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2009 DIGILAW 1274 (HP)

STATE OF INDIA v. REETA DEVI

2009-12-14

SANJAY KAROL

body2009
JUDGMENT Sanjay Karol, J.- Plaintiffs Smt. Reeta Devi, Kumari Madhvi, Ms. Ragani, Ms. Payal, Shri Harsh, Smt. Pushpa Devi, Sh.Yog Raj Singh and Sh.Sulinder Singh (Respondents No.1 to 8 herein) filed a suit for permanent prohibitory injunction against the present petitioner (defendant No.1, for short known as the Bank) impleading Shri Joginder Singh, Shri Man Singh, Shri Sanjeev Kumar, Smt. Jarmo Devi, Smt. Anjna and Smt. Pushpa, as proforma defendants (proforma respondents No.2 to 7, respectively herein). 2. The plaintiffs averred that they alongwith proforma defendants are joint owners in possession of house constructed over land measuring 0-16-00 bighas (sixteen hundred sq. yards), bearing Khasra No. 528, Khata Khatoni No.150/157, situated at Mouza Banikhet Jarei, pargana Chuhan, Tehsil Dalhousie, District Chamba, H.P., to the extent of 256/320 shares and remaining 64 shares are owned and possessed by Shri Kulwant son of Shri Bachan Singh and further that plaintiffs No.1 to 5 and proforma defendant No.7 alongwith one Shri Manjeet Singh are also joint owners in possession of two storeyed house measuring 370.2 sq. yards, bearing Khasra No.151, Khata Khatoni No.31/34, situated at Mouza Kasba Banikhet, Pargana Chuhan, Tehsil Dalhousie, District Chamba, H.P. 3. For the purposes of securing loan for M/s Bizibi Infortech Pvt. Limited, Shri Kulwant Singh and Shri Manjeet Singh stood guarantors and mortgaged their share in the joint property/houses in favour of the Bank and since the mortgagors are not exclusive owners in possession of the said properties, hence any action taken by the Bank under the provisions of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SRFAESI Act) is illegal and as such be restrained from taking forcible possession and evicting the plaintiffs and the proforma defendants from these properties till such time the same are partitioned by metes and bounds. 4. The Bank filed its written statement, inter alia, taking a preliminary objection that the suit had been filed in collusion with the mortgagors; that the jurisdiction of the Court to try the suit was specifically barred under the provisions of the SRFAESI Act; in any event the suit was bad for non-joinder/mis joinder of necessary parties inasmuch as the mortgagors and the remaining co-sharers were not arrayed as parties to the suit. On merits, it was pleaded that property measuring 370.2 sq. On merits, it was pleaded that property measuring 370.2 sq. yards, Khasra No.151, was in physical possession of one Shri Sushil Kumar, who had constructed his two storeyed house thereupon. The said house alongwith the land underneath was sold by him to Shri Manjeet Singh. Since the land was in joint ownership, the cosharers including Smt. Reeta Devi (plaintiff No.1) and Smt. Pushpa Devi (plaintiff No.6) executed sale deed dated 20.6.2000 admitting handing over the possession of the land and the house built thereupon exclusively to Shri Manjeet Singh. By way of an equitable mortgage, as security of loan financed to M/s Bizibi Infotech Pvt. Limited, Shri Manjeet Singh mortgaged the same with the Bank by depositing the title deed. Shri Manjeet Singh also signed an affidavit to the effect that he was the exclusive owner in possession of the same. With respect to other land comprising Khasra No. 528, to the extent of 384/1920 share which works out to be 00-03-04 bighas [three biswas and four biswansis only i.e. 144 sq. yards (approx.)], land was purchased by Shri Kulwant Singh from Smt. Anju Bala in terms of sale deed dated 22.4.1991, when possession thereof was also handed over to him. Thereafter Shri Kulwant Singh constructed his house on the land which was in his exclusive possession. Shri Kulwant Singh also created equitable mortgage by deposit of title deed with the Bank, as security for loan financed to M/s Bizibi Infotech Pvt. Ltd. 5. To the extent the share in the land mortgaged, the plaintiffs and the proforma defendants had no right, title or interest in the said properties. It was only when Shri Manjeet Singh and Shri Kulwant Singh fully exhausted their appropriate remedies before different forums, including the High Court, and failed to obtain any order of restraint, they in collusion with the plaintiffs got the instant suit filed to delay/defeat the Bank’s right. 6. Alongwith the suit, plaintiffs filed an application under Order 39 Rules 1 and 2, CPC praying for an interim relief. Record reveals that an order directing the parties to maintain status quo qua the possession and nature of the land was passed by the trial Court on 1511.2007 which was confirmed in terms of order dated 24.9.2008. The Bank’s appeal before the District Judge also stands dismissed in terms of the impugned order dated 29.4.2009. Record reveals that an order directing the parties to maintain status quo qua the possession and nature of the land was passed by the trial Court on 1511.2007 which was confirmed in terms of order dated 24.9.2008. The Bank’s appeal before the District Judge also stands dismissed in terms of the impugned order dated 29.4.2009. These orders are under challenge in these proceedings instituted under Article 227 of the Constitution of India. 