The Mahila Co-Operative Bank Ltd vs Sri Venugopal N
2023 Latest Caselaw 6004 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF AUGUST, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A. NO.3157/2022 (CPC)

BETWEEN:

1.     THE MAHILA CO-OPERATIVE BANK LTD.,
       MATHIKERE BRANCH
       NO.11, MITRALAYA
       M.S. RAMAIAH ROAD
       MATHIKERE
       BENGALURU - 560 054.

       HEAD OFFICE AT NO.13 AND 14
       SOUTH END ROAD
       SHESHADRIPURAM
       BENGALURU - 560 020
       REPRESENTED BY ITS
       GENERAL MANAGER/
       AUTHORISED OFFICER
       SMT. YAMUNA P.,                      ... APPELLANT

              (BY SRI RAMA BHAT K., ADVOCATE)
AND:

1.     SRI VENUGOPAL N.,
       AGED ABOUT 22 YEARS
       S/O. NAGESH J.,

2.     SRI NAGESH J.,
       AGED ABOUT 56 YEARS
       S/O. LATE JAVARAIAH
                                 2



3.    KUM. HEMAVARNA N.,
      AGED ABOUT 19 YEARS
      D/O. NAGESH J.,

      RESPONDENT NOS.1 TO 3 ARE
      RESIDING AT NO.709/18-1,
      'SAPTHAGIRI', 15TH MAIN ROAD
      NEAR ST. ANTHONY HIGH SCHOOL
      GOKULA, 1ST STAGE, 1ST PHASE
      MATHIKERE LAYOUT
      BENGALURU NORTH - 560 054.              ... RESPONDENTS

           (BY SRI RAMESH BABU B.A., ADVOCATE FOR R1;
                     R2 AND R3 ARE SERVED)

      THIS M.F.A. IS FILED U/O.43, RULE 1(r) R/W. SEC. 104 OF
CPC, 1908, AGAINST THE ORDER DT: 19.03.2022 PASSED ON
I.A.NO.2 IN O.S.NO.870/2020 ON THE FILE OF THE VI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, C/C. IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY, (CCH-5), ALLOWING I.A.NO.2 FILED U/O.39
RULE 1 AND 2 R/W. SECTION 151 OF CPC.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    22.08.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                         JUDGMENT

Heard the learned counsel for the appellant and learned

counsel for the respondent No.1-plaintiff.

2. This appeal is filed challenging the order dated

19.03.2022 passed on I.A.No.2 in O.S.No.870/2020 on the file of

the VI Additional City Civil and Sessions Judge and C/C. IX

Additional City Civil and Sessions Judge, Bengaluru City, (CCH-

5), allowing I.A.No.2 filed under Order 39, Rule 1 and 2 read

with Section 151 of CPC.

3. The appellant is the Mahila Co-operative Bank

Limited represented by its Manager and defendant No.3 in the

suit. The plaintiff had filed the suit before the Trial Court

contending that the suit schedule property is an ancestral

property belonging to his grand-father Javaraiah, who acquired

the same under registered sale deed and during his life time, he

was enjoying the suit schedule property. The said grand-father

died leaving behind three children and all of them have executed

relinquishment deed dated 22.01.2009 in favour of the father of

the plaintiff and by virtue of the said relinquishment deed, the

name of the defendant No.1 was mutated in BBMP records. It is

the claim of the plaintiff before the Trial Court that he has got

share in the said property and on seeing the paper publication in

'Kannada Prabha' newspaper dated 05.01.2020, wherein a

publication was made to take possession of the suit schedule

property, he came to know that defendant No.1 had mortgaged

the suit schedule property in favour of defendant No.3 i.e., the

appellant-bank for the purpose of availing loan by his friends. It

is contended that defendant No.1 without the knowledge and

consent of the plaintiff, mortgaged the suit schedule property to

deprive the legitimate right of the plaintiff in the suit schedule

property. Hence, filed the suit for the relief of partition.

4. It is contended that defendant No.3, suppressing the

pendency of the suit, filed Crl.Misc.No.3212/2021 under the

Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 ('the SARFAESI Act'

for short) and obtained the order dated 03.02.2022 for taking

physical possession of the suit schedule property and if the

plaintiff, his mother and sister are dispossessed from the suit

schedule property, they will be put to great hardship and

injustice. In the said suit, an application is also filed under

Order 39, Rule 1 and 2 read with Section 151 of CPC reiterating

the averments of the plaint and the same is numbered as

I.A.No.2, wherein prayed the Court to grant an order of

temporary injunction restraining the defendant No.3 from taking

physical possession of the suit schedule property pursuant to

order dated 03.02.2022.

