Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 56 (HP)

Sandeep Kapila v. State Bank of India

2018-01-05

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiff's instituted a suit against the defendants for permanent prohibitory injunction and for mandatory injunction, as also, for recovery of mesne profits @ Rs.20,000/- per month w.e.f. August, 2014 to 31.07.2015 and future mesne profits @ Rs.20,000/- per month, from 1.8.2015, after, filing of suit till the locks are unlocked and mucleman are removed from suit property. 2. The plaintiff's suit was resisted by the defendant by instituting written statement thereto. However, during the pendency of the suit, the plaintiff instituted an application, cast under the provisions of Order 39, Rules 1 and 2 of the CPC read with Section 151 of the CPC, wherein, he reared a claim for ad interim mandatory injunction being pronounced against the defendants, for theirs, unlocking the suit premises. The Learned trial Court allowed the plaintiff's application. Being aggrieved therefrom, the defendants instituted an appeal, before, the learned Additional District Judge-II, Solan, the latter accepted the defendants' appeal and reversed the findings recorded by the learned trial Court, upon the plaintiff's application, cast under the provisions of Order 39, Rules 1 and 2 of the CPC. Now the plaintiff being aggrieved therefrom, has instituted the instant petition, whereby, he concerts to beget reversals of the order passed by the learned Appellate Court. 2. Suit land bearing khasra number 2297/2070/1574, measuring 00-01-28 sq. meters, is situated in Mauza Ser, Tehsil and District Solan, H.P., AND is, averred to be purchased by the plaintiff, from, Syndicate Bank, in an auction held under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “SARFAESI” Act). It is averred of a certificate of sale being issued, on 4.8.2014, vis-a-vis the plaintiff. Obviously, since then upto the institution of suit, on 3.8.2015, a period of more than six months has elapsed, visa- vis the plaintiff, in his, pursuance, to, the certificate of sale issued vis-a-vis him by Syndicate bank, hence holding possession of the suit land. The principles, for guaging the validities, of granting a relief of ad interim mandatory injunction, are, borne in paragraph No.16, of, a judgment rendered by the Hon'ble Apex Court in a case titled as Dorab Cawasji Warden versus Coomi Sorab Warden and others, (1990)2 SCC 117 , paragraph whereof reads as under: “16. The principles, for guaging the validities, of granting a relief of ad interim mandatory injunction, are, borne in paragraph No.16, of, a judgment rendered by the Hon'ble Apex Court in a case titled as Dorab Cawasji Warden versus Coomi Sorab Warden and others, (1990)2 SCC 117 , paragraph whereof reads as under: “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. ” ….(p.126-127) The aforesaid relief, has been therein expostulated, to be an equitable relief, meant only for (i) preserving or restoring the status quo, existing on the last non contested status, (ii) immediately, preceding the eruption, of, controversies AND for compelling undoings of illegal acts and (iii) besides , for, ensuring restoration of, that, which was wrongfully taken from the party complaining. The aforesaid principles STAND further reiterated, by the Hon'ble Apex Court, in a case titled as Mohd. Mehtab Khan & others v. Khushunma Ibrahim & others, AIR 2013 SC 1099 , the relevant paragraph No.12 whereof reads as under:- “12. The aforesaid principles STAND further reiterated, by the Hon'ble Apex Court, in a case titled as Mohd. Mehtab Khan & others v. Khushunma Ibrahim & others, AIR 2013 SC 1099 , the relevant paragraph No.12 whereof reads as under:- “12. A proceeding under Section 6 of the Specific Relief Act, 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the plaintiff was in possession at any time six months prior to the date of filing of the suit. The legislative concern underlying Section 6 of the SR Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit.” (p1103-1104) 3. The learned counsel appearing for the respondents has, however, contended with much vigour, that with initiation of proceedings under the “SARFAESI” Act, by the defendants/respondents herein against one Sukh Ram, besides also vis-a-vis the suit khasra number, thereupon, with a special statutory mechanism being contemplated therein, for its availment by the plaintiff, (i) thereupon, the plaintiff's suit warranting, dismissal, (ii) rather than the inapt relief, of ad interim mandatory injunction being pronounced vis-a-vis him. In making the aforesaid submission, he, has relied, upon, a judgment pronounced by the Hon'ble Division Bench, of, this Court in CWP No.618 of 2016 in a case titled as M/s Cecil Instant Power Company versus Punjab National Bank and others. 