In the High Court of Judicature at Madras

Dated 16.08.2011

Coram

The Honourable Mr.Justice R.SUBBIAH

Civil Miscellaneous Appeal No.3005 of 2010

and M.P.No.1 of 2010

M/s.State Bank of India

Vadavalli Branch,

Coimbatore,

Now at State Bank of India,

Stressed Assets Management Branch.

..Appellant/Respondent/8th

Defendant

..vs..

Minor Krithaanyaa

rep.by its mother/guardian

G.Rekha

..Respondent/Petitioner/Plaintiff

Civil Miscellaneous Appeal filed under Order 43 Rule 1 read with

section 104 of C.P.C., against the order and decretal order dated

09.08.2010 passed in I.A.No.329 of 2010 in O.S.No.541 of 2008 on the

file of Additional District Judge (Fast Track Court No.1), Coimbatore.

For Appellant : Mr.M.L.Ganesh

For Respondent : Mr.S.Parthasarathy, Senior Counsel

for Mr.S.T.S.Murthy

JUDGMENT

Being aggrieved by the order dated 09.08.2010, allowing I.A.No.329

of 2010 in O.S.No.541 of 2008, filed under Order 39 Rule 1 and 2 read

with Section 151 C.P.C. and thereby granting temporary injunction

restraining the appellant herein, from interfering with the respondent's

peaceful possession and enjoyment of petition mentioned property, the

appellant/8th defendant has preferred this appeal.

2. The circumstances, which led the appellant/8^th defendant to file

the present appeal, are as follows:

(a) The minor respondent herein is the plaintiff and she filed

the suit through her mother, against the defendants numbering 8 for

partition and separate possession of her 1/4th share in Item I,

https://hcservices.ecourts.gov.in/hcservices/

1/12th share in item II and 1/8th share in item III schedule

properties and for a permanent injunction to restrain the 8^th

defendant bank (the appellant herein) from in any way dealing with

the minor's share in the above properties. The 1^st defendant is her

father.

(b) The bank has also filed an objection under section 14 of

the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (hereinafter for

brevity's sake referred to as 'SARFAESI ACT') for taking possession

of the properties.

(c) Pending suit, I.A.No.329 of 2010 for temporary injunction

was filed by the plaintiff. The affidavit was sworn to by the

mother, on behalf of the minor plaintiff, and it has been stated

that her father-in-law Krishnasamy @ J.V.Krishnamurthy got the suit

properties by way of partition deed dated 12.12.1957, which was

executed between himself and his brothers. The said Krishnamurthy

had one son (the father of the minor plaintiff) and two daughters,

viz., Manjula and Anitha, who are defendants 6 and 7 in the suit.

In the suit properties, the minor is entitled to 1/4th share in

Schedule 'A', 1/12th share in schedule 'B' and 1/4th share in 'C'

schedule properties. The father of the minor plaintiff i.e.the 1^st

defendant had mortgaged the suit properties with the 8^th defendant

bank including the share of the minor. It is the contention of the

mother of the plaintiff that the mortgage created in favour of the

8^th defendant bank shall not bind in respect of the share of the

minor. But, in the said loan, the parents of the minor have

executed personal guarantee along with the mortgage to stand as

security for the loan availed by the borrowers. The parents of the

minor plaintiff have no right whatsoever to mortgage the property

forgetting that the minor is entitled to the shares in the suit

properties. The guarantee given by the parents of the minor has no

validity and is not binding in law. While that being the position,

the 8^th defendant bank resorted to SARFAESI proceedings ignoring the

fact that the minor has filed the suit for partition. Hence, the

minor plaintiff has filed an application, seeking an order of

injunction restraining the bank from dealing with the properties.

(d) The application was resisted by the 8^th defendant bank

stating that the minor and her parents are all residing unde