7. Mr. Arvind Sharma, learned counsel for the Bank, has referred to the decisions in Mardia Chemicals Ltd. and others vs. Union of India and others, (2004) 4 SCC 311, Central Bank of India vs. State of Kerala and others, (2009) 4 SCC 94, to contend that the jurisdiction of the Civil Court being specifically barred, grant of injunction by the Courts below is in excess of the jurisdiction vested in them. Regardless the Courts erred in allowing the application for interim relief. 8. Per contra, Mr. Verma, learned senior counsel has made the following submissions on behalf of the plaintiffs. (i) The Courts below having correctly exercised the jurisdiction vested in them in accordance with law, the scope of interference by this Hon’ble Court under Article 227 of the Constitution of India being limited, no interference is warranted. (ii) While deciding an application under Order 39 Rules 1 and 2, CPC the Court is not to decide the matter on merits. There cannot be any summary trial and adjudication of the controversy in issue. (iii) Being the recorded co-owners in possession of the entire suit properties, the plaintiffs had prima facie made out a strong case for grant of an interim relief. Balance of convenience was also in their favour. Allowing the Bank’s appeal would result into irreparable loss and injury. Hence the Courts correctly exercised the jurisdiction vested in them. (iii) Being the recorded co-owners in possession of the entire suit properties, the plaintiffs had prima facie made out a strong case for grant of an interim relief. Balance of convenience was also in their favour. Allowing the Bank’s appeal would result into irreparable loss and injury. Hence the Courts correctly exercised the jurisdiction vested in them. In support of his submissions, he has referred to various decisions of the Courts reported in Mahant Dooj Dass (dead) through L.R. vs. Udasin panchayati Bara Akhara and another, (2008) 12 SCC 181, Abdul Gafur and another vs. State of Uttarakhand and others (2008) 10 SCC 97, Radhey Shyam and another vs. Chhabi Nath and other (2009) 5 SCC 616, Sneh Gupta vs. Devi Sarup and others¸ (2009) 6 SCC 194, Sashi Adhalakha and another vs. Madhuri Saini Latest HLJ 2000 (HP) 789, Anand Prasad Agarwalla v. Tarkeshwar Prasad and others, (2001) 5 SCC 568, Hindustan petroleum Corpn. Ltd. vs. Sriman Narayan and another, (2002) 5 SCC 760, Sadhana Lodh vs. National Insurance Co. Ltd. and another, (2003) 3 SCC 524. 9. I have heard the learned counsel for the parties and also perused the record. 10. The principles on which this Court can interfere under Article 227 of the Constitution of India are well settled. 11. The Apex Court in Laxmikant Revhand Bhojwani and another vs. Pratapsingh Mohansingh Pardeshi, (1995) 6 SCC 576, has held that “The High court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High court interferes.” (Emphasis Supplied) 12. The Apex Court in Achutananda Baidya v. Prafullya Kumar Gayen and others, (1997) 5 SCC 76 has held as under:- “The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. The power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. The High Court can interfere under Art. 227 in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving a finding which is perverse or based on no material, or resulting in manifest injustice.” (Emphasis Supplied) 13. Similarly in Sugarbai M.Siddiq and others Vs. Ramesh S. Hankare (dead) by LRs. , (2001) 8 S.C.C. 477, procedural irregularity has also been held to be a ground for interference under Article 227 of the Constitution of India. 14. Interference is also warranted where for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, the Court below have passed erroneous orders [Essen Deinki Vs. Rajiv Kumar, (2002) 8 S.C.C. 400 and Estralla Rubber Vs. Dass Estate (P) Ltd. (2001) 8 S.C.C. 97]. 15. Only wrong decisions may not be a ground for the exercise of jurisdiction under Article 227 of the Constitution of India “unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party” [Ouseph Mathai & Ors. vs. M. Abdul Khadir (2002) 1 SCC 319]. 16. It is settled law that the jurisdiction under Article 227 is not to be exercised in the “cloak of an appeal in disguise." [State through Special Cell, New Delhi vs. Navjot Sandhu & Ors. (2003) 6 SCC 641]. 17. The power is both administrative and judicial in nature and could also be exercised suo motu [Jasbir Singh Vs. State of Punjab, (2006) 8 S.C.C. 294]. 