4. This court would proceed to revere the rendition recorded by the Hon'ble Division Bench of this Court, in CWP No. 618 of 2016, only upon, an evident display emanating, from, the material on record, (i) qua apart from one Sukh Ram, against whom proceedings under the “SARFAESI” Act, stand evidently launched by the defendants, (ii) theirs standing also launched against the plaintiff/petitioner herein. However, no such material exists on record, (iii) contrarily, the suit khasra number bears a specific khasra No. 2297/2070/1574, measuring 00-01-28 sq. meter, whereas the khasra numbers appertaining, to Sukh Ram, against whom proceedings, under the “SARFAESI” Act, are launched, bear, contradistinct therefrom, khasra number 2031/1574, measuring 00-01-17 sq. meter. Consequently, with the suit property, owned, by the plaintiffs being located in a khasra number, contradistinct, vis-a-vis the khasra number owned by Sukh Ram, against whom, proceedings are launched, under, the “SARFAESI” Act, (iv) thereupon, it was apt, for the learned trial Court, upon, evident satiation, of, the principles propounded by the Hon'ble Apex Court in Dorab Cawasji Warden's case (supra), for validating reliefs, of, ad interim mandatory injunction, (v) comprised in six months prior to the institution of the suit, the plaintiff evidently holding possession, of the suit property, arising from, his on 4.8.2014 being issued a sale certificate, in pursuance to his purchasing the suit khasra number, in an auction conducted by the Syndicate bank. (v) The aforesaid status of the suit property immediately existing, prior, to the institution of the suit, also constituted the undisputed and uncontested status thereof, preeminently six months prior to the institution of the suit. (vi) Thereupon, with affordability of relief of ad interim mandatory injunction being rested, on, the principle of, imperativeness for preserving and restoring the status quo of the last non-contested status of the suit property, (vii) thereupon, hence, unless, the untenable misdoings, of, locking of the suit premises, is ordered be undone, through, affording, of, relief of ad interim mandatory injunction, obviously, there would, not, occur preservations and restorations of status quo of the last non contested status, of, the aforesaid suit khasra numbers. Contrarily, the learned Appellate Court, has prima facie, erroneously dwelt, upon, the factum of the integrity, of, khasra No. 2031/1574, in respect whereof against one Sukh Ram proceedings under the “SARFAESI” Act, were launched, “with” the suit khasra number, whereas, as borne out from the revenue records existing hereat, rather making display, of khasra numbers in respect whereof, proceedings, against Sukh Ram, under, the “SARFAESI” Act, were initiated, bearing no linkage, with the suit khasra number, owned by the plaintiff, (viii) thereupon, also the further reason assigned, by the learned Appellate Court, that, unless there occurs partition, of the purported undivided assets owned respectively, by one Sukh Ram and by the plaintiff, it would not be befitting, to affirm the order recorded by the learned trial Court, also hence prima facie suffers from an infirmity. In sequel, the order of the learned First Appellate Court, suffers, from a gross mis-appreciation, of, the material on record, hence, warrants interference by this Court. More so, when the balance of convenience lies in favour of the plaintiff also when in the event of refusal of the ad interim mandatory injunction, it will put the plaintiff/applicant to a loss which, cannot, be compensated in terms of money. 5. For the foregoing reasons, the instant petition is allowed and the impugned order recorded by the learned Additional District Judge-II, Solan in Civil Misc. Appeal No. 3ADJ-II/14 of 2017 is set aside, whereas, the order rendered by the learned Civil Judge(Junior Division), Court No.2, Solan, in CMA No. 172/6 of 2015 is maintained and affirmed. However, it is made clear that the observations made hereinabove shall not be construed as any expression on the merits of the case. No order as to costs. The parties are directed to appear before the learned trial Court on 16.01.2018. All pending applications also stand disposed of . Records be sent back forthwith.