5. The defendant No.3 appeared and filed the objection

statement contending that loan was borrowed by defendant

No.1 and the same was declared as NPA and defendant No.3

instituted the proceedings i.e., the appellant herein under

SARFAESI Act and obtained an order from the Jurisdictional

Magistrate to take possession of the property which is the

secured asset. If the plaintiff is aggrieved by the initiation of

proceedings under SARFAESI Act, he should have approached

the Debt Recovery Tribunal ('the DRT' for short) as provided in

Section 17 of the SARFAESI Act and the Civil Court has no

jurisdiction to entertain the present application. It is contended

that no notice was served under Section 125 of the Karnataka

Co-operative Societies Act, 1959, before institution of the suit.

It is also contended that SARFAESI Act bars the Civil Court from

entertaining the suit in respect of the matter in which the DRT is

having jurisdiction.

6. The Trial Court having considered the pleadings of

the parties, formulated the points whether the plaintiff makes

out a prima facie case, balance of convenience and irreparable

hardship and injury to grant an order of temporary injunction.

The Trial Court having considered the material on record,

granted an order of injunction as sought in the application.

Hence, the present appeal is filed before this Court by the

appellant-bank.

7. The main contention of the learned counsel for the

appellant before this Court in the appeal is that the Trial Court

committed an error in entertaining an application for granting

temporary injunction. It is contended that defendant No.1 being

the absolute owner of the suit schedule property had mortgaged

the property by executing registered mortgaged deed dated

23.12.2014 and 23.01.2017 in favour of the appellant-bank.

The plaintiff filed the suit for partition and separate possession of

the plaint schedule property in the year 2020, when the

defendant No.3 had already declared the loan account as NPA

and initiated recovery proceedings, so as to recover the due

amount, the same itself shows that the plaintiff and defendant

Nos.1 and 2 colluding with each other, have filed the present

suit, so as to stall the recovery proceedings. Under the

circumstances, the Trial Court ought not to have entertained the

application filed under Order 39, Rule 1 and 2 read with Section

151 of CPC.

8. Learned counsel for the appellant also contend that

the defendant No.1 obtained mortgage loan of Rs.36,00,000/-

(i.e., Rs.24,00,000/- and Rs.12,00,000/-, totally Rs.36,00,000/-)

when the plaintiff and defendant No.2 were minors. The

defendant No.1 being the father has all the family responsibilities

and being the absolute owner of the plaint schedule property

obtained mortgage loan by creating charge over the plaint

schedule property, for which all the family members i.e., the

plaintiff, defendant Nos.1 and 2 are jointly liable to repay the

same. The plaintiff has no independent right to stall the recovery

proceedings by filing suit for partition.

9. It is also contended that originally the plaint

schedule property was allotted by BDA to the father of the

defendant No.1. After the death of Javaraiah, the remaining LRs

executed relinquishment deed. As a result, the defendant No.1

acquired full right, title and the same has been mortgaged.

Since the plaint schedule property is not an ancestral property,

the plaintiff has no right over the said property by birth. The

succession is not opened to the plaintiff to claim partition and

separate possession when his father is alive. The Trial Court

committed an error in coming to the conclusion that the said

property is an ancestral property.

10. The counsel also would vehemently contend that no

notice was issued under Section 125 of the Karnataka Co-

operative Societies Act, 1959 and the bank has initiated recovery

proceedings and if the plaintiff has any right, he can approach

the DRT under Section 17 of the SARFAESI Act and earlier, the

plaintiff had also filed objection to the proceedings in

Crl.Misc.No.3212/2021 and the same was overturned by the

Court and instead of challenging the same, an interim order is

sought before this Court. It is contended that the appellant is a

Co-operative Bank and huge public money is involved in the

transaction and there is a bar under Section 34 of the SARFAESI

Act. Under the circumstances, the Trial Court ought not to have

allowed the application granting an order of temporary

injunction.

