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2007 DIGILAW 477 (ORI)

SANDHYARANI SUBUDHI v. KATIN MADHUSUDAN SENAPATI

2007-06-22

L.MOHAPATRA

body2007
ORDER L. Mohapatra, J. - This writ application is directed against the judgment and order dated 20th March 2007 passed by the learned 1st Addl. District Judge, Puri in FAO No. 8/176 of 2007-2006 confirming the order passed by the learned Civil Judges (Sr. Division), Puri in I.A. No. 148 of 2006 rejecting an application for grant of injunction. 2. The Plaintiffs are the Petitioners before this Court. They have filed C.S. No. 294 of 2006 for partition and carving out 3/7th share and also for declaration that the deed of relinquishment is void and also for permanent injunction. In the said suit an application was filed under Order 39, Rules 1 and 2 of the CPC for grant of injunction/preservation of 1/7th share in the suit property till disposal of the suit. The case of the Plaintiff-Petitioners is that originally the suit property was purchased by Saraswati, Sabitri and Sakuntala, who are sisters-in-laws, being the wives of three brothers. Saraswati died issue-less. Accordingly, her share devolved upon other two brothers and ultimately on Plaintiff-Petitioners and Defendants 2 and 3. It is also the case of the Plaintiff-Petitioners that late Surya Narayan misrepresenting the Petitioners and playing fraud to the extent that a power of attorney is required for mutation of the suit property, obtained a deed of relinquishment on 19.06.1998 which was discovered on 08.08.2006. The said Suryanarayan obtained a loan from Defendant No. 6 on the strength of the said deed of relinquishment. It is also the case of the Plaintiffs that Suryanarayan had no title over the suit property so far as share of the Plaintiffs are concerned. Since the loan obtained by Suryanarayan remained unpaid, Defendants 6 and 7 proceeded against them under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and threatened to sell the property kept under mortgage. The sole case of the Plaintiffs is that the Defendant No. 2 and Suryanarayan have no title over the suit property and they have misutilised the deed of relinquishment which was taken by fraud from the Petitioners stating it to be a power of attorney and, therefore, the bank has no authority to either take over the mortgaged property or sale it under the Act. The contesting opposite parties filed objection stating that the Court lacks jurisdiction under the Act to entertain the suit and it was also averred that the suit filed by the Plaintiffs is a collusive suit to frustrate the mortgage and payment of loan dues. 3. The learned Civil Judge on examination of the materials placed before it, held that the prima facie case of the Plaintiff-Petitioners is that they have signed a power of attorney which was in fact a deed of relinquishment and that they did not know the deed of relinquishment is being signed by them, is not acceptable since none of the Petitioners is illiterate. The property having been mortgaged to obtain loan and the bank being authorized under the Act to take over the property under the Act, the prayer for injunction was refused. Challenging the order of the learned Civil Judge, the Petitioners filed appeal before the learned Ist Addl. District Judge, Puri and the same was also dismissed on similar finding. 4. Shri Mohanty, the learned Counsel appearing for the Petitioners contended that if the entire property is sold and ultimately the Petitioners succeed in the suit, they cannot get back their 3/7th share property and the same cannot be compensated. Shri Rath, the learned Counsel appearing for the contesting opposite parties 6 and 7 submitted that under the Act, Bank is authorized to sale the mortgaged property in the event of failure on the part of the loanee to pay back the amount. The Court cannot therefore, restrain the statutory powers of the Bank given under the Act and pass an order of injunction. It was also contended by Shri Rath, the learned Counsel appearing for the Bank that the Petitioners are not illiterate and having full knowledge about contents of the document i.e. the deed of relinquishment, signed the same. Therefore, the plea taken now before this Court is not acceptable. 5. As is evident from the discussions made by both the Courts below, prima facie the Plaintiffs have not been able to prove that the deed of relinquishment had been obtained by fraud. The reasons given by the Courts below is that all the three excutants are not illiterate and could not have signed the document without going through the contents thereof. This being a concurrent finding of fact there is hardly any scope to interfere with such finding. The reasons given by the Courts below is that all the three excutants are not illiterate and could not have signed the document without going through the contents thereof. This being a concurrent finding of fact there is hardly any scope to interfere with such finding. The other question that arises for consideration is, whether the Court at this stage should restrain the Bank from selling the property kept under mortgage to liquidate the loan. There is no dispute that under the Act as mentioned above, the Bank has the power to sale the mortgaged property and recover the loan amount. Such power given to the Bank under the statute cannot be stalled by any order of injunction. The only question that requires for consideration is that in the event the Petitioners succeed in the suit, whether they will be in a position to get back the property or not. To resolve this difficulty that may come in future, I am of the view that best course will be to sale the property and keep 3/7th share of the same in fixed deposit by the contesting Defendant-bank so that in the event of success, the Plaintiff-Petitioners can be compensated. It is therefore directed that the suit property may be sold by the Bank i.e. Defendants 6 and 7, but 3/7th portion of the sale proceed be kept in fixed deposit and the fixed deposit receipt be furnished to the Court, so that in the event of success the Plaintiffs can be compensated in terms of money. It is further directed that the fixed deposit be renewed from time to time till disposal of the suit and depending on suit of the suit appropriate orders shall be passed for release of the said amount. 6. With above directions, the writ application is disposed of.