18. The Apex Court in Radhey Shyam & anr. vs. Chhabi Nath & Ors. (2009) 5 SCC 616 has held that:- “Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law”. 19. The Apex Court in Sneh Gupta (supra) has held that the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India can interfere if it is found that the findings arrived at are perverse and/or in arriving the said findings, the Authority “failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable.” 20. Similarly, the principles for grant of interim injunction are now well stand settled in law. The relief of injunction is a discretionary remedy and the plaintiff has to establish that it has got a strong prima facie case of infraction of legal rights and such infraction causes irreparable loss and injury to him and that the injury is of such a nature that it cannot be compensated by way of damages. 21. A constitution Bench of the Apex Court in State of Karnataka vs. State of A.P. and others, (2000) 9 SCC 572 has also held that even if all the three ingredients are established, the Apex Court may still not grant an order of injunction in favour of the asking party. 22. In Gangubai Bablya Chaudhary vs. Sitaram Bhalchandra Sukhtankar and others, (1983) 4 SCC 31, the Court observed that when interim injunction is sought, the Court may have to examine whether the party seeking assistance of the Court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed. The Court was dealing with a case where the plaintiffs were seeking an injunction against the defendants from interfering in any manner with their possession during the pendency of the suit. 23. The Court was dealing with a case where the plaintiffs were seeking an injunction against the defendants from interfering in any manner with their possession during the pendency of the suit. 23. Further the Apex Court in Dorab Caswasji Waden vs. Coomi Sorab Warden and others, 1990(2) SCC 117, has held that since relief of interim injunction is an equitable relief, the Court shall consider whether the comparative mischief of inconvenience which is likely to ensue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff seeking the relief. 24. In Dalpat Kumar and another vs. Prahlad Singh and others, (1992) 1 SCC 719, while dealing with the plaintiff’s application for interim injunction filed in a suit for Specific Performance the Apex Court has held that “4. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/ defendant; (2) the courts interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established a trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. 5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” (Emphasis supplied) 25. The principles for grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court and the tests which are applied for exercising such discretion have been further reiterated by the Apex Court in Gujarat Bottling Co. Ltd. and others vs. Coca Cola Co. and others, (1995) 5 SCC 545 as under:- “While exercising the discretion the Court applies the following tests- (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. and others, (1995) 5 SCC 545 as under:- “While exercising the discretion the Court applies the following tests- (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need to the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the “balance of convenience” lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.” (Emphasis supplied) 26. In M.Gurudas and others vs. Rasaranjan and others, (2006) 8 SCC 367, the Apex Court was dealing with a case where a claim was set up by the legal heirs of one Nirmala, who was alleged to have been adopted by Obalappa and thus inherited the properties of Obalappa. Legal heirs had filed a suit praying for a decree for partition of their share in the property based on the deed of adoption. In the interlocutory application, the High Court passed an interim order directing that no alienation of the suit property would take place save and except the share of the builders to the construction agreement. The Apex Court set aside the order passed by the High Court and reiterated the principles for grant of injunction. The Court held that finding of prima face case would be a finding of fact, but, however, while arriving at such a finding of fact the Court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. While dealing with a question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as lso irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bonafide and the question sought to be tried must be a serious question and not merely a mere triable issue. 27. The contention of the plaintiffs must be bonafide and the question sought to be tried must be a serious question and not merely a mere triable issue. 27. In this backdrop the instant facts have to be appreciated. 