11. The learned counsel for the appellant in his

argument would vehemently contend that there is a bar under

Section 34 of the SARFAESI Act and when the recovery

proceeding was initiated since the loan account is treated as

NPA, the plaintiff, who is none other than the son of defendant

No.1 joined together and hand in glow with defendant No.2, filed

a collusive suit. It is also contended that the property is an

ancestral property and hence, it requires interference of this

Court.

12. Per contra, learned counsel for the respondent No.1-

plaintiff would vehemently contend that the property is pledged

with the bank and plaintiff is not the signatory to the said

mortgage and he has got right in the said property and the

defendant No.1 was not having any absolute right to create any

mortgage in favour of the bank. The counsel also would

vehemently contend that the Trial Court having considered

Sections 13(4) and 17(3) of the SARFAESI Act and also Section

34 of the SARFAESI Act, comes to the conclusion that DRT can

entertain any issues involved between the parties only with

regard to Section 13(4) of the SARFAESI Act and Civil Court has

jurisdiction to deal with the suit for partition and such other suits

of similar nature is entertainable by the Civil Court and the Civil

Court can decide the right of the parties in such suits and the

same cannot be dealt with by DRT. The counsel also would

contend that, in the case on hand, the suit is filed in respect of

the ancestral property of the plaintiff claiming share. In that

view of the matter, there is no reason to contend that no

separate notice is issued as required under Section 125 of the

Karnataka Co-operative Societies Act, 1959. Hence, the Trial

Court comes to the conclusion that the plaintiff has made out a

prima facie case for claiming his legitimate share in the suit

schedule property and comes to the conclusion that if the order

of temporary injunction is not granted, it would defeat the right

of the plaintiff and the Trial Court has given the reasoning while

entertaining the application filed under Order 39, Rule 1 and 2

read with Section 151 of CPC.

13. Learned counsel for the respondent No.1-plaintiff, in

support of his argument, he relied upon the judgment of the

Apex Court in ROHIT CHAUHAN VS. SURINDER SINGH AND

OTHERS reported in (2013) 9 SCC 419 and the said judgment

was also relied upon before the Trial Court, wherein the Apex

Court held that coparcenary property means the property which

consists of ancestral property and a coparcener would mean a

person who shares equally with others in inheritance in the

estate of common ancestor. "Coparcenary" is a narrower body

than the joint Hindu family and before the commencement of the

Hindu Succession (Amendment) Act, 2005, only male members

of the family used to acquire by birth an interest in the

coparcenary property. A coparcener has no definite share in the

coparcenary property but he has an undivided interest in it and it

enlarges by deaths and diminishes by births in the family. It is

not static. The Apex Court also held that if a son is subsequently

born, the alienation made before the birth cannot be questioned.

But, the moment a son is born, the property becomes a

coparcenary property and the son would acquire an interest in

that and become a coparcener.

14. The counsel also relied upon the judgment of the

High Court of Judicature at Bombay in CIVIL REVISION

APPLICATION NO.29/2011 dated 25.03.2021, wherein the

Division Bench answered the questions referred to the Court and

brought to notice of this Court that Para No.28(D), wherein it is

held that where civil rights of persons other than the borrower(s)

or guarantor(s) are involved, the Civil Court would have

jurisdiction, that too, when it is prima facie apparent from the

face of record that the relief claimed, is incapable of being

decided by the DRT, under Section 17 of the DRT Act, 1993 read

with Sections 13 and 17 of the SARFAESI Act. Hence, the civil

right has to be decided in Civil Court only.

15. The counsel also relied upon the judgment of the

Madras High Court in C.R.P. (PD) NO.1061 OF 2003 AND

C.M.P.NO.7091 OF 2003 dated 19.03.2004 and brought to

notice of this Court the observation made in the order that,

admittedly, in our case, the petitioners have filed the suit for

partition including the item, in respect of which the 3rd

respondent taken out proceedings to bring the same for sale

without the intervention of the Court till the rights of the parties

are determined by the Civil Court, and the Civil Court alone

could decide and determine the rights of the parties in respect of

their respective claims in the suit for partition, the 3rd defendant,

though a secured creditor, cannot bring the property for sale by

invoking the bar under Section 34 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act or the bar under Section 13 of the Act. The Court

below has not taken into consideration of these aspects and as a

matter of fact, these salient features were not brought to the

notice of the Court below, which resulted in passing of an

erroneous order, which is liable to be set aside. Learned counsel

for the respondent No.1-plaintiff referring these judgments

would vehemently contend that this Court cannot interfere with

the findings of the Trial Court. Hence, prayed the Court to

dismiss the same.

