[Cites 16, Cited by 0]
Calcutta High Court
Union Bank Of India vs Swadha Builders Private Limited And ... on 10 December, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
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IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APO 112 of 2023
IA NO: GA 7 of 2022
In
CS 390 of 2014
Union Bank of India
Vs.
Swadha Builders Private Limited and Others.
And
APO 109 of 2023
IA NO: GA 8 of 2022
In
CS 390 of 2014
Union Bank of India
Vs.
Swadha Builders Private Limited and Others.
For the Appellant : Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Ranajit Chowdhury, Adv.
Mr. Soumabho Ghose, Adv.
Mr. Abhidipto Tarafder, Adv.
Mr. Sudipto Chowdhury, Adv.
Mr. Purnendu Modak, Adv.
Ms. Sampoorna Saha, Adv.
For the Respondent : Mr. Suddhasatva Banerjee, Adv.
Nos. 1to 5 Mr. Pranit Bag, Adv.
Ms. Rituparna Chatterjee, Adv
Ms. Khushboo Choudhury, Adv.
Ms. Ayesha Kedia, Adv.
Mr. Aurin Chakraborty, Adv.
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Hearing Concluded on : November 4, 2025
Judgement on : December 10, 2025
DEBANGSU BASAK, J.:-
1. Appellant has assailed the judgment and order dated March
22, 2023 in IA GA 7 of 2022, IA GA 8 of 2022 in CS 390 of 2014.
2. Learned Senior Advocate appearing for the appellant has
submitted that, the respondent Nos. 1 to 5 had filed CS 390 of 2014
against the respondent Nos. 6 to 11 and the appellant praying for
declaration that the deed of equitable mortgage and deed of
guarantee executed in favour of the appellant be adjudged null and
void and be delivered up and cancelled.
3. Learned Senior Advocate appearing for the appellant has
referred to the sequence of events with regard to the immovable
property concerned. He has drawn the attention of the Court to the
fact that, the immovable property was mortgaged for the purpose of a
loan. The respondent No. 8 had defaulted in payment of the loan
facility. Appellant had classified the account of the respondent No. 8
as a Non-Performing Asset (NPA). Appellant had issued a notice
under the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act) on
August 4, 2014 which was followed by a notice dated October 28,
2014 under Section 13(2) of the Act of 2002.
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4. Learned Senior Advocate appearing for the appellant has
drawn the attention of the Court to the fact that, the appellant
initiated steps under the Act of 2002 whereupon, the respondent
Nos. 1 to 5 had filed CS 390 of 2014 on November 5, 2014.
5. Learned Senior Advocate appearing for the appellant has
submitted that, the respondent No. 1 made a representation under
Section 13(3A) of the Act of 2002 which was considered by the
appellant and rejected. Immediately after such rejection, the
respondent No. 1 had filed an interim application being GA No. 3838
of 2014 on February 4, 2015 which was dismissed as withdrawn on
July 14, 2016, on the Court refusing to pass any order in favour of
the respondent No. 1.
6. Learned Senior Advocate appearing for the appellant has
submitted that, on July 14, 2015, appellant had issued a notice
under Section 13(4) of the Act of 2002. The respondent Nos. 1 to 5
had challenged such notice under Section 17 of the Act of 2002,
before the Debts Recovery Tribunal on August 26, 2015.
7. Learned Senior Advocate appearing for the appellant has
contended that, the respondents had made 11 attempts to frustrate
the proceedings under the Act of 2002. He has referred to the
instance where, the respondent No. 1 filed 2 writ petitions, 2
proceedings under Section 17 under the Act of 2002, 3 revisional
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applications, 1 mandamus appeal, 1 criminal revisional application,
1 first appeal and another appeal.
8. Learned Senior Advocate appearing for the appellant has
submitted that, the order dated April 10, 2017 passed by the Debts
Recovery Tribunal, dismissing the proceedings under Section 17 of
the Act of 2002 operates as res judicata. In support of such
contention, he has relied upon (2017) SCC Online Mad 30542 (P S
Pushparaj Vs. Authorised Officer, Bank of Indore).
