J U D G M E N T

1. This Second Appeal is filed against the divergent finding of the First Appellate Court passed in R.A.No.9/2023 dated 30.10.2023 on the file of Prl. Senior Civil Judge and CJM, Mangaluru.D.K in allowing the appeal and setting aside the order passed by the Trial Court in allowing the application filed under Order 7 Rule 11(d) of CPC.

2. This second appeal listed for admission and with the consent of both the counsel, heard the appeal on merits.

3. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

4. The factual matrix of case of plaintiff/respondent before the Trial Court that he has prayed restrain the defendant in interfering with peaceful possession and enjoyment of the suit schedule property consequent upon purchase made by the defendant/appellant herein. The suit schedule property which was purchased in the auction and contend that no possession is delivered to the auction purchaser. It is also contended that he had borrowed the loan and could not repay the amount and hence, the creditor Bank of Baroda classified the plaintiff’s company account as NPA on 01.04.2017 and proceeded for recovery by bringing the property of the plaintiff company for public auction etc. The company has given an OTS proposal to the Bank of Baroda for a sum of Rs.14.25 crore and the same has been accepted by the Bank. In pursuant of the OTS, opened a no lien account with the Bank of Baroda and deposited Rs.1.00 crore. When the creditor bank proceeded to recover the money, the plaintiff/respondent had approached the High Court by filing the W.P.No.1016/2022 and High Court was pleased to grant an interim order dated 28.01.2022 directing the bank to restore the possession of the subject property to the plaintiff’s company and not to confirm the then proposed e-auction sale scheduled to be held on 29.01.2022 without leave of the Court by directing the plaintiff company to deposit 10% of the OTS amount of Rs.14.25 Crore within 3 weeks from 28.01.2022 and another 10% within three weeks thereafter towards the upfront amount for the said OTS compromised. The bank had withdrawn the amount of Rs.1.00 crore deposited by the plaintiff company in no lien account and the plaintiff company has also deposited a sum of Rs.1.80 crores and reported compliance of the condition stated in the interim order dated 28.01.2022.

5. It is contended that Bank of Baroda was not conducted the e-auction to be held on 29.01.2022 and published a fresh e-auction dated 13.03.2022 fixing the date of auction on 13.03.2022 deliberately by disobeying the interim order of the High Court and plaintiff company had filed I.A.No.3/2022 again praying for the e-auction and High court declined to consider sum of Rs.1.00 crore withdrawn by the Bank of Baroda from no lien account pursuant to the OTS entered into between the bank and the plaintiff company also filed an application to recall the order giving an undertaking that company would further deposit a sum of Rs.1.00 crore on or before 07.04.2022 and accordingly purchased D.D and the same is pending for consideration. It is contended that in disobeying the order of the High Court, auction was conducted and property was sold in favour of the defendant. Immediately, he had filed O.S.No.444/2022 seeking the relief of permanent injunction restraining the Mangalore City Corporation for mutating the khata and khata was transferred and hence the suit become infructuous and the same was withdrawn. It is contended that the defendant on the basis of revenue documents raised a false claim and attempting to take forcible physical possession of the schedule property by illegally dispossessing the plaintiff quite contrary to law. An attempt was made to take the possession and hence the same was resisted and filed the suit for the relief of permanent injunction wherein the following prayer is made:

“Wherefore, the plaintiff prays that Hon’ble Court may pl