Orissa High Court

Smt.Manju Jajodia vs M/S.Bajaj Finance Ltd. And Others on 21 February, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                           FAO No.416 of 2022
(From the Order dated 29th September 2022 passed by the 3rd Addl.
District Judge, Cuttack in I.A.No.01 of 2022 arising out of RFA No.439
of 2022)
                                ----------

Smt.Manju Jajodia                                  .......          Appellant

                                          Versus

M/s.Bajaj Finance Ltd. and others                  ........         Respondents


Advocate(s) appeared in this case :-
        For Appellant               :       Mr.R.K.Mohanty, Sr.Advocate
                                            Mr.B.Bhuyan, Advocate

        For Respondents             :       Mr.R.C.Panigrahi, Advocate
                                            (for Respondent Nos.1 & 2)
                                            Mr.G.B.Dash, Advocate
                                            (for Respondent Nos.3 & 4)

                     CORAM : JUSTICE B.P. ROUTRAY