28. The suit was filed on 24.10.2007. The pleadings in the suit including the plaint and application were signed, verified and accompanied by an affidavit of only plaintiff No.1 Smt. Reeta Devi. Importantly, various opportunities were afforded to the plaintiffs to file replication to the written statement filed by the Bank, but, however, the needful was not done. Thus the averments made by the parties have to be seen as they appear to be on record. 29. Record reveals that Proforma defendants No.3,4 and 5 were proceeded ex parte on 25.3.2008 and on the same day proforma defendants No.2,6 and 7 made a statement desiring not to file any written statement. The contest, therefore, is between the plaintiffs and the Bank. The plaintiffs filed an application for impleading Shri Kulwant Singh and Shri Balwant Singh as parties only on 31.5.2008 and the same is pending. 30. On 20.10.2009 this Court allowed the Bank to place on record documents pertaining to the proceedings initiated under the SRFAESI Act against Shri Manjeet Singh and Shri Kulwant Singh. Record reveals that they are real brothers. 31. It is quite apparent that notice dated 27.3.2006, under Section 13(2) of SRFAESI Act, was issued toM/s Bizibi Infortech Pvt. Limited, Shri Kulwant Singh and Shri Manjeet Singh (referred to as the mortgagors) directing them to make good payment of Rs.77,46,769.20 on or before 27.7.2006. Apparently, instead of complying with the same they approached the Debt Recovery Tribunal-II, Chandigarh, praying for an order of restraint against the Bank from taking any action pursuant to the aforesaid notice. Their prayer for interim relief was declined by the DRT-I, Chandigarh in terms of order dated 18.4.2007. Importantly, the mortgaged properties also being the suit properties were subject matter of the proceedings before the DRT. Having failed there, the principal borrower and the mortgagors filed CWP No.788 of 2007, titled as M/s Bizbi Infotech Pvt. Ltd. and others vs. State Bank of India, before this Hon’ble Court seeking interim relief with respect to the very same properties. The petition stands disposed of in terms of order dated 13.6.2007 passed by this Court. Evidently no relief was granted in their favour. 32. The petition stands disposed of in terms of order dated 13.6.2007 passed by this Court. Evidently no relief was granted in their favour. 32. Thereafter, the Bank approached the Sub Divisional Magistrate, Dalhousie for taking over the assets of the mortgagors, including the mortgagors’ rights in the suit property. However, the possession of the instant two properties could not be taken over as in terms of the Tehsildar’s report dated 6.6.2007 in the revenue record the properties were shown to be in joint ownership and possession of other persons also. Taking over possession of the same may lead to law and order problem and as such the Deputy Magistrate was to depute force for necessary compliance. Thereafter, defendant No.1 repeatedly pursued the matter with the District Administration to take over the possession of the mortgaged properties, which is evident from the letters dated nil of August, 2007, 27.8.2007 and 10.9.2007. The fact of the matter being that inspite of repeated reminders, possession of the mortgaged properties could not be taken over. 33. However, the matter did not rest there and on 25.2.2008, the Bank filed an application under Section 19 of the SRFAESI Act, inter alia, praying that the borrowers, including the mortgagors be restrained from alienating, transferring, encumbering the mortgaged properties including the suit property. 34. The trial Court has simply held that Manjeet Singh and Kulwant Singh not being in exclusive possession of these properties the plaintiffs have a strong prima facie case and are thus entitled to relief of an interim injunction. 35. The first Appellate Court by adopting the very same reasoning, has held that if injunction is not granted the plaintiffs would suffer irreparable loss and injury and as such, till the time the property was partitioned by metes and bounds the possession of the same could not be taken over by the Bank. 36. 35. The first Appellate Court by adopting the very same reasoning, has held that if injunction is not granted the plaintiffs would suffer irreparable loss and injury and as such, till the time the property was partitioned by metes and bounds the possession of the same could not be taken over by the Bank. 36. The Apex Court in Mardia Chemicals Ltd. (supra) has held that the jurisdiction of the Civil Court is barred in respect of the matters which the Debt Recovery Tribunal or Appellate Tribunal is empowered to determine in respect of any action taken or to be taken in pursuance of any power conferred under the SRFAESI Act and the jurisdiction of the Civil Court to a very limited extent can be invoked, if the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd or untenable which may not require any probe whatsoever. 