JAMMU AND KASHMIR HIGH COURT
Wasim Sadiq Nargal, J.
Raj Kumar Gupta – Appellant
versus
Bank of India and Anr. – Respondents
MA No.10/2023 (O&M)
Decided on 21.7.2023

IMPORTANT POINTS
(1) Temporary injunction – Court below has to confine itself within parameters as laid down under Order XXXIX Rules 1 and 2 of CPC to see whether temporary relief of injunction can be granted during pendency of suit or not.
(2) Temporary Injunction – Section 34 of SARFAESI Act creates bar and provides that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under recovery of debts due to bank and Financial Institution Act, 1993.

Headnote:

(A) Interlocutory injunction – Grant of - Very object of granting interlocutory injunction is to protect appellant against any injury by violation of his/her rights for which he/she could not be adequately compensated in damages recoverable in action if uncertainty were resolved in his/her favour at trial – Need for such protection must be weighed against corresponding need of defendants to be protected against injury resulting from his/her having been prevented from exercising his/her own legal rights for which he/she could not be adequately compensated – Duty cast upon court below to weigh one need against another and determine where ‘balance of convenience’ lies – Interlocutory remedy is intended to preserve in status quo, rights of parties which may appear on prima facie case. [Para 13]

(B) Code of Civil Procedure, 1908 – Order XXXIX Rules 1, 2 –Temporary injunction –Grant of – While deciding application under Order XXXIX Rules 1 and 2 of CPC court cannot embark upon maintainability of suit and cannot decide suit on question of maintainability – Court below has to confine itself within parameters as laid down under Order XXXIX Rules 1 and 2 of CPC to see whether temporary relief of injunction can be granted during pendency of suit or not – While deciding said application, Court below has to be guided by three essential ingredients i.e. prime face case, balance of convenience and comparative loss or injury to claim relief of temporary injunction or not – While granting temporary injunction by way of interim relief, same flows from main relief and cannot be granted if it had nexus with main relief – At this stage, court cannot touch merits of case. [Paras 16, 17]

(C) Code of Civil Procedure, 1908 – Order XXXIX Rules 1, 2 – Temporary injunction – Vacation – Legality – No illegality much less perversity in order of court below – Court below after considering material facts on record and three cardinal principles i.e. prima facie case, balance of convenience and comparative loss and injury has vacated injunction already granted in favour of plaintiff – Plaintiff is mortgager of suit property and by his own conduct, he has mortgaged said property with bank and has secured loan and now plaintiff is estopped under law from questioning validity of said mortgage deed by way of suit before court below – One who seeks equitable relief must do equity also and demonstrate bonafides – Person guilty of suppression of material facts is not entitled to relief under Order XXXIX Rules 1 and 2 of CPC – Plaintiff has tried to abuse the process of law by filing a suit with view to restrain bank to alienate property which was mortgaged on grounds which are not sustainable in eyes of law – One who comes to court must come with clean hands – Since court below has recorded finding that plaintiff has not come to court with clean hands by concealing material facts and rightly so, plaintiff was not entitled to any relief of temporary injunction. [Paras 18, 20, 21, 22, 26, 27]

(D) Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 34 – Code of Civil Procedure, 1908 – Order VII Rule 11,Order XXXIX Rules 1, 2 –Rejection of pliant –Temporary injunction – Section 34 of SARFAESI Act creates bar and provides that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under recovery of debts due to bank and Financial Institution Act, 1993 – Since account of plaintiff has become NPA way back in year 2016, and defendant-Bank had threatened to enforce said mortgages for realization of alleged dues, plaintiff with a view to stall said process has mischievously filed suit before court below challenging mortgages so that bank cannot alienate property – In view of Section 34 of SARFAESI Act no injunction can be granted – Court below was totally justified in rejecting application of plaintiff for temporary injunction – Where proceedings under SARFAESI Act has been initiated, suit would not be maintainable and remedy for aggrieved person lies under Section 17 of aforesaid Act which is more efficacious and adequate remedy to party aggrieved. [Para 23, 25, 28]

(E) Code of Civil Procedure, 1908 – Order XXXIX Rules 1, 2 – Temporary injunction –– Once court of first instance exercises its jurisdiction to grant or refuse relief of temporary injunction, appellate Court should be loath to make any interference unless discretion exercised by court below in refusing to entertain prayer for temporary injunction is vitiated by error apparent or perversity and manifest injustice has been done, only then interference in such circumstances would warrant – Appellant has failed to point out any illegality much less impropriety in well reasoned order impugned. [Paras 29, 30]

Result: Appeal dismissed.