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Madhya Pradesh High Court · body

1999 DIGILAW 494 (MP)

Premier Enterprises v. Canara Bank

1999-07-22

S.B.SAKRIKAR

body1999
The appellant/defendants have directed this appeal against the order dated 1.9.1998 passed by V. ADJ Indore in CS No. 58/97 thereby allowing the application of respondent No. l/plaintiff Bank under O. 39 R. 1, 2 CPC restraining the appellant/defendants from withdrawal of the amount lying deposited in their saving bank A/c with the State Bank of Indore, Rajmohalla Branch, Indore. Briefly stated the facts of the case are that respondent No.1 Canara Bank filed a suit against the appellant and other respondents in the trial Court for the recovery of the amount due against the appellant and respondents. In the said suit, the plaintiff/Bank also filed an application under O.39 R. 1, 2 CPC for grant of temporary injunction against the appellant restraining withdrawal of the amount lying deposited in their saving bank a/c with the State Bank of Indore, Br. Rajmohalla, Indore. Initially, ex parte order of injunction was issued against the appellant by the trial Court. On service of notice to the appellant, the appellant opposed the prayer of injunction and prayed for vacation of order of injunction, passed ex parte. The trial Court, on hearing the parties, confirmed the order of ex parte injunction and issued temporary injunction against the appellant as indicated above. Aggrieved, the appellants have filed this appeal against the impugned order of the trial Court. With the consent, this appeal is heard on merits at the stage of motion hearing. The counsel for the appellants contended that the trial Court has committed an error in passing the impugned order of injunction without properly appreciating the provisions of Order 39 Rule 1, 2 CPC. The counsel submitted that the order of temporary injunction can be granted only with respect to the property disputed in the suit. The Saving Bank A/c with the State Bank of indore in the name of the appellant is not at all disputed property in the present suit. As such the impugned order of temporary injunction is illegal and inoperative and not in conformity with the law with regard to grant of temporary injunction. He also contended that the plaintiffs' suit for the recovery of the alleged amount of loan, as per the plaintiffs' case was sufficiently secured by the document of hypothecation executed by defendant/debtor. As such the impugned order of temporary injunction is illegal and inoperative and not in conformity with the law with regard to grant of temporary injunction. He also contended that the plaintiffs' suit for the recovery of the alleged amount of loan, as per the plaintiffs' case was sufficiently secured by the document of hypothecation executed by defendant/debtor. As such no order of temporary injunction restraining the appellants for transacting their business with the saving bank A/c in some other bank be granted under the Provisions of Order 39 Rule 1, 2 CPC and the impugned order of injunction deserves to be vacated. The counsel relied on the decision in Darshan Singh v. Central Bank of India and others (1999 (1) MPU 644). As against this, counsel for the respondent No. 1 supported the impugned order and submitted that in the facts and circumstances of the case, the said order was necessary for securing due performance of the decree likely to be passed against the appellants and the other respondents. I have considered rival submissions of the counsel for the parties and also perused the impugned order and copies of the documents available on record of the appeal. In view of the facts of the case as also provisions of O.39 R. 1 CPC, the impugned order of injunction cannot be sustained in view of the fact that the alleged saving bank a/c in the name of the appellant No.2 with the State Bank of Indore, Rajmohalla Br. is not property In dispute in the suit filed by the respondent/plaintiff. The question of irreparable injury also does not arise in favour of the plaintiff/Bank as the suit filed by the Bank is only a money suit filed for the recovery of the loan extended to the defendant/principal debtor. The law is well settled on the point that the injury cannot be considered to be irreparable injury which can be compensated in terms of money. Submissions of the counsel for the appellants also deserve to be accepted that the suit-loan extended to the defendant/debtors was sufficiently secured by the documents of hypothecation executed in favour of the plaintiff/Bank. As such there was no occasion for grant of temporary injunction restraining the appellants from transacting with their saving bank a/c lying with other Bank at Indore. Submissions of the counsel for the appellants also deserve to be accepted that the suit-loan extended to the defendant/debtors was sufficiently secured by the documents of hypothecation executed in favour of the plaintiff/Bank. As such there was no occasion for grant of temporary injunction restraining the appellants from transacting with their saving bank a/c lying with other Bank at Indore. While considering the question of grant of temporary injunction in a money suit based on documents of hypothecation, this Court in case of Darshansingh (supra) has held that in case of loan sufficiently secured by the documents of hypothecation, no temporary injunction restraining the defendants (debtors) from transacting with their Bank A/c with other Bank can be issued under provisions of Order 39 Rule 1, 2 CPC. In the light of the facts and circumstances of the case on hand, as also the law applicable, the impugned order of temporary injunction issued against the appellant is illegal and contrary to the settled principles of law and cannot be allowed to sustain and deserves to be demolished. In my considered opinion in such cases, appropriate remedy for the plaintiff-Bank is to ask for the relief of attachment before judgment as contemplated under Order 38 Rule 5 CPC. Consequently, this appeal succeeds and is accordingly allowed. The impugned order of temporary injunction issued against the appellants is set aside and vacated. However, in view of the facts and circumstances of the case on hand, respondent/Bank shall be at liberty to file appropriate application for grant of relief of attachment before judgment permissible under the law, and if such application is filed by the plaintiff/Bank in the trial Court, the trial Court shall consider and dispose of the same in accordance with law. With the aforesaid order, this appeal stands disposed of but without any orders as to costs.