaintiffs/petitioners. Accordingly, it is pleaded, the then members of the HUF, including the plaintiffs, had entered into actual physical possession, immediately prior to September, 1973 and were in adverse possession thereof.

3. Learned counsel for the appellants contends that, in a previous appeal preferred against an application for injunction under Section 151 of the Code of Civil Procedure, a Division Bench of this Court had remanded the matter back for decision on the main application for temporary injunction under Order XXXIX Rules 1 and 2 in the light of the observations of the Division Bench. However, it is argued, the trial Court did not adhere strictly to the observations made by the Division Bench in the said order dated April 25, 2022, passed in FMA 252 of 2022, by failing to take into consideration the citations and provisions of law, which the Trial Court was to take into consideration as per the Division Bench order, in proper perspective.

4. Learned counsel relies on a Division Bench judgment reported at 2017 (4) CHN (Cal) 410 [Kaaiser Oils Private Limited and others Vs. Allahabad Bank and others], for the proposition that, under certain circumstances, there is no bar for the Civil Court to decide a suit for declaration as well as permanent injunction.

5. Learned counsel next contends that although it was observed in a cursory manner in a subsequent Division Bench judgment reported at AIR 2018 Cal 8 [Delta International Limited and others Vs. Smt. Nupur Mitra and others], that Section 34 of the SARFAESI Act has two limbs, the said observations in respect of injunction were obiter dicta, since the second limb, concerning the grant of injunction, had never fallen for consideration before the said Division Bench.

6. Learned counsel further places reliance in (2004) 4 SCC 311 [Mardia Chemicals Ltd. and others Vs. Union of India and others], in support of the proposition that the jurisdiction of a Civil Court can be invoked to a limited extent in respect of matters outside the jurisdiction of the Debts Recovery Tribunals within the ambit of Section 13 of the SARFAESI Act.

7. One of such situations was where fraud has been alleged, as in the present case.

8. Learned counsel next places reliance on (2014) 1 SCCC 479 [Jagdish Singh vs. Heeralal and others] in support of the contention that the Civil Court has jurisdiction unless any “measure” was taken under Section 13 of the SARFAESI Act.

9. By relying next on (2019) 14 SCC 788 [Sree Anandhakumar Mills Limited Vs. Indian Overseas Bank and others], it is contended that a remedy before the DRT lies only when an action under the SARFAESI Act stands initiated, as opposed in the present case, where no such action had been taken at the