Section 34 of SARFAESI Act, Section 17 of the RD Act as well as Section 7 of the Family Courts Act. - Maintainability of Partition suit in family court is itslef doubtful - any interim injunction stall the proceeding of debt recovery tribunal - the lower court rightly revoked the exparte interim injunction order granted - The high court being appellant can not interfere with reasoned order issued by lower court as the appellant conduct is not beyond the blame = Poonam Agarwal, W/o.Sri Neeraj Agarwal... Appellant./Petitioner/Plaintiff Neeraj Agarwal, S/o. Sri shyam Sunder Agarwal And others... Respondents/Respondents/Defendants = 2014 ( Feb. Part ) judis.nic.in/judis_andhra/filename=10942

Section 34 of SARFAESI Act, Section 17 of the RD Act as well
as Section 7 of the Family Courts Act. - Maintainability of Partition suit in family court is itslef doubtful - any interim injunction stall the proceeding of  debt recovery tribunal - the lower court rightly revoked the exparte interim injunction order granted - The high court being appellant can not interfere with reasoned order issued by lower court as the appellant conduct is not beyond the blame =

Jurisdiction of Family court : P.Srihari v P.Sukunda2 wherein this Court held at para - 5 of the order as
under:
        5. In view of the above, the essential ingredient should be a dispute
between the husband and the wife and the said dispute can be with regard to
their marital status, divorce, restitution of conjugal rights, judicial
separation, child custody, maintenance, as also property sharing. But, in no
event, the Family Court can have jurisdiction if the above dispute is absent. By
no stretch of imagination, can the Family Court assume jurisdiction, if there is
a dispute between the brothers, sisters, mothers, fathers etc., concerning
property and the case on hand being one such, the Family Court had clearly no
jurisdiction.
Civil court Jurisdiction  when arise:
the ratio laid down in ICICI Bank Limited, Bangalore v V.T. Prakash1.   
As per the principle enunciated in the said case, a third party
to the proceedings before the Debt Recovery Tribunal is entitled to file a claim
petition.  If the claim petition is dismissed, the aggrieved party may institute
a suit as per Rule 11 (6) of the II Schedule to the Income Tax Act, 1961 read
with Section 29 of the RD Act.
Divorce and Partition suit to avoid proceedings of Debt Recovery Tribunal
A perusal of Ex.P4 reveals that first respondent filed divorce petition
O.P.No.1109 of 2011 (hereafter, Divorce O.P.) against the petitioner in the
month of August, 2011.  A perusal of Ex.P5 notice reveals that the matter was
posted to13.9.2011 for first appearance of the petitioner.  A perusal of the
record reveals that the petitioner filed the Partition O.P. in the month of
September, 2011.  There is no exchange of legal notices between the parties
prior to filing of Divorce O.P. and Partition O.P.  By the date of filing of
Partition O.P., the fifth respondent Bank filed O.A.No.456 of 2011 and brought
the schedule properties for sale. The schedule properties in Partition O.P. and
the schedule properties in O.A. No.456 of 2011 are one and the same.  It appears
that the petitioner and first respondent approached the Family Court after
publication of auction notice by the 5th respondent.  At the time of arguments,
learned counsel for fifth respondent submitted that the Bank could not conduct
auction in view of ex parte interim injunction granted in favour of the
petitioner in the Partition O.P.
Jurisdiction of Appellant court in interfering in interim orders
The Hon'ble Supreme Court in Gujarat Bottling Co. Ltd. v Coca Cola Co.,8
while dealing with grant of or vacating the interim injunction, held as follows.
In this context, it would be relevant to mention that in the instant case GBC
had approached the High Court for the injunction order, granted earlier, to be
vacated. 
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.
High court Held that

 In the instant case, the maintainability of Partition O.P. itself is in
question in view of Section 34 of SARFAESI Act, Section 17 of the RD Act as well
as Section 7 of the Family Courts Act.  If the court grants interim injunction,
certainly it would amount to stalling of the proceedings in O.A. No.456 of 2011.