9. Learned Senior Advocate appearing for the appellant has
contended that, the suit is not maintainable in view of the Section 34
of the Act of 2002. He has submitted that, the appellant has taken
action under the Act of 2002 and, therefore, no suit would lie. In
support of such contention, he has relied upon 2023 Volume 16
SCC 331 (Punjab & Sind Bank Vs. Frontline Corporation
Limited).
10. Learned Senior Advocate appearing for the appellant has
contended that, appellant did not perpetuate any fraud. The alleged
fraud as has been alleged are inter se shareholders of the respondent
No. 1. According to him, questions relating to fraud in security
interest can be determined by the Debts Recovery Tribunal. In
support of such contention, he has relied upon 2024 SCC Online
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AP 2595 (K Jayamma and Others Vs. Syndicate Bank and
Others).
11. Relying upon 2022 SCC Online Cal 1389 (Asha Agarwal
and Others Vs. Williamson Magor & Company Limited and
Others) learned Senior Advocate appearing for the appellant has
contended that, no injunction can be granted restraining actions
under the Act of 2002.
12. Learned Senior Advocate appearing for the appellant has
contended that, IA GA 7 of 2022 is an abuse of the process of Court.
He has contended that, there was no fresh cause of action for such
application to be moved. He has relied upon AIR 1960 SC 941
(Satyadhan Ghoshal and Others Vs. Deorajin Debi (Smt)) and
AIR 1964 SC 993 (Arjun Singh Vs. Mohindra Kumar and
Others).
13. Learned Senior Advocate appearing for the appellant has
contended that, previous application for injunction being GA 3838 of
2014 was withdrawn by the respondent No. 1. Therefore, the
respondent No. 1 is guilty of perpetuating fraud on Court. He has
relied upon 1987 Volume 1 Supreme Court Cases 5 (Sarjuga
Transport Service Vs. State Transport Appellate Tribunal) in
such context.
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14. Learned Senior Advocate appearing for the appellant has
contended that CS 390 of 2014 is a suit for land. He has contended
that the mortgage property is situated 6, Jessore Road North,
Madhyamgram, Kolkata 700129 which is outside the Ordinary
Original Civil Jurisdiction of the High Court. He has contended that,
the suit relates to mortgage of land and is, therefore, a suit for land.
In support of such contention, he has relied upon 1998 Volume 2
Calcutta High Court Notes 473 (Hindustan Laminators Pvt. Ltd.
And Others Vs. Central Bank of India and Others) and 2015
Volume 5 Calcutta High Court Notes 207 (Eden Infrastructure
Private Limited & Others. Vs. Eden Realty Ventures Pvt. Ltd.
and Others).
15. Learned Senior Advocate appearing for the appellant has
contended that the order passed in GA 8 of 2022 was for return of
plaint and in the alternative rejection which was dismissed. He has
contended that, no argument was advanced on such application.
16. Learned Senior Advocate appearing for the appellant has
contended that, the bank has no role to play in the internal
management of the respondent No. 1. The suit relates to and arises
out of share transfer agreement dated October 3, 2012 which does
not concern the creation of the mortgage in favour of the appellant.
He has relied upon 1870 LR 5 Ch App 288 (The Royal British
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Bank Vs. Turquand) and ILR (1912) 39 Cal 810 (Collieries Co.
Ltd. Vs. Bholanath Dhar) in this regard.
17. Learned Advocate appearing for the respondent No. 1 to 5
has contended that there are 5 plaintiffs to the suit. Plaintiff No. 1 is
the owner of the land and building while plaintiff Nos. 2 to 5 are the
shareholders of the plaintiff No. 1. The defendant No. 1 and 2 were
the Directors of the defendant No. 3 and the intended transferee of
the shares held by the plaintiff Nos. 2 to 5 in the plaintiff No. 1. The
defendant No. 3 had borrowed money from the appellant. Defendant
Nos. 1 and 5 had guaranteed the share transfer agreement. The
defendant Nos. 4 and 5 were the Directors in the defendant No. 6.
