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2014 DIGILAW 692 (RAJ)

Vikas Layat v. I. D. B. I. Bank

2014-03-11

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 7.1.12 passed by the Additional District Judge No.2, Udaipur, whereby an appeal preferred by the petitioner herein against the order dated 22.12.11 passed by the Gram Nyayalaya, Girwa, rejecting the application preferred by the petitioner under Order 39, Rule 1 and 2 read with Section 151 CPC, seeking temporary injunction against the respondent-I.D.B.I., stands dismissed. 2. The relevant facts are that the petitioner filed a suit for permanent injunction with the averments that he obtained loan of Rs. 9,40,000/- from the Bank of Baroda while mortgaging his property, a house, purchased by him from one Shri Murli Manohar, who had purchased the same from one Shri Pradeep Kumar. It was averred that the petitioner had never taken any loan from I.D.B.I., however, the proceedings were initiated by it under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "the Act"), allegedly for recovery of the outstanding dues of Shri Pradeep Kumar, the predecessor-in-title of the petitioner. It was averred that while purchasing the property, the petitioner had obtained all original documents from the seller and the loan was advanced by the Bank of Baroda, after verification of the original documents, which are presently lying in its custody. 3. The petitioner also preferred an application under Order 39, Rule 1 and 2 read with Section 151 CPC seeking temporary injunction against the I.D.B.I. not to take any proceedings in respect of the disputed property and not to disturb the use and occupation of the property by the petitioner in any manner and to maintain the status quo in respect thereof. 4. The application was contested by the I.D.B.I. by filing a reply thereto. The categorical stand taken on behalf of the I.D.B.I. is that the documents on the basis of which the petitioner is claiming ownership over the disputed property are forged. It is stated that patta of the disputed property was issued in favour of one Shri Charlie son of Tyron by the Gram Panchayat, Titardi on 30.7.05 and thereafter, the same was sold by Charlie in favour of Pradeep Kumar Parihar by a registered sale deed on 28.10.06 and on that basis, the property was mutated in the record of the local authority in the name of Pradeep Kumar on 28.11.06. Shri Pradeep Kumar applied for loan to the respondent-I.D.B.I. on 7.11.06 and the loan was sanctioned in his favour on 23.12.06. Shri Pradeep Kumar created equitable mortgage of the disputed property in favour of the I.D.B.I.. It is specifically averred that the original documents of the property were deposited by the loanee Pradeep Kumar with the I.D.B.I. and therefore, any subsequent mortgage created by the petitioner herein in favour of the Bank of Baroda is based on forged documents. 5. After due consideration, the trial court arrived at the finding that the prima facie case and balance of convenience is not in favour of the petitioner herein and found that irreparable loss will be caused to the respondent-I.D.B.I., if the injunction prayed for is granted. Accordingly, the application preferred seeking temporary injunction was rejected by the trial court vide order dated 22.12.11. Aggrieved thereby, an appeal preferred by the petitioner stands rejected by the Additional District Judge No.2, Udaipur, by the order impugned. Hence, this petition. 6. Learned counsel for the petitioner submitted that the petitioner has neither taken loan nor mortgaged the property with the respondent-I.D.B.I. and the disputed property stands mortgaged by the petitioner with the Bank of Baroda and all original documents of the property are also lying with the Bank of Baroda and thus, the security interest sought to be enforced by the respondent-I.D.B.I. on account of alleged mortgage created by Pradeep Kumar in its favour, is ex facie illegal. Learned counsel submitted that the petitioner is bona fide purchaser of the disputed property and unless and until it is determined by the court of competent jurisdiction, which set of the documents is forged, the I.D.B.I. cannot be permitted to take possession of the property and put it to auction for recovery of the loan advanced in favour of Shri Pradeep Kumar. Learned counsel submitted that if the respondent-I.D.B.I. is not restrained from continuing with the recovery proceeding initiated, the petitioner is bound to suffer irreparable loss. Learned counsel submitted that the courts below have seriously erred in not considering these relevant aspects of the matter and thus, the findings arrived at regarding prima facie case, balance of convenience and irreparable loss by the courts below are ex facie capricious and perverse. 