25.     In the light of the foregoing discussion, we have no hesitation to hold
that the petitioner failed to prove the ingredients for granting interim
injunction.  The trial court exercised its discretion keeping in mind various
provisions involved in this case and also basing on sound principles of law.
26.     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
in view of the principle enunciated in Wander Ltd. v Antox P. Ltd9 and Mohd.
Mehtab Khan v Khushnuma Ibrahim10. Therefore, we are of the considered view that 
it is not a fit case to interfere with the well considered order under appeal.
27.     In the result, this civil miscellaneous appeal is dismissed confirming the
order dated 29.10.2013 in I.A.No.737 of 2011 in O.P.No.1153 of 2011 on the file
of the Judge, Additional Family Court at Hyderabad.  There shall be no order as
to costs.
28.     Consequently, the miscellaneous petitions if any pending in this appeal
shall stand closed.
2014 ( Feb. Part ) judis.nic.in/judis_andhra/filename=10942

THE HON'BLE Ms. JUSTICE G.ROHINI AND HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY                

CIVIL MISCELLANEOUS APPEAL No.1049 of 2013      

25-2-2014

Poonam Agarwal, W/o.Sri Neeraj Agarwal... Appellant./Petitioner/Plaintiff

Neeraj Agarwal, S/o. Sri shyam Sunder Agarwal And others...
Respondents/Respondents/Defendants  

Counsel for the Appellant:  Mr.Damodar Mundra

Counsel for the respondents 1 to 4: ---
 Counsel for the respondent No.5   :  Mr.Deepak Bhattacharjee

<GIST:

>HEAD NOTE:  

? CASES REFERRED:    
1) 2003 (3) ALLD 369
2) 2001 (1) ALT 739 (D.B)
3) (2004) 4 SCC 311
4) AIR 1955 Mad 135
5) (1859) 7 WR 213, at p.249
6) (2011) 2 SCC 782
7) AIR 2014 SC 371
8) (1995) 5 SCC 545
9) 1990 (Supp) SCC 727
10) (2013) 9 SCC 221

THE HON'BLE Ms. JUSTICE G.ROHINI    
AND
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY        

CIVIL MISCELLANEOUS APPEAL No.1049 OF 2013      


JUDGMENT: (Per Hon'ble Sri Justice T.Sunil Chowdary)
        This civil miscellaneous appeal is filed under Order XLIII Rule 1 of CPC
assailing the order dated 29.10.2013 in I.A.No.737 of 2011 in O.P.No.1153 of
2011 on the file of the Judge, Additional Family Court at Hyderabad.  By the
impugned order, the trial court rejected the petitioner's application under
Order XXXIX rules 1 and 2 CPC seeking interim injunction restraining the
respondents and their men from alienating or creating any third party interest-
cum-encumbrance in the petition schedule property pending disposal of the O.P.
For the sake of convenience, the parties will be hereinafter referred to as they
are arrayed in the suit.