37. The Apex Court in Central Bank of India (supra) has observed that the Act can be treated to be a radical measure taken by the Court for ensuring that the dues of the secured creditors can be recovered from the defaulting borrowers without any obstruction and that without any intervention of the Courts/Tribunals being of bogged down with the technicalities of Civil Procedure Code. 38. As per the revenue record property bearing Khasra No.151 is jointly owned and possessed by Shri Harsh, Madhvi, Ragani, Payal and Manjeet Singh and the nature of the suit land is GAIR MUMKIN MAKAN PUCCA DO MANJIL (two storeyed constructed house). In the suit Shri Manjeet Singh has not been arrayed as a party. Similarly, property comprising Khasra No.528 comprises of 16 biswas of land, is shown to be jointly owned and possessed by Shri Harsh, Madvi, Ragani, Payal, Reeta, Pushpa, Sulinder, Yog Raj Singh, the present plaintiffs and Smt. Anjana, Kulwant Singh, Man Singh, Sanjiv, Joginder and Jermu, who have not been arrayed as defendants to the suit . 39. Considering the provisions of Section 2(f)(ha), 13, 17 and 34 of SRFAESI Act, prima facie it appears that Civil Court may not have the jurisdiction to entertain the suit. 39. Considering the provisions of Section 2(f)(ha), 13, 17 and 34 of SRFAESI Act, prima facie it appears that Civil Court may not have the jurisdiction to entertain the suit. The reason being (i) with respect to property on Khasra No.528, the plaintiffs themselves have averred in the plaint that to the extent of 64 shares, land is owned and possessed ‘by Shri Kulwant Singh’ (Para 1); (ii) which fact also stands established from the sale deed placed on record, wherein exclusive possession of the house handed over by Shri Sushil Kumar to Shri Kulwant Singh stands mentioned. Importantly, not only Shri Kulwant Singh filed an affidavit in this regard but also the title search carried out by the Bank, prior to the creation of mortgage and disbursement of loan also depicted the said picture. The Bank had availed the services of the Valuer who found Shri Kulwant Singh to be in exclusive possession of the house constructed on land measuring 3 Biswas 4 Biswansis (144 sq. yards). 40. Importantly, land comprising Khasra No.155 measures 364 sq. yards/ 370.2 sq. mts. Plaintiff No.1 and plaintiff No.6 Smt. Pushpa Devi themselves were party to the sale deed dated 20.6.2000, whereby except for 7 sq. yards entire land was sold to Shri Manjeet Singh. The remaining share of the other co-sharers is just 7 sq. yards (approx.). The Valuer’s report, affidavit of Shri Manjit Singh also indicate exclusive title and possession to the aforesaid extent. As per Valuer’s report the property belonging to Shri Manjit Singh was in fact rented out to Shri Ajay Kumar (iii) Thus the guarantors/mortgagors were in exclusive possession of the mortgaged properties in their own independent right, (iv) With respect to the mortgaged properties the mortgagors themselves had approached the appropriate Forum under the provisions of the SRFAESI Act, (v) The plaintiffs themselves were not totally precluded from appearing in the Forums under the SRFAESI Act. 41. Thus keeping in view the principles of law laid down by the Apex Court, as noticed earlier, I am inclined to interfere and examine the matter further. 42. Considering the factual background, as noticed hereinabove, prima facie there appears to be force in the contention of the learned counsel for the Bank that the suit appears to have been filed at the behest of the mortgagors. Importantly, the plaint has not been signed by any other co-sharer. 42. Considering the factual background, as noticed hereinabove, prima facie there appears to be force in the contention of the learned counsel for the Bank that the suit appears to have been filed at the behest of the mortgagors. Importantly, the plaint has not been signed by any other co-sharer. Admittedly plaintiff No.1 Smt. Rita is known to the mortgagors. She is a party to the sale deed and alone has signed the plaint. Even before the Tehsildar, none of the co-sharers came forward to object to the taking over of the possession of the properties in exclusive occupation of Shri Kulwant Singh and Shri Manjit Singh. The proforma defendants have either not caused appearance or have not contested the suit. There is no justification for not impleading the mortgagors as party to the suit. The mortgagors would have been confronted with the documents executed by them. Such conduct does not appear to be honest. 