16. Having heard the learned counsel for the appellant-

defendant No.3 and learned counsel for the respondent No.1-

plaintiff and also the principles laid down in the judgments

referred (supra), the points that would arise for consideration of

this Court are:

(1) Whether the Trial Court committed an error in entertaining the application filed under Order 39, Rule 1 and 2 read with Section 151 of CPC?

(2) What order?

Point No.(1)

17. Having heard the respective counsel and also the

grounds urged in the appeal memo, it is not in dispute that

defendant No.1, who is the father of the plaintiff had mortgaged

the property in favour of the appellant-bank. It is also not in

dispute that twice the property was mortgaged i.e., in the year

2014 and 2017 and the same is also admitted. Having perused

the plaint also, it is not in dispute that, in the plaint it is

contended that the defendant No.1 would guarantee for availing

the loan by his friends. But, the fact is that the said loan is

treated as NPA is also not in dispute. It is also not in dispute

that subsequent to filing of the suit, the appellant has also

approached the Jurisdictional Magistrate seeking permission to

take possession of the property and order was passed in 2022.

18. The main contention of the respondent No.1-plaintiff

before the Trial Court is that suit schedule property is an

ancestral joint family property of plaintiff and defendant Nos.1

and 2 and the same constitutes a joint family and contend that

the defendant No.1 being an irresponsible person has spent the

entire loan amount on his personnel whims and fancies and has

not spent even a single rupee of the loan amount obtained from

defendant No.3 for his family welfare and also he did not provide

basic needs like food, clothes and education expenses of the

plaintiff since from plaintiff's childhood, the defendant No.1

completely neglected the plaintiff and his family members and

hence, the mother of the plaintiff namely, Smt. Manjula although

an uneducated, in order to take care of the family and for

providing the basic needs, had to look out for a tailoring job and

is taking care and providing all the basic needs of the plaintiff

and defendant No.2 even since the childhood. It is also alleged

that the plaintiff, his mother and minor ward defendant No.2 are

now residing at the suit schedule property only. It is further

contended that the defendant No.1 fraudulently executed the

document in favour of the bank. On perusal of the averments of

the plaint, it is seen that the plaintiff has mentioned that he is

residing at No.709/18-1 and the address given by the defendant

Nos.1 and 2 is also the same. Hence, it is clear that all of them

are residing together. It is also not in dispute that when the

property was mortgaged, both the plaintiff and defendant No.2

were minors.

19. It is also important to note that plaintiff also not

disputes the fact that property was mortgaged in favour of the

appellant-bank and there is no dispute with regard to the

availment of loan by the defendant No.1 from the appellant-

bank. It is also important to note that property originally

belongs to one Javaraiah and he had purchased the same from

BDA and he died leaving behind his children and also no dispute

with regard to the fact that the children have executed the

relinquishment deed in favour of the father of the plaintiff and as

a result, he became the absolute owner and the said property

becomes the separate property of the father of the plaintiff. No

doubt, the Trial Court comes to the conclusion that, when the

grand-father was alive, the plaintiff was born and hence, it

becomes an ancestral property. The very approach of the Trial

Court is erroneous and there is no dispute with regard to the fact

that property of Javaraiah is a self-acquired property and no

doubt, he died intestate, immediately Section 8 of the Hindu

Succession Act attracts and when the property is left by a male

member, the same devolves upon his children. Accordingly,

under Section 8 of the Hindu Succession Act, the property

devolves upon the children and the other children have executed

a relinquishment deed. As a result, it becomes separate property

and there must be existence of three generation to constitute a

property as an ancestral property and merely because he was

born to his father, he will not become the coparcener when the

grand-father was alive.

20. No doubt, the Trial Court relied upon the judgment

of the Apex Court in ROHIT CHAUHAN's case, the same is not

applicable to the facts of the case on hand since, Javaraiah was

not having any ancestral property and the same was his self-

acquired property and the property which the father of the

plaintiff has got becomes his separate property and he had

executed the mortgage deed in favour of the bank and as rightly

pointed out by the learned counsel for the appellant-bank, the

same does not become an ancestral property and the same has

not been considered by the Trial Court.