2.      The averments in the petition, in brief, are as follows.  The marriage of
the petitioner was performed with the first respondent on 31.5.2001 at Tivoli
Gardens, Sikh Village, Secunderabad as per Hindu Rites and Custom.  Out of the
lawful wedlock, the petitioner and first respondent were blessed with three
children by name Baby Riya, Baby Kali and Master Kushal.  The second respondent
is the father-in-law, and respondent Nos.3 and 4 are brothers-in-law of the
petitioner.  The family members of the petitioner gave an amount of Rs.10.00
lakhs to the first respondent as customary gift during 'Phaldan Ceremony' on the
date of engagement.  The father of the petitioner deposited an amount of Rs.2.00
lakhs in the name of Riya, and Rs.5.00 lakhs in the name of Kali.  The
petitioner's father died on 13.12.1999.  The brothers of petitioner could not
maintain the business of oil mill and oil trading and they sold away machinery
of Jail Hind Oil Mill for Rs.1,86,00,000/- in June, 2007 and the sale proceeds
were distributed among the petitioner, her brothers and sisters.  The petitioner
got 1/4th amount i.e., Rs.46,50,000/-.  The petitioner provided an amount of
Rs.63,50,001/- to the respondent Nos.1 to 4, who in turn purchased house bearing
No.6-3-600/A/5, plot No.7, Hill Top Colony, admeasuring 360 Sq.yards in the name
of first respondent.  The respondent Nos.1 to 4 invested the money in various
businesses for better returns.  The properties shown in 'A' to 'E' schedule are
purchased out of Streedhana amount of the petitioner.  At the time of purchase,
the respondent Nos.1 to 4 assured the petitioner that they would allot share to
the petitioner at the time of partition.  In order to extend the business in
M/s.Neeraj Pipes Limited (hereafter, NPL), respondent Nos.1 to 4 pressurised the
petitioner and her family members to obtain loan and got mortgaged the schedule
properties to fifth respondent Bank.  At the instigation of third respondent,
the first respondent influenced the petitioner to sign on certain papers by
coercion.  At the instance of third respondent, the first respondent threatened
the petitioner to give divorce.  A meeting was arranged by the community elders
and other family members to settle the issue.  In the said meeting, the family
members agreed to pay an amount of Rs.5.00 lakhs to the petitioner.  In the
month of June, 2011, the petitioner requested the first respondent for the
amounts towards school fee of her children.  The respondent Nos.1 and 2 necked
out the petitioner from the matrimonial house on 24.6.2011.  The petitioner was
forced to reside at her parents' house along with children.  The petitioner came
to know that the respondent Nos.1 to 4 are trying to create third party interest
in respect of petition schedule properties and to deprive the right of the
petitioner.  The first respondent filed O.P. No.1109 of 2011 on the file of
Family Court, Hyderabad.  The fifth respondent has no right to claim the
properties which are streedhana properties of the petitioner.  The first
respondent has admitted the ownership of the petitioner over the petition
schedule properties.  The petitioner is no way responsible for the loan obtained
from the fifth respondent.  Hence the petition.

3.      The respondent Nos.1 to 4 remained ex parte.  The fifth respondent filed
counter denying all the averments made in the petition, inter alia contending
that NPL availed OCC limit of Rs.37.00 lakhs and executed relevant loan
documents on 14.9.1998 at Canara Bank, Rajendranagar Branch.  Subsequently the
limits were renewed from time to time and the loan account was transferred to
SME Branch of fifth respondent Bank on 01.7.2009 at the request of NPL.  The
loan was secured by personal guarantee, hypothecation of stock, goods, book
debts and on the security of immovable properties referred in 'B' schedule.  The
demand notices were issued under Section 13(2) of Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (for short `the SARFAESI Act'), dated 26.3.2011 and 28.3.2011 to the
principal borrower, guarantor and other family members making demand to
liquidate the following liabilities.
Nature of limit
Limit in lakhs
Liability in Rs.
OCC/ODBD ADHOC    
700.00
120.00
11,20,46,220/-
ILC/(DA/DP)
200.00
Rs.160.00 lakhs devolved liability debited to OCC account
Term Loan 1
300.00
1,87,96,045/-
Term Loan 2
185.00
1,28,02,210/-
HL in the joint name of all the four Directors of the company and four other
family members
  86.00
   97,87,916/-

The account is not being operated since 24.12.2010 and receivable were not
routed through the loan account.  On the inspection carried on 27.1.2011, it is
found the factory was not running and the stock available was not worth to
account.  A notice was issued on 09.3.2011 to regularise the account.  As the
account was irregular, as per LPA norms the account was declared as 'non-
performing asset' (NPA).  The respondent issued demand notice and on receiving
the notice a reply was received from NPL and Pankaj Agarwal.  In compliance of
Section 13(3)(a) of SARFAESI Act, the reply was given to both principal borrower
and guarantor separately.  In spite of demand the liability was not liquidated.
In view of the circumstances, possession notice was issued on 09.6.2011 and the
same was published in Indian Express and Andhra Jyothi on 11.6.2011.  The
tender-cum-auction sale notice dated 13.8.2011 was issued by following the
procedure in SARFAESI Act.  The tender-cum-sale notice was published in The
Hindu and Andhra Jyothi on 14.8.2011.  The auction of the properties was fixed
on 16.9.2011. The fifth respondent Bank followed the procedure scrupulously
without any violation.  The fifth respondent invoked the jurisdiction of the
Debts Recovery Tribunal under Recovery of Debts due to Banks and Financial
Institutions Act, 1993 (RD Act) and the application is numbered as O.A.No.456 of
2011.  The petition before the Family Court is not maintainable as it is without
jurisdiction in view of Sections 18 and 34 of RD Act. The Civil Court has no
jurisdiction to entertain the suit in respect of any matter which the DRT or
DRAT has jurisdiction.  The petitioner herein is defendant No.7 in O.A.No.456 of
2011.  All the properties in the petition namely the house No.6-3-600/A/5 is 'F'
schedule property; the property house No.6-3-594/7 is 'B' schedule property in
O.A.No.456 of 2011; petition schedule 'D' property is 'C' schedule in O.A.; the
petition schedule 'E' property is 'G' schedule property in O.A.  The reliefs
sought by the petitioner are with regard to properties in the O.A.  The fifth
respondent Bank initiated proceedings for recovery of Rs.11,20,46,220/- in case
of OCC/ODBD/ILC loan facilities; Rs.1,87,96,045/- in case of term loan 1; and
Rs.1,28,02,210/- in case of term loan 2 with interest at 19% per annum
compounded monthly from the date of application till full payment.  The purpose
of filing of main petition is to defeat the recovery and it is against the
public interest.