43. Importantly, even till date no proceedings for partitioning of the land have been initiated by the plaintiffs. It cannot be the plaintiffs’ case that the mortgagors are not in exclusive possession of the mortgaged property as the contents of the written statement do not stand refuted. It is also not the plaintiffs’ case either that the possession of the property, in their exclusive possession is being taken over by the Bank or that the Bank is seeking to take over properties other than the ones mortgaged with the Bank. It was only after the mortgagors, who are known to the plaintiffs exhausted their remedies the present suit was filed. The plaintiff’s plea prima facie does not appear to be bonafide. None has come forward to challenge the mortgagors’ right to mortgage their properties or the Valuer’s report. 44. Importantly except for the revenue record no document whatsoever has been filed to even prima facie show that the plaintiffs or the proforma defendants are in joint possession of the mortgaged properties, whereas the Bank has placed sufficient documentary material to prove to the contrary. 45. Therefore, in my view, the plaintiffs have failed to make out a strong prima facie case in their favour. 46. Unfortunately, the Courts below did not even refer to the documents placed on record by the Bank showing the mortgagors’ exclusive possession. It erred in only considering the revenue entry (jamabandi) while arriving at its conclusion. 47. 45. Therefore, in my view, the plaintiffs have failed to make out a strong prima facie case in their favour. 46. Unfortunately, the Courts below did not even refer to the documents placed on record by the Bank showing the mortgagors’ exclusive possession. It erred in only considering the revenue entry (jamabandi) while arriving at its conclusion. 47. In the instant case, grant of interim injunction would lead to greater mischief against the Bank as it would not only give right to the plaintiffs to continue to occupy the property which even otherwise they are not entitled to, but would delay recovery of the money due to them. 48. In any event, the balance of convenience lies more in favour of the Bank. Simply because the plaintiffs are co-sharers to the extent of 7 sq. yards in one property that would not entitle them in law, to scuttle the statutory process for recovery of lacs of rupees due and payable by the mortgagors to the Bank. 49. The facts as they appear on record have been taken to be the basis for arriving at the conclusion. From the record prima facie it cannot be shown that the plaintiffs are in exclusive possession of the property. In the instant case no grave mis-justice would be caused to the plaintiffs if relief of injunction is not granted. It is true that plaintiffs’ cannot be deprived of their legal right but keeping in view the facts as noticed hereinabove equity is more in favour of the Bank. The passing of an interim order has resulted into grave miscarriage of justice. 50. In the event of the plaintiffs ultimately succeeding they can be easily compensated on such terms as may be determined by the Court below. It is not that plaintiff would suffer an irreparable and irretrievable loss which cannot be compensated in terms of money. 51. The lower Appellate Court has seriously erred in appreciating the ratio of law laid down by the High Court of Karnataka in Krishna (supra). While relying upon para 7, it failed to consider para 8 of the said report whereby the Court itself had vacated the order of status quo passed by the trial Court against the mortgagee who had initiated the action under the SRFAESI Act. 52. While relying upon para 7, it failed to consider para 8 of the said report whereby the Court itself had vacated the order of status quo passed by the trial Court against the mortgagee who had initiated the action under the SRFAESI Act. 52. The findings of the Courts below are based on wrong appreciation of principles of law and are thus perverse, erroneous and are liable to be set aside. Hence, there cannot be any blanket stay and that too without putting the plaintiffs to terms. 53. Abdul Gafur(supra), as referred to by Mr. Verma does not advance the case of the plaintiffs as the Apex Court has only held that law confers on every person an inherent right to bring a suit of civil nature of one’s choice, at one’s peril, howsoever frivolous the claim may be, unless it is barred by a statute. 54. The other judgments cited by Mr. Verma are not applicable to the facts of the present case in view of my findings, as referred to above. 55. For all the aforesaid reasons, I find that the plaintiffs have not been able to make out a prima facie case for grant of injunction. Consequently, impugned orders dated 24.9.2008 passed by the learned Civil Judge (Junior Division), Dalhousie, District Chamba, in CMA No.96 of 2007 and 29.4.2009 passed by learned District Judge, Chamba Division, Chamba, H.P. in Civil Misc. Appeal No.13 of 2008 are set aside and the application under Order 39 Rules 1 and 2, CPC filed by the plaintiffs is dismissed. 56. The petition is allowed. 57. Observations made hereinabove are only for the purpose of deciding the application and the suit will be decided on its own merits inhibited by any of the observations made hereinabove.