21. It is also important to note that the appellant has

initiated recovery proceedings under Section 13(4) of SARFAESI

Act and also no dispute that the loan account is treated as NPA.

It is also important to note that, at the time of executing the

mortgage deed in favour of the appellant-bank, the plaintiff as

well as the defendant No.2 were minors and the defendant No.2

is the sister of the plaintiff and the defendant No.1 is none other

than the father of the plaintiff and defendant No.2.

22. Now, this Court would like to refer Section 13 of the

SARFAESI Act, wherein provision is made for enforcement of

security interest i.e., in respect of security interest created in

favour of any secured creditor may be enforced, without the

intervention of the Court or Tribunal, by such creditor in

accordance with the provisions of this Act. This Court also would

like to refer Section 17 of the SARFAESI Act, wherein provision is

made that any person (including borrower), aggrieved by any of

the measures referred to in sub-section (4) of Section 13 taken

by the secured creditor or his authorized officer under this

Chapter, (may make an application along with such fee, as may

be prescribed) to the Debts Recovery Tribunal having jurisdiction

in the matter within forty-five days from the date on which such

measures had been taken.

23. This Court also would like to refer Section 34 of the

SARFAESI Act, wherein there is a bar as to the jurisdiction of the

Civil Court. Section 34 of the SARFAESI Act is very clear that no

Civil Court shall have jurisdiction to entertain any suit or

proceeding in respect of any matter which a Debts Recovery

Tribunal or the Appellate Tribunal is empowered by or under this

Act to determine and no injunction shall be granted by any Court

or other authority in respect of any action taken or to be taken

in pursuance of any power conferred by or under this Act or

under the Recovery of Debts due to Banks and Financial

Institutions Act, 1993.

24. Having perused the provisions of the SARFAESI Act,

Section 13 of the Act provides a right to enforce security

interest, Section 17 contemplates as to the application against

measures to recover secured debts, Section 19 contemplates

right of borrower to receive compensation and costs in certain

cases and so also, Section 34 contemplates with regard to bar of

jurisdiction of the Civil Court while enforcing the security interest

and no injunction can be granted.

25. In the case on hand, relief is sought to restrain the

appellant-bank from taking possession of the property. It is the

claim of the plaintiff that the suit schedule property is an

ancestral property and I have already pointed out that the

property is not an ancestral property and it is a separate

property of the defendant No.1. The plaintiff also filed an

objection before the Jurisdictional Magistrate when an order was

sought for taking possession and the same was rejected and the

same has not been challenged. The loan obtained is also a

secured loan and I have already pointed out that the address

given in the plaint by the plaintiff and the address given by the

defendant Nos.1 and 2 are one and the same. Hence, it is clear

that all of them are residing together and there is a collusion

between the plaintiff and defendant Nos.1 and 2 and the same is

apparent on record. It is also clear that the suit is filed as

offshoot of recovery proceedings initiated by the appellant-bank

herein. Though in the plaint, the plaintiff has contended that the

defendant No.1 was an irresponsible person and misused the

funds, but the fact that all of them are living together is not in

dispute and also no specific instances of bad wises of the

defendant No.1 is stated in the plaint, except stating that he did

not take care of the plaintiff and his family members.

26. The Apex Court also in the judgment in JAGDISH

SINGH's case categorically held that no suit can be initiated

against the bank institution curtailing their right and it is also

specific that any person aggrieved by any order made by the

DRT under Section 17 may also prefer appeal to the Appellate

Court under Section 18 of the Act. Hence, it is clear that the

expression 'any person' under Section 17 of the SARFAESI Act is

of wide import and takes within its fold not only the borrower but

also the guarantor or any other person who may be affected by

action taken under Section 13(4) of the SARFAESI Act.

Therefore, irrespective of the question whether the civil suit is

maintainable or not, under the SARFAESI Act itself a remedy is

provided to such persons so that they can invoke the provisions

of Section 17 of the SARFAESI Act, in case the bank (secured

creditor) adopt any measure including the sale of the secured

assets, on which the plaintiffs claim interest. The Apex Court

also discussed the very scope of Sections 13(4) and 34 of the

SARFAESI Act.