4.      In the trial court, on behalf of the petitioner, no oral evidence was
adduced but Exs.P1 to P16 were marked.  On behalf of the fifth respondent, no
oral or documentary evidence was adduced.

5.      Basing on the material available on record, the trial court arrived at a
conclusion that the petitioner is not entitled for interim injunction and
dismissed the same.
6.      Heard Sri Damodar Mundra, learned counsel for the petitioner and Sri
Deepak Bhattacharjee, learned counsel for the fifth respondent.

7.      The contention of learned counsel for the petitioner is that the trial
court has not exercised its discretion basing on sound principles of law and
dismissed the petition on erroneous grounds.  Per contra, the learned counsel
for fifth respondent submitted that that the Civil Court has no jurisdiction to
grant interim injunction in view of the pendency of O.A.No.456 of 2011 before
the Debt Recovery Tribunal.

8.      Now, the points that would arise for consideration in this appeal are:
1.      Whether the petitioner is entitled for interim injunction as prayed for?

2.      Whether the order under appeal is sustainable in law?

Point Nos.1 and 2:
9.      As per the averments of the petition, it is clear that the first
respondent is the husband, 3rd respondent is father-in-law and respondents 2 and
4 are brothers-in-law of the petitioner.  During their wedlock, petitioner and
the first respondent were blessed with three children.  Exs.P.7, P.8 are the
birth certificates of their children.
10.     A perusal of Exs.P.2 to P.6 clearly reveals that the first respondent
filed O.P.No.1109 of 2011 on the file of the Family Court, City Civil Court,
Hyderabad against the petitioner seeking divorce.  The contention of the
petitioner that her father is no more is supported by Ex.P.15 death certificate.
11.     Establishment of prima facie case, balance of convenience and the
irreparable loss likely to be caused to the petitioner are sine qua non for
grant of the relief of interim injunction.  Let us consider the facts of the
case, in the light of the above cardinal principles of law.
12.     A perusal of the record reveals that fifth respondent herein filed
O.A.No.456 of 2011 on the file of the Debt Recovery Tribunal against the
petitioner and the respondent Nos.1 to 4 herein and others.  The learned counsel
for the fifth respondent submitted that Section 17 of the RD Act ousts the
jurisdiction of the civil court. Therefore, the suit filed by the petitioner is
not maintainable.  On the other hand, learned counsel for the petitioner
strenuously contended that mere pendency of the proceedings before the Debts
Recovery Tribunal would not automatically oust the jurisdiction of the civil
Court.  To substantiate his argument, the learned counsel for the petitioner has
drawn our attention to the ratio laid down in ICICI Bank Limited, Bangalore v
V.T. Prakash1.   As per the principle enunciated in the said case, a third party
to the proceedings before the Debt Recovery Tribunal is entitled to file a claim
petition.  If the claim petition is dismissed, the aggrieved party may institute
a suit as per Rule 11 (6) of the II Schedule to the Income Tax Act, 1961 read
with Section 29 of the RD Act.
13.     As per the averments in the counter, the petitioner is the seventh
defendant in O.A.No.456 of 2011. It is not the case of the petitioner that she
filed a claim or objections petition and the same was dismissed by the concerned
authority.  Therefore, we are of the view that the facts of the case on hand are
entirely different from the facts of the case in the decision cited supra.
Hence we are of the considered view that the above decision relied on by the
learned counsel is no way helpful to the petitioner.
14.     The Family Courts Act, 1984 was enacted with a laudable object of
promoting conciliation and to secure speedy settlement of disputes in family
matters.  Unlike a civil Court, the Family Court has no jurisdiction to
entertain suits of all nature.  The jurisdiction of the Family Court is
restricted to particular types of cases only.  The Family Court has to satisfy
itself, before taking cognizance, that the lis and the relief sought by the
parties fall within the ambit of Section 7 of the Family Courts Act.  Section 7
thereof reads as under:
Section 7: Jurisdiction.-
(1) Subject to the other provision of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district court or
any subordinate civil court under any law for the time being in force in respect
of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law,
to be a district court or, as the case may be, such subordinate civil court for
the area to which the jurisdiction of the Family Court extends.
Explanation.-- The suits and proceedings referred to in this sub- section are
suits and proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of
nullity of marriage (declaring the marriage to be null and void or, as the case
may be, annulling the marriage) or restitution of conjugal rights or judicial
separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or
as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the
property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out
of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the
custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have
and exercise--
(a) the jurisdiction exercisable by a Magistrate of the first class under
Chapter IX (relating to order for maintenance of wife, children and parents) of
the Code of Criminal Procedure, 1973 (2 of 1974 ); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