Defendant No. 6 had stood as a guarantor for the credit facilities.
18. Learned Senior Advocate appearing for the appellant has
referred to the date of the filing of the civil suit. He has submitted
that, the suit was filed on November 5, 2014. He has pointed out
that the agreement between the plaintiff and the defendant No. 1
and 2 for transfer of shares to the defendant No. 1 and 2 was entered
on October 3, 2012. Defendant No. 4 had guaranteed the
performance and discharge of the obligations of the defendant Nos. 1
and 2 under the share transfer agreement.
19. Learned Advocate appearing for the respondent No. 1 to 5
has contended that, the share transfer agreement was to be
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completed by January 31, 2013. Terms of the agreement regarding
payment of balance consideration and no transfer or encumbrances
of the property until full consideration was paid had been
incorporated in the agreement.
20. Learned Advocate appearing for the respondent No. 1 to 5
has contended that, mortgage of the property of the plaintiff No. 1
could only be created by holding a general meeting in presence of the
transferees and passing a Board Resolution under the signature of
all the Directors and giving standing instructions to the lending bank
to disburse the loan only after payment of the balance consideration.
21. Learned Advocate appearing for the respondent Nos. 1 to 5
has contended that, the defendant Nos. 1 and 2 failed to discharge
their obligations under the share transfer agreement. He has referred
to several correspondences in this regard by which the parties
thereto sought extension of time.
22. Learned Advocate appearing for the respondent Nos. 1 to 5
has referred to the articles of association of the plaintiff No. 1. He
has contended that, the appellant has proceeded in contravention of
the articles of association of the plaintiff No. 1.
23. Learned Advocate appearing for the respondent Nos. 1 to 5
has contended that, the Chartered Accountant appointed to search
the records of the plaintiff No. 1 submitted a report dated December
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13, 2013. From such report, the plaintiffs had become aware of the
fraudulent Board Resolution dated December 22, 2012 on a
fabricated letter head with regard to the mortgage of the immovable
property concerned. The respondent Nos. 1 to 5 had also become
aware of memorandum of deposit of title deed and the fact that a
supplementary deposit of title deed was executed on September 25,
2013 despite disbursement of loan having stopped.
24. Learned Advocate appearing for the respondent Nos. 1 to 5
has contended that, the plaintiffs became aware of the fraud on
December 13, 2013 being the date of the report of the Chartered
Accountant. He has pointed out that, properties of the defendant No.
3 and the defendant Nos. 1 and 2 of a value in excess of Rs. 50
crores were available as collateral securities with the bank. The
Jessore Road property was not mentioned in the request for sanction
letter.
25. Learned Advocate appearing for the respondent Nos. 1 to 5
has contended that, the appellant was directly involved in the
fraudulent creation of the mortgage. In this regard, he has referred
to the Forensic Audit Report dated February 24, 2019, and the
chargesheet dated December 21, 2018 filed against the defendant
Nos. 1 and 2 and the officials of the appellant.
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26. Learned Advocate appearing for the respondent Nos. 1 to 5
has contended that, appellant could not have accepted the mortgage
of the property since, the property concerned is an agricultural land.
In this regard, he has referred to the letter dated December 15, 2012
of the Chief Manager of the bank as also the report dated December
14, 2012 of the learned Advocate for the bank.
27. Referring to the share transfer agreement, learned Advocate
appearing for the respondent No. 1 to 5 has contended that, without
an actual transfer being taken place, the creation of mortgage was
bad. He has contended that, mortgage was also bad in view of
violation of provision of the articles of association. The immovable
property had been overvalued. The company did not have any Board
Resolution authorising mortgage. The affidavit of the defendant No. 1
contains false statement.
28. Learned Advocate appearing for the respondent No. 1 has
submitted that suit was filed on November 5, 2014 before receipt of
the notice under Section 13(2) of the Act of 2002 dated October 28,
2014.