27. Learned counsel for the respondent No.1-plaintiff

also relied upon the judgment of the High Court of Judicature at

Bombay, wherein also the Court has discussed the scope of

Section 9 of CPC and also Sections 13, 17 and 34 of SARFAESI

Act, wherein a discussion was made that Civil Court would have

jurisdiction, that too, when it is prima facie apparent from the

face of record that the relief claimed, is incapable of being

decided by the DRT under Section 17 of the DRT Act, 1993 read

with Sections 13 and 17 of the SARFAESI Act. The judgment of

the Apex Court in JAGDISH SINGH's case does not lay down

that DRT is competent to pass declaratory relief or a decree of

ownership or partition or separate possession of Hindu Undivided

Family property or an ancestral property. Here is also a case of

secured creditor and the suit is barred under Section 34 of the

SARFAESI Act,

28. This Court would like to rely upon the recent

judgment of the Apex Court in MRS.LEELAMMA MATHEW VS.

M/S. INDIAN OVERSEAS BANK AND OTHERS reported in

2022 LIVE LAW (SC) 973, wherein the Apex Court has held

that Section 34 shall be applicable only in a case where the Debt

Recovery Tribunal and/or Appellate Tribunal is empowered to

decide the matter under the SARFAESI Act and also held that the

jurisdiction of the Civil Court is absolutely barred, except in case

the plaintiff is able to show fraud or misrepresentation.

29. This Court also would like to refer the judgment of

the Madras High Court in SUMATHI VS. SENGOTTAIYAN AND

OTHERS reported 2010 (3) CTC 53, wherein it is held that

plaintiff may institute a suit for partition before the competent

Civil Court but she cannot lawfully challenge the proceedings

initiated by the secured creditor under the SARFAESI Act, before

the Civil Court as there is a clear bar under Section 34 of the

SARFAESI Act. Section 34 of the SARFAESI Act imposes a bar

on the Civil Court to grant any relief of injunction with respect to

any action taken in pursuance of the power conferred upon the

SARFAESI Act. Therefore, the Trial Court has no authority to

entertain the prayer for injunction sought for by the plaintiff as

against the secured creditors, who had already initiated

proceedings under the SARFAESI Act.

30. This Court also would like to rely upon the judgment

of the Madras High Court in INDIAN BANK, RAJAPALAYAM,

THROUGH ITS CHIEF MANAGER, THENKASI ROAD,

RAJAPALAYAM VS. MINOR R. SAJANITHA, REPRESENTED

BY NEXT FRIEND AND GRAND FATHER MRS. BHIMRAJA

AND OTHERS reported in C.R.P. (NPD)(MD) NO.46 OF 2015

dated 11.01.2019, wherein the Court has discussed with regard

to initiation of suit and observed that at the instigation of

respondents 1 and 2, the plaintiffs have filed this vexatious suit

claiming partition of the schedule properties. Since the petitioner

Bank has taken action over the secured assets under the

SARFAESI Act the plaintiffs are barred from making any claim in

the plaint under Section 17 of the Act before this Court and they

have to file only appeal before the Debt Recovery Tribunal under

Section 17 of the Act. The Court also further discussed that DRT

cannot determine a partition suit and that an injunction order

can be granted by the DRT Court and only the Civil Court has

jurisdiction to entertain a partition suit and the Civil Courts have

no jurisdiction to decide any issues under the SARFAESI Act.

31. This Court also would like to rely upon the judgment

in SRI CHANDRU AND ANOTHER VS. K. NAGARAJAN in

A.S.NO.277 OF 2008 dated 12.03.2012, wherein an

observation is made in Para No.4 of the judgment that the sole

intention of the plaintiffs is to defeat the lawful claim of the 5th

defendant and an observation is also made in Para No.17

referring the judgment of the Apex Court in DHULABHAI VS.

STATE OF MADHYA PRADESH reported in AIR 1969 SC 78,

the Civil Court indisputably has the jurisdiction to try a suit. If

the suit is vexatious or otherwise not maintainable action can be

taken in respect thereof in terms of the Code. In Para Nos.30

and 31 of the judgment, the Apex Court taken note of the similar

circumstances that suit is filed by the plaintiffs, who are aged 27

and 32 years and the plaintiffs were born in 1981 and 1975 and

they were minors as in the case on hand. The 1st defendant,

being the father, has power to deal with the properties by

creating security by way of equitable mortgage for

business/family necessity. The 1st defendant, being the

Manager/kartha of the family, represents all the family members

in all transactions.