15.     A glance at the Section 7 of the Family Courts Act clearly manifests that
the lis involved and the relief sought by the petitioner falls outside the
purview of the explanation to Section 7 (1) (a), (b), (d) (e), (f) and (g). A
careful reading of explanation to sub-clause (c) of Sub-clause (1) of Section 7
connotes that if the lis pertains to the property of the parties or either of
them, the Family Court can entertain the proceedings.  The Parliament in its
wisdom incorporated the words "with respect to the properties of the parties or
either of them", which clearly manifests that the property dispute of general
nature falls outside the purview of the Family Court.  As observed earlier, the
Act was enacted to provide speedy and inexpensive justice relating to family
disputes.  The underlying object of the Family Court Act is to persuade and
conciliate the parties so as to remain them unite in the interest of family in
particular and the society as a whole.  The fact that adversarial system may not
yield fruitful results in the family matters appears to be one of the reasons
for establishment of Family Courts.  Therefore, the explanation (c) of Sub-
Section (1) of Section 7 of the Act made it clear that Family Courts have
jurisdiction to entertain the property disputes of spouses only.  Explanation
(c) does not offer any difficulty, inasmuch as it is made explicitly clear that
the suit or proceeding should be brought out by the parties to a marriage with
respect to the properties of either of them.  The intention of the legislature
in enacting Family Courts Act is not to burden the Family Courts by tagging on
the cases of general nature.  To fortify our view, we are placing reliance on
P.Srihari v P.Sukunda2 wherein this Court held at para - 5 of the order as
under:
        5. In view of the above, the essential ingredient should be a dispute
between the husband and the wife and the said dispute can be with regard to
their marital status, divorce, restitution of conjugal rights, judicial
separation, child custody, maintenance, as also property sharing. But, in no
event, the Family Court can have jurisdiction if the above dispute is absent. By
no stretch of imagination, can the Family Court assume jurisdiction, if there is
a dispute between the brothers, sisters, mothers, fathers etc., concerning
property and the case on hand being one such, the Family Court had clearly no
jurisdiction.
16.     The contention of the learned counsel for the petitioner is that the
petitioner received an amount of Rs.46.50 lakhs from her brothers in the month
of June. 2007 with which the respondents 1 to 4 have purchased the house bearing
D.No.6-3-600/A-5, Plot No.7, Hill Top Colony, Hyderabad.  A perusal of Exs.P9 to
P13 sale deeds reveals that the respondents 1 to 4 have purchased properties in
their names in different years.  Unless and until the contrary is proved, the
Court can place reliance on the recitals of the registered document.  Ex.P14 is
an agreement purported to have been entered into between the petitioner and
respondents 1 to 4. This document prima facie would not help the petitioner to
establish that the petition schedule properties were purchased by the
respondents 1 to 4 with her streedhana money. There is no proper foundation or
explanation in the petition how the petitioner is entitled to 1/4th share in the
petition schedule property. Even assuming without conceding that the respondents
have utilised the streedhana money of the petitioner, whether that itself
creates any vested right to the petitioner to claim share in the petition
schedule property is prima facie doubtful.
17.     A perusal of the record reveals that the respondents 1 to 4 are carrying
on the business in the name and style of M/s. Neeraja Pipes Limited.   The
respondents 1 to 4 approached the 5th respondent, who in turn granted OCC limit
of Rs.37 lakhs on 14.09.1998 after execution of necessary documents by them.  A
perusal of the record further reveals that the loan amount was enhanced from
time to time at the instance of the said NPL. The fact remains that the
respondents 1 to 4 have obtained the loan from the 5th respondent bank much
prior to the marriage of the petitioner with the first respondent.  As seen from
the averments in the counter, the respondents 1 to 4 are not operating the
account with effect from 24.12.2010. The account of the respondents 1 to 4 was
classified as NPA on 25.03.2011.  The 5th respondent got issued demand notices
on 26.03.2011 and 28.03.2011 under Section 13(2) of the SARFAESI Act to the
respondents 1 to 4, the petitioner and others.   After receipt of objections
from respondents 1 to 4, the authorised officer has passed appropriate orders
and communicated the same as contemplated under Section 13 (3) (a) of the
SARFAESI Act. A perusal of the record reveals that the possession notice was
also served on respondents 1 to 4 and the petitioner.  After strictly adhering
to the procedure contemplated under the SARFAESI Act, the bank got published
auction notice dated 13.08.2011 so as to sell the petition schedule properties
in the public auction to be held on 16.09.2011 for recovery of about Rs.13.00
crores from the petitioner, respondent Nos.1 to 4 and others.
18.     A perusal of Ex.P4 reveals that first respondent filed divorce petition