29. Learned Advocate appearing for the respondent No. 1 to 5
has contended that, the appellant did not proceed against the
properties of the defendant No. 3. He has referred to the sanction
letter dated December 11, 2012 which requires the defendant No. 3
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to give a guarantee as a guarantor although no such guarantee had
been given.
30. Two applications have been disposed of by the impugned
judgment and order. The respondent Nos. 1 to 5 had filed the
application being IA GA 7 of 2022 for injunction in the suit while IA
GA 8 of 2022 has been filed at the behest of the appellant.
31. Respondent Nos. 1 to 5 has filed the suit praying for the
following reliefs:-
"a) Declaration that the purported creation of equitable
mortgage of the Jessore Road property by the defendant Nos. 1
and 2 purporting to act on behalf of the plaintiff No. 1 in favour of
the defendant No. 7 and the acceptance of the same by the
defendant No. 7 is wrongful, illegal, fraudulent and void;
b) Declaration that the purported corporate guarantee given
by the defendant Nos. 1 and 2 purporting to act on behalf of the
plaintiff No. 1 in favour of the defendant No. 7 and the
acceptance of the same by the defendant No. 7 is wrongful,
illegal, fraudulent and void;
c) Decree directing delivery up and cancellation of the
purported equitable mortgage of the Jessore Road Property
created by the plaintiff No. 1 in favour of the defendant No. 7
upon adjudging the same to be void;
d) Decree directing delivery up and cancellation of the
purported corporate guarantee given by the plaintiff No. 1 in
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favour of the defendant No. 7 upon adjudging the same to be
void;
e) Decree for perpetual injunction restraining the defendants
or any of them from representing or holding out the Jessore Road
property as having been mortgaged in favour of the defendant
No. 7 or from in any manner giving effect or further effect to or
acting in pursuance of such purported mortgage of the said
Jessore Road property;
f) Decree for perpetual injunction restraining the defendants
or any of them from representing or holding out that any
corporate guarantee has been given by the plaintiff No. 1 to the
defendant No. 7 or from in any manner giving effect or further
effect to or acting in pursuance of such purported corporate
guarantee;
g) A decree for perpetual injunction be passed restraining the
defendant No. 7 from threatening to take or from taking any step
to enforce the purported equitable mortgage of the Jessore Road
property or the purported corporate guarantee given by the
plaintiff No. 1 on account of any default in the performance of
any repayment obligation undertaken by the defendant No. 3 or
the other defendants to it;
h) A decree for perpetual injunction restraining the defendant
No. 7 from disbursing and the defendant No. 3 from receiving any
further money against the purported creation of equitable
mortgage of the Jessore Road property of the plaintiff No. 1 or the
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purported corporate guarantee given by the said plaintiff in
favour of the defendant No. 7;
i) Decree for Rs. 9,50,67,840/-, against the defendants
jointly or severally on account of loss and damage suffered by
the plaintiffs by reason of their breach and violation of the
agreement dated 3rd October, 2012 and their fraudulent and
wrongful acts and conduct:
j) Alternatively, an enquiry be made into the loss and
damage suffered by the plaintiffs on account of the fraudulent
and wrongful acts and conduct of the defendant including the
breach of the terms of the agreement dated 3rd October, 2012 by
them, and a decree for such sum be passed against the
defendants jointly and/or severally as may be found due and
payable by them on such enquiry;
k) Receiver;
l) Injunction:
m) Attachment;
n) Costs;
O) Further and other reliefs."
32. In the interlocutory application being IA GA 7 of 2022,
respondent Nos. 1 to 5 have prayed for the following reliefs:-
"(a) An order be passed restraining the respondents forthwith
from giving any effect to or giving any further effect to and/or to
act in furtherance of and in pursuance of the purported equitable
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mortgage of the said property alleged to have created in favour of
the respondent - No.3.
(b) An order be passed appointing a fit and proper person as
the receiver/Special Officer to do the following:
i. To take custody of the deeds/documents in respect of the
said property in relation to the creation of the purported
mortgage.
ii. To take custody of all documents in relation to the
purported creation of mortgage in respect of the said property.
iii. To deposit such documents in a sealed cover before
this Hon'ble Court, pending disposal of the instant suit.