32. This Court also would like to rely upon the judgment

of the Delhi High Court in RAJAT PANGARIA VS. STATE BANK

OF BIKANER AND JAIPUR AND OTHERS reported in (2008)

141 COMP CAS 323 (DRAT), wherein also the Delhi High Court

held with regard to recovery of loan taken from the bank by the

HUF and power of karta to contract debts for benefit of estate,

binding both on minors and adults in family, karta mortgaging

undivided share of his minor son for family business and for legal

necessity, minor after attaining majority cannot challenge

mortgage of his undivided share. The appellant could challenge

the mortgage with regard to his share only on establishing that

the mortgage had been created without legal necessity or that it

was tainted with illegality or immorality. The mortgage was

binding on the appellant.

33. Having considered the principles laid down in the

judgments referred (supra) and also taking into note of the facts

of the case on hand, it is not in dispute that the plaintiff and

defendant No.2 were minors at the time of availing loan by the

defendant No.1. Though, in the plaint, it is pleaded with regard

to the fraud played but, no instances are stated with regard to

the fraud, except stating that the defendant No.1 was not taking

care of the plaintiff and his family members.

34. The judgment of the Apex Court in ELECTROSTEEL

CASTINGS LIMITED VS. UV ASSET RECONSTRUCTION

COMPANY LIMITED AND OTHERS reported in (2022) 2 SCC

573 is also very clear that, if the loan transaction is fraudulent,

then a person can invoke the jurisdiction of the Civil Court and

mere mentioning and using the word "fraud"/"fraudulent", held

that it is not sufficient to satisfy the test of "fraud"- a

pleading/using the word "fraud"/"fraudulent" without any

material particulars as required in terms of Order 6, Rule 4 CPC,

would not tantamount to pleading of "fraud" and considering the

pleadings and the averments in the suit, held that the allegations

of "fraud" were made without any particulars and only with a

view to get out of the bar under Section 34.

35. Hence, mere statement that the defendant No.1 was

not taking care of the family does not constitute fraudulent act

and the same is not enough to come to the conclusion that the

defendant No.1 committed fraud on the family and the Court has

to take note of the facts of each case while granting the relief

and mere filing of the suit and seeking the relief of injunction is

not enough to grant the discretionary relief as observed in

ELECTROSTEEL CASTINGS LIMITED's case.

36. Having perused the material on record, admittedly

the plaintiff and defendant No.2 were minors at the time of

availing loan by the defendant No.1 and though he contends that

loan is taken for the benefit of his two friends, the fact that he

stood as guarantor in respect of the said loan is not in dispute

and the property is mortgaged is also not in dispute. The fact

that the plaintiff and the defendant Nos.1 and 2 are living

together and using common kitchen is also not in dispute, but

filed the suit to prevent the appellant-bank from recovering the

loan. Hence, there is a bar under Section 34 of the SARFAESI

Act and in order to avoid and drag the recovery proceedings

initiated by the appellant-bank with regard to the property which

was pledged with the appellant-bank by the defendant No.1, the

present suit is filed by the plaintiff colluding with defendant

Nos.1 and 2 and the same is nothing but offshoot of recovery

proceedings. Hence, the Trial Court failed to take note of this

fact into consideration while granting an order of injunction and

failed to take note of the fact that the plaintiff can invoke the

provisions of Section 17 of the SARFAESI Act, if there is any

grievance, since the proceedings are initiated under Section 13

of the SARFAESI Act, in order to recover the secured debt.

37. When such being the case, having considered the

principles laid down in the judgments referred (supra), it is clear

that, with an intention to stall the proceedings initiated by the

appellant-bank, an application is filed and the Trial Court

erroneously comes to the conclusion that the plaintiff has made

out a prima facie case, balance of convenience and hardship in

his favour without considering the interest of the appellant-bank

which provided loan to the defendant No.1 and the same is a

public fund and the said secured debt is protected under the

SARFAESI Act and the proceedings are also initiated under

Section 13 of the SARFAESI Act. Hence, the Trial Court

committed an error in granting an order of temporary injunction

and it requires interference of this Court. Accordingly, I answer

point No.(1) as 'affirmative'.

Point No.(2)

38. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The impugned order dated 19.03.2022 passed on I.A.No.2 filed under Order 39, Rule 1 and 2 read with Section 151 of CPC in O.S.No.870/2020, allowing I.A.No.2 is hereby set aside.

Sd/-

JUDGE

ST