O.P.No.1109 of 2011 (hereafter, Divorce O.P.) against the petitioner in the
month of August, 2011.  A perusal of Ex.P5 notice reveals that the matter was
posted to13.9.2011 for first appearance of the petitioner.  A perusal of the
record reveals that the petitioner filed the Partition O.P. in the month of
September, 2011.  There is no exchange of legal notices between the parties
prior to filing of Divorce O.P. and Partition O.P.  By the date of filing of
Partition O.P., the fifth respondent Bank filed O.A.No.456 of 2011 and brought
the schedule properties for sale. The schedule properties in Partition O.P. and
the schedule properties in O.A. No.456 of 2011 are one and the same.  It appears
that the petitioner and first respondent approached the Family Court after
publication of auction notice by the 5th respondent.  At the time of arguments,
learned counsel for fifth respondent submitted that the Bank could not conduct
auction in view of ex parte interim injunction granted in favour of the
petitioner in the Partition O.P.
19.     The learned counsel for the fifth respondent vehemently argued that in
view of Section 34 of SARFAESI Act, the petitioner is not entitled for interim
injunction.  A perusal of Section 34 clearly manifests that no injunction shall
be granted by any Court or authority in respect of an action taken or to be
taken in pursuance of the powers conferred by or under the SARFAESI Act or under
RD Act.  By the time of filing of the Divorce O.P. and Partition O.P., the fifth
respondent filed O.A.No.456 of 2011 and the same is pending before the DRT,
Hyderabad.  In such circumstances, the pertinent question that would arise for
consideration is, whether the petitioner is entitled for the interim injunction?
T o resolve this question, we are placing reliance on Mardia Chemicals v Union
of India3.  Paras 50 and 51 are relevant and are extracted hereunder.
        50. It has also been submitted that an appeal is entertainable before the
Debts Recovery Tribunal only after such measures as provided in sub-section (4)
of Section 13 are taken and Section 34 bars to entertain any proceeding in
respect of a matter which the Debts Recovery Tribunal or the Appellate Tribunal
is empowered to determine. Thus before any action or measure is taken under sub-
section (4) of Section 13, it is submitted by Mr Salve, one of the counsel for
the respondents that there would be no bar to approach the civil court.
Therefore, it cannot be said that no remedy is available to the borrowers. We,
however, find that this contention as advanced by Shri Salve is not correct. A
full reading of Section 34 shows that the jurisdiction of the civil court is
barred in respect of matters which a Debts Recovery Tribunal or an Appellate
Tribunal is empowered to determine in respect of any action taken "or to be
taken in pursuance of any power conferred under this Act". That is to say, the
prohibition covers even matters which can be taken cognizance of by the Debts
Recovery Tribunal though no measure in that direction has so far been taken
under sub-section (4) of Section 13. It is further to be noted that the bar of
jurisdiction is in respect of a proceeding which matter may be taken to the
Tribunal. Therefore, any matter in respect of which an action may be taken even
later on, the civil court shall have no jurisdiction to entertain any proceeding
thereof. The bar of civil court thus applies to all such matters which may be
taken cognizance of by the Debts Recovery Tribunal, apart from those matters in
which measures have already been taken under sub-section (4) of Section 13.
51. However, to a very limited extent jurisdiction of the civil court can also
be invoked, where for example, the action of the secured creditor is alleged to
be fraudulent or his claim may be so absurd and untenable which may not require
any probe whatsoever or to say precisely to the extent the scope is permissible
to bring an action in the civil court in the cases of English mortgages. We find
such a scope having been recognized in the two decisions of the Madras High
Court which have been relied upon heavily by the learned Attorney General as
well appearing for the Union of India, namely, V. Narasimhachariar v Egmore
Benefit Society4, AIR at pp. 141 and 144, a judgment of the learned Single Judge
where it is observed as follows in para 22: (AIR p. 143)
"22. The remedies of a mortgagor against the mortgagee who is acting in
violation of the rights, duties and obligations are twofold in character. The
mortgagor can come to the court before sale with an injunction for staying the
sale if there are materials to show that the power of sale is being exercised in
a fraudulent or improper manner contrary to the terms of the mortgage. But the
pleadings in an action for restraining a sale by mortgagee must clearly disclose
a fraud or irregularity on the basis of which relief is sought: Adams v. Scott5.
I need not point out that this restraint on the exercise of the power of sale
will be exercised by courts only under the limited circumstances mentioned above
because otherwise to grant such an injunction would be to cancel one of the
clauses of the deed to which both the parties had agreed and annul one of the
chief securities on which persons advancing moneys on mortgages rely. (See
Ghose, Rashbehary: Law of Mortgages, Vol. II, 4th Edn., p. 784.)"
(emphasis supplied)