(c) An order be passed restraining the respondents forthwith
from seeking to enforce such purported equitable mortgage by
taking any coercive steps against the petitioner;
(d) An order be passed restraining the respondents from
giving any effect and/or further effect to and/or from taking any
steps in terms of and in pursuance of the corporate guarantee
purportedly given by the petitioner No. 1 to the respondent No. 7;
(e) An order of injunction be passed restraining the
respondent No. 7 from disbursing any further sum in favour of
the respondent No. 3 against and/or in connection the purported
creation of equitable mortgage of the said property of the
respondent No. 3 against and/or in connection the purported
creation of equitable mortgage of the said property.
(f) Ad-interim orders in terms of the prayer made above;
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(g) Such further or other order or orders be passed and/or
direction or directions be given as this Hon'ble Court may deem
fit and proper."
33. Suit of the respondent Nos. 1 to 5 having been filed prior to
the provisions of the Commercial Courts Act, 2015, the suit was
transferred to the Commercial Division by an order dated January
13, 2021. Plaintiffs in the plaint and the reliefs sought would
demonstrate that, respondent Nos. 1 to 5 as plaintiffs have sought
relief with regard to a mortgage of an immovable property.
Immovable property in respect of which, the respondent No. 1 to 5
have sought reliefs, in the suit, lies beyond the territorial jurisdiction
of the Original Side of this Hon'ble Court.
34. Reliefs that the respondent Nos. 1 to 5 as plaintiffs have
sought in the suit, are based on a share transfer deed in relation to
an immovable property and relates to the right, title and interest in
respect thereof.
35. By reason of the pleadings in the plaint of the suit and the
reliefs sought for therein, issues with regard to the right, title and
interest in an immovable property lying and situated outside the
Ordinary Original Civil Jurisdiction of the Hon'ble High Court have
been raised. An issue as to whether or not the High Court has
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jurisdiction over such suit, can justifiably be raised at the hearing of
the suit.
36. The appellant herein had filed IA GA No. 8 of 2025 seeking
return of the plaint. Such application has been dismissed by the
impugned judgment and order.
37. Since the suit stands transferred to the Commercial Division
upon coming into effect of the provisions of the Act of 2015, the
impugned judgment and order to the extent that it deals with IA GA
8 of 2022 filed by the appellant is not appealable. We have, therefore,
not considered the issue as to whether or not, the suit is a suit for
land, and therefore, the High Court has no jurisdiction over the
same, in its Original Side, finally.
38. We have examined the plaint of the suit, the injunction
petition filed by the respondent Nos. 1 to 5 being IA GA No. 7 of
2022, and the events that have occurred prior to the filing of the suit
as pleaded as well as the events occurring subsequent thereto.
39. Respondent Nos. 1 to 5 have filed the instant suit alleging
that an immovable property belonging to the respondent No. 1 had
been fraudulently mortgaged with the appellant as collateral security
for the loan granted by the appellant to the respondent No. 4. In
support of such contention, respondent Nos. 1 to 5 have relied upon
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a share transfer agreement, various clauses therein, and the conduct
of the parties governed by the share purchase agreement.
40. Respondent Nos. 1 to 5 have not pleaded nor has any
document established that, appellant is a party to the share transfer
agreement. However, it has been alleged that, officials of the
appellant were involved in the fraud of obtaining the mortgage of the
immovable property concerned. A criminal complaint has been
lodged with regard thereto in which, police filed a chargesheet.
41. Appellant has proceeded against the immovable property
concerned, under the provisions of the Act of 2002 by a notice dated
October 28, 2014 and subsequently on November 13, 2014. Both
such notices have been stated to be under Section 13(2) of the Act of
2002.
42. Respondent No. 1 has replied to the notice under Section
13(2) of the Act of 2002 by a letter dated January 17, 2015.
Appellant had disposed of the representation under Section 13(3A) of
the Act of 2002 made by the respondent No. 1 by a letter dated
February 2, 2015.