7. Learned counsel submitted that the courts below have seriously erred in not considering these relevant aspects of the matter and thus, the findings arrived at regarding prima facie case, balance of convenience and irreparable loss by the courts below are ex facie capricious and perverse. 7. On the other hand, the counsel appearing for the I.D.B.I. submitted that the equitable mortgage of the property was created by Shri Pradeep Kumar in favour of the respondent I.D.B.I. way back on 23.11.06, just after purchasing the property from his predecessor-in-title Shri Charlie. Learned counsel submitted that all the original documents of the property are lying with the I.D.B.I. Learned counsel submitted that the property purchased by the petitioner from a subsequent transferee being encumbered property, the first charge of the I.D.B.I. continues and it has every right to enforce the security interest created in accordance with the provisions of Act of 2002. Learned counsel submitted that after due consideration of the rival submissions, the findings arrived at by the trial court, affirmed by the appellate court, cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 8. The counsel appearing for the Bank of Baroda submitted that on the facts and circumstances of the case, if the respondent I.D.B.I. is permitted to proceed with the recovery proceeding initiated, the Bank of Baroda shall suffer irreparable loss. It is submitted that till the issue with regard to genuineness of the documents deposited with the I.D.B.I. and Bank of Baroda is resolved, the status quo deserves to be maintained in respect of the property in question. 9. I have considered the rival submissions and perused the material on record. 10. It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not co-extensive with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence. (vide RSEB v. Mool Chand Jangir, 1993 (3) WLC 388.) 11. In ' Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswamin & Anr.' 2010 AIR SCW 628 , the Hon'ble Supreme Court after considering its various earlier decisions dealing with the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction observed : "The ratio of above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity." 12. In the backdrop of the position of law settled as above, adverting to the facts of the present case, it is to be noticed that Shri Pradeep Kumar had purchased the property from Charlie by a registered sale deed dated 28.10.06 and thereafter, he made an application for loan to the respondent-I.D.B.I.. It is a matter of record that on the loan being sanctioned on 23.12.06 in his favour, Shri Pradeep Kumar created equitable mortgage of the disputed property in favour the I.D.B.I.. According to the petitioner, he has purchased the disputed property from Murli Manohar by way of registered sale deed dated 29.10.10, who had purchased the said property from Pradeep Kumar vide registered sale deed dated 22.12.09. Thus, prima facie the property purchased by Murli Manohar, which in turn has been purchased by the petitioner, is encumbered property inasmuch as, Shri Pradeep Kumar had already created equitable mortgage of the property in favour of the respondent I.D.B.I. way back in December,2006. Thus, on the facts and in the circumstances of the case, in the considered opinion of this court, the concurrent finding arrived at by the courts below that petitioner has no prima facie case in his favour, cannot be faulted with. Thus, on the facts and in the circumstances of the case, in the considered opinion of this court, the concurrent finding arrived at by the courts below that petitioner has no prima facie case in his favour, cannot be faulted with. In absence of prima facie case in favour of the petitioner, other relevant aspects governing grant of temporary injunction i.e. balance of convenience and irreparable loss, are as a matter of fact not required to be gone into. 13. There is yet another aspect of the matter. The petitioner if aggrieved by the measures referred to in sub-section (4) of Section 13 being taken by the secured creditor, the respondent-I.D.B.I. is at liberty to approach the Debt Recovery Tribunal having jurisdiction in the matter by way of an application under Section 17 of the Act and therefore, an effective and efficacious remedy is even otherwise available to the petitioner under the law. 14. In view of the discussion above, in the considered opinion of this court, the order impugned passed by the appellate court, affirming the order passed by the trial court refusing to grant injunction prayed for, on the basis of the findings arrived at as aforesaid, which cannot be said to be capricious and perverse, does not suffer from any jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 15. The writ petition fails, it is hereby dismissed. No order as to costs.Petition Dismissed. *******