20.     In Kanaiyalal Lalchand Sachdev v State of Maharashtra6, the Hon'ble
Supreme Court in para 22, held as follows.
We are in respectful agreement with the above enunciation of law on the point.
It is manifest that an action under Section 14 of the Act constitutes an action
taken after the stage of Section 13(4), and therefore, the same would fall
within the ambit of Section 17(1) of the Act. Thus, the Act itself contemplates
an efficacious remedy for the borrower or any person affected by an action under
Section 13(4) of the Act, by providing for an appeal before the DRT.

21.     In a recent decision in Jagdish Singh v Heeralal7, the Hon'ble Supreme
Court held that when the property in question was sold by the bank following the
provisions under the SARFAESI Act, the suit for partition and perpetual
injunction by respondent Nos.1 to 5 to declare the property as Hindu Undivided
Family property was not tenable.  After referring relevant case law on the
subject, the Supreme Court in para 22 held as follows.
22. Statutory interest is being created in favour of the secured creditor on the
secured assets and when the secured creditor proposes to proceed against the
secured assets, sub-section (4) of Section 13 envisages various measures to
secure the borrower's debt. One of the measures provided by the statute is to
take possession of secured assets of the borrowers, including the right to
transfer by way of lease, assignment or realizing the secured assets. Any person
aggrieved by any of the "measures" referred to in sub-section (4) of Section 13
has got a statutory right of appeal to the DRT under Section 17. The opening
portion of Section 34 clearly states that no civil court shall have jurisdiction
to entertain any suit or proceeding "in respect of any matter" which a DRT or an
Appellate Tribunal is empowered by or under the Securitisation Act to determine.
The expression 'in respect of any matter' referred to in Section 34 would take
in the "measures" provided under sub-section (4) of Section 13 of the
Securitisation Act. Consequently if any aggrieved person has got any grievance
against any "measures" taken by the borrower under sub-section (4) of Section
13, the remedy open to him is to approach the DRT or the Appellate Tribunal and
not the civil court. Civil Court in such circumstances has no jurisdiction to
entertain any suit or proceedings in respect of those matters which fall under
sub-section (4) of Section 13 of the Securitisation Act because those matters
fell within the jurisdiction of the DRT and the Appellate Tribunal. Further,
Section 35 says, the Securitisation Act overrides other laws, if they are
inconsistent with the provisions of that Act, which takes in Section 9 CPC as
well.
(emphasis supplied)
22.     If the petitioner opines that the fifth respondent has not followed the
procedure contemplated under Sections 13 and 14 of the SARFAESI Act, the remedy
available to the petitioner is to approach the DRT by invoking the provisions
under Section 17 of the SARFAESI Act.  The petitioner being a party to
O.A.No.456 of 2011 did not choose to challenge the legality of the orders passed
by the Authorized Officer under Sections 13 and 14 of the SARFAESI Act. In view
of the same and of the principles enunciated in Mardia Chemicals, Kanaiyalal and
Jagdish Singh, we are of the considered view that the Civil Court cannot grant
interim injunction to circumvent or nullify the orders passed by the DRT, while
exercising the jurisdiction conferred on it under Section 17 of the RD Act. The
above principle equally applies to the steps taken by the Bank by following the
procedure prescribed under the SARFAESI Act. As observed earlier, the
maintainability of the Partition O.P. before the Family Court, in view of
pendency of O.A. No.456 of 2011 before the DRT, is very much doubtful so far as
against respondent Nos.2 to 4 are concerned in general and 5th respondent in
particular.  If really, the petitioner and respondent Nos.1 to 4 were in
loggerheads, the possibility of contesting the partition proceedings by
respondent Nos.1 to 4 is more probable.  For the reasons best known, respondent
Nos.1 to 4 remained ex parte.  The petitioner is also one of the guarantors for
the loan secured by respondent Nos.1 to 4.  It is not mentioned in the petition
that respondent Nos.1 to 4 are trying to alienate the property to specific third
parties with an evil motive to deprive the legitimate right of the petitioner
over the petition schedule properties.

23.     The Hon'ble Supreme Court in Gujarat Bottling Co. Ltd. v Coca Cola Co.,8
while dealing with grant of or vacating the interim injunction, held as follows.
In this context, it would be relevant to mention that in the instant case GBC
had approached the High Court for the injunction order, granted earlier, to be
vacated. 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.


24.     In the instant case, the maintainability of Partition O.P. itself is in
question in view of Section 34 of SARFAESI Act, Section 17 of the RD Act as well
as Section 7 of the Family Courts Act.  If the court grants interim injunction,
certainly it would amount to stalling of the proceedings in O.A. No.456 of 2011.

25.     In the light of the foregoing discussion, we have no hesitation to hold
that the petitioner failed to prove the ingredients for granting interim
injunction.  The trial court exercised its discretion keeping in mind various
provisions involved in this case and also basing on sound principles of law.
26.     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
in view of the principle enunciated in Wander Ltd. v Antox P. Ltd9 and Mohd.
Mehtab Khan v Khushnuma Ibrahim10. Therefore, we are of the considered view that 
it is not a fit case to interfere with the well considered order under appeal.
27.     In the result, this civil miscellaneous appeal is dismissed confirming the
order dated 29.10.2013 in I.A.No.737 of 2011 in O.P.No.1153 of 2011 on the file
of the Judge, Additional Family Court at Hyderabad.  There shall be no order as
to costs.
28.     Consequently, the miscellaneous petitions if any pending in this appeal
shall stand closed.
____________
G.ROHINI, J
 _____________________
T.SUNIL CHOWDARY, J  
Dated:  25.02.2014

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515