43. Respondent No. 1 had made two attempts to challenge the
steps taken under the Act of 2002 by the appellant. Respondent No.
1 had filed an application for injunction being GA 3838 of 2014 in
which, interim orders were refused by an order dated February 4,
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2015. Respondent No. 1 had filed a writ petition being WP 15887 of
2015 against the order of the Authorised Officer which was
dismissed as withdrawn on July 13, 2015.
44. Appellant had issued a possession notice in respect of the
immovable property concerned on July 14, 2015. Respondent No. 1
to 5 had withdrawn GA 3838 of 2014 filed in the suit on July 14,
2014.
45. Respondent No. 1 had challenged the possession notice dated
July 14, 2015 before the Debts Recovery Tribunal, Kolkata-II in SA
332 of 2015 which was dismissed by an order dated April 10, 2017.
Respondent No. 1 did not challenge the order dated April 10, 2017 of
the Debts Recovery Tribunal passed in SA 332 of 2015 before the
Debts Recovery Appellate Tribunal. However, respondent No. 1 had
assailed the order dated April 10, 2017 passed by the Debts
Recovery Tribunal by way of a revisional application being CO No.
2553 of 2017 which was dismissed by the High Court on September
1, 2017 in view of existence of statutory alternative remedy.
Thereafter respondent No. 1 did not take any further steps with
regard thereto.
46. Respondent No. 6 to 8 had assailed the possession notice
dated July 14, 2015 under Section 17 of the Act of 2002 being SA
314 of 2015 which was dismissed on July 14, 2015.
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47. Respondent No. 8 and 9 had moved the Debts Recovery
Appellate Tribunal against the order dated April 10, 2017 passed in
SA 314 of 2015. Debts Recovery Appellate Tribunal had recorded
that, the order dated April 10, 2017 was not appealed from by the
respondent No. 1. The appeal of the respondent No. 9 had held to be
not maintainable.
48. In the facts and circumstances of the present case, therefore,
action of the appellant taken under the Act of 2002, in respect of
immovable property concerned, were assailed before the Debts
Recovery Tribunal, by way of 2 applications under Section 17
thereof, being SA No. 332 of 2015 filed by the respondent No. 1 and
SA No. 314 of 2015 filed by the respondent No. 6 to 8. Both such
proceedings had been disposed of by an order dated April 10, 2017.
The respondent No. 1 did not challenge the same before the Debts
Recovery Appellate Tribunal. The respondent Nos. 6 to 8 did not
challenge the order dated April 10, 2017 before the Debts Recovery
Appellate Tribunal, also.
49. So far as the parties to the proceedings in SA 332 of 2015
and SA 314 of 2015 are concerned, the order dated April 10, 2017
passed by the Debts Recovery Tribunal are final.
50. Significantly, the Debts Recovery Tribunal, Kolkata in the
order dated April 10, 2017 has held, inter alia, that, as there was no
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illegality with respect to the creation of the mortgage, no exemption
from the proceedings under the Act of 2002 can be claimed on
account of the land being agricultural land and that, the writ and
the suit proceedings were irrelevant to the adjudication before the
Debts Recovery Tribunal.
51. In a later decision the Debts Recovery Tribunal has clarified
that, the Debts Recovery Tribunal will not enter into the fraud as
alleged by the respondent No. 1.
52. The issue of fraud that has been alleged by the respondent
Nos. 1 to 5 in the suit at hand, largely relates to and revolves around
the share purchase agreement to which the appellant is not a party.
Respondent Nos. 1 to 5 has alleged that, the creation of the mortgage
in favour of the appellant was vitiated by fraud, as some of the
parties to the share purchase agreement acted in breach of the terms
and conditions thereof in creating the mortgage.
53. However, records made available to Court demonstrate that,
mortgage had been created with Form-8 being filed with the
Registrar of Companies contemporaneously recording the creation of
such mortgage.
54. There is another aspect to the jurisdiction of this High Court
to try, entertain and determine the present suit. Appellant as a
secured creditor has invoked the provisions of the Act of 2002.
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Notice under Section 13(2) of the Act of 2002 is prior to the date of
filing of the suit.
55. Frontline Corporation Limited (supra) has considered
provisions of Section 34 of the Act of 2002 which prescribes ouster of
jurisdiction of Civil Court. It has held 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 under the Act of 2002. It
has held that, prohibition covers even matters which may be taken
cognizance of by the DRT though no measure is yet to be taken
under Section 13(4) of the Act of 2002. It has clarified that, the Civil
Court shall have no jurisdiction to pay, entertain any proceedings or
any matter in respect of which an action may be taken later on.
Therefore, power of Civil Court applies to all such matters which may
be taken cognizance of by the DRT apart from those matters in
which measures have already been taken under Section 13(4) of the
Act of 2002. Frontline Corporation Limited (supra) has however
noted that, jurisdiction of the Civil Court remains to a limited extent.
It has observed that, jurisdiction of the Civil Court can be invoked
where the action of the secured creditor is alleged to be fraudulent or
the claim of the secured creditor is so absurd and untenable that it
does not require any probe whatsoever.
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56. In the facts and circumstances of the present case, the
respondent Nos. 1 to 5 have filed the suit in which the impugned
order was passed. The respondent No. 1 had assailed the measures
taken under the Act of 2002 by the appellant in respect of the
immovable property concerned, unsuccessfully. Respondent 1 has
not preferred any appeal from the order of the DRT dated April 10,
2017. Challenge by another party to the order dated April 10, 2017
of the DRT before the Debts Recovery Tribunal has been dismissed.
57. Therefore, in the facts and circumstances of the present case,
as akin to Frontline Corporation Limited (supra) it cannot be said
that the appellant is acting fraudulently or that its claim is absurd or
untenable and does not require any proof to establish the same.
58. A Court considering an application under Order 39 Rule 1
and 2 of the Code of Civil Procedure, 1908, is necessarily required to
consider a prima facie case of the plaintiff, the balance of
convenience and inconvenience and whether or not, grave prejudice
would be caused by the non-grant of the order of injunction as has
been prayed for. While considering whether, the plaintiff has made
out a prima facie case, the Court necessarily needs to decide, that it
has jurisdiction to grant the relief prayed for, even at the prima facie
level.
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59. In the facts and circumstances of the present case, the Court
passing the impugned order has assumed jurisdiction over the
subject matter of a lis which it does not appear, on a prima facie
level to have. Since we are of the view that, the Court passing the
impugned order, does not have jurisdiction, on a prima facie level,
we are not in a position to sustain the impugned judgment and
order. Order of injunction granted by the learned Single Judge
stands vacated. In view of such finding of ours, we have refrained
from dealing with the other authorities cited at the bar as, in our
view, they do not impact our decision as returned herein.
60. As noted above, the impugned judgment and order has to
consider two applications. Appellant has filed two several appeals
directed against the same impugned judgment and order.
61. Appellant had applied for rejection of the plaint and
revocation of Clause 12 of the Letters Patent Act, 1865 by way of IA
GA 8 of 2022. Such application being IA GA 8 of 2022 having been
dismissed by the learned Single Judge, the same, in our view, is not
appealable under Section 13 of the Act of 2015. However, the issue
as to whether, Court has jurisdiction to try, entertain and determine
the suit or not, is an issue which is required to be taken into
consideration for the purpose of evaluating relief to be granted under
Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908. The
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evaluation of jurisdiction, in such a scenario is limited to a prima
facie binding. We have done so.
62. In view of the decision above, APO No. 112 of 2023 is
therefore allowed. APO 109 of 2023 is dismissed as not
maintainable.
[DEBANGSU BASAK, J.]
63. I agree.
[MD. SHABBAR RASHIDI, J.]
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Later:-
Learned advocate appearing for the plaintiff/respondent
prays for stay of the judgment and order.
Considering the grounds on which, we vacated the interim
order, we are not in a position to accept the request made on behalf
of the plaintiff/respondent.
[DEBANGSU BASAK, J.]
I agree.
[MD. SHABBAR RASHIDI, J.]
