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Madhya Pradesh High Court · body

2018 DIGILAW 922 (MP)

Noor Mohammad v. State of M. P.

2018-10-30

VIJAY KUMAR SHUKLA

body2018
ORDER : 1. The instant petition filed under Article 227 of the Constitution of India the petitioner has challenged the legality and validity of the order dated 20-8-2018 passed by the 2nd Additional District Judge, Balaghat in Misc. Civil Appeal No. 27/2018 affirming the order dated 26-7-2018 passed by the 2nd Civil Judge Class-II, Balaghat in Civil Suit No. 104-A/2018. 2. By the impugned orders the application filed by the plaintiff for temporary injunction restraining the defendant No. 2 the Authorized Officer Central Bank of India Regional Office, Chhindwara from attaching the property and to put it for auction. 3. The petitioners have filed the Civil Suit for declaration that they are the owners of the property in question and the respondents/defendants No. 4 to 8 have no share and right in the property. They also prayed for declaration that the order of the Collector dated 11-6-2018 for giving the property to the Bank is null and void and also the consequential proceedings of attachment and auction proceedings. The said application has been dismissed by order dated 26-7-2018 and thereafter the appeal has also been dismissed by order dated 20-8-2018. The Bank has published the auction notice on 10-10-2018 and the auction is scheduled to take place on 30-10-2018. It is also contended that the plaintiffs are neither the borrowers nor guarantors and therefore, the property cannot be attached and put to be auctioned under the Provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the “Act, 2002”). 4. Respondents No. 4 and 8 had taken loan of Rs.6,00,000/- from the bank and they did not repay the said amount, therefore, the bank has instituted the recovery proceedings under the Provisions of the Act, 2002. It is submitted that both the Courts below have erred while not granting the injunction in favour of the appellants/plaintiffs taking into consideration the Provisions of section 34 of the Act, 2002. It is contended that the Civil Suit is maintainable in view of the Judgment passed by the Apex Court in the case of Manila Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 : AIR 2004 SC 2371 . He also relied on the judgment passed by the Bombay High Court in the case of State Bank of India v. Sagar Pramod Deshmukh, AIR 2011 Bombay 144. He also relied on the judgment passed by the Bombay High Court in the case of State Bank of India v. Sagar Pramod Deshmukh, AIR 2011 Bombay 144. The jurisdiction of the Civil Court to entertain, try and decide the suit are proceeding in respect of the property which is the subject-matter of the Security Interested created in favour of the Secured Creditor is barred only to the extent of the matter which is covered under the jurisdiction of Debt Recovery Tribunal. 5. There is no dispute to the proposition laid down by the aforesaid judgments that the suit for declaration is maintainable as the Tribunal does not decide the title but I do not find any illegality and infirmity in the orders rejecting the injunction because admittedly the property is pledged with the Bank by the respondents No. 4 and 8. The suit has been filed on 25-5-2018. In the case of Industrial Investment Bank of India Ltd. v. Marshal's Power and Telecom (I) Ltd., 2007 (2) M.P.L.J. (S.C.) 32 : (2007) 1 SCC 106 , the challenge was made to grant of an interim injunction granted by the Division Bench of the High Court in favour of the plaintiff in the Civil Suit. In the said case the bar under section 18 was considered and it was held that the bar extends to the grant of interim relief by the Civil Court as well. 6. Both the Courts below have taken into consideration the Provisions of section 34 of the Act, 2002 and declined to grant any interim injunction. The said order has been affirmed by the Appellate Court. The plaintiffs and the private respondents belong to the same family and in view of the facts of the present case, the Courts have declined to interfere for granting injunction in favour of the plaintiffs. 7. In the case of Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC 727 the Apex Court has considered the scope of interference in appeal in the matter of temporary injunction. 7. In the case of Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC 727 the Apex Court has considered the scope of interference in appeal in the matter of temporary injunction. The relevant paragraph of the aforesaid judgment is reproduced as under: “The Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. (Para-14)”. 8. In the case of West Bengal Housing Board v. Pramila Sanfui, reported in (2016) 1 SCC 743 the Apex Court has held that no injunction can be granted against the non-payment. In the recent judgment passed in the case of Authorized Officer State Bank of Travancore v. Mathew K. C., 2018 (4) M.P.L.J. (S.C.) 162 : (2018) 3 SCC 85 . The Apex Court has deprecated passing of the interim order in the cases of recovery by secured creditor under the Provisions of Act, 2002. 9. In the conspection of the above discussion and taking into consideration the law as discussed herein above, I do not find any illegality warranting any interference with the order impugned under Article 227 of the Constitution of India. 10. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See. 10. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See. Jai Singh v. MCD, (2010) 9 SCC 385 and Shalini Shetty v. Rajendra S. Patil, 2010 (4) M.P.L.J. (S.C.) 590 : (2010) 8 SCC 329 ]. 11. Further, a Co-ordinate Bench of this Court in the case of Ashutosh Dubey v. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal, 2004 (3) M.P.L.J. 213 : 2004 (2) MPHT 14 held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or the jurisdiction through available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby. 12. In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed. The order impugned in the present writ petition passed by the Court below is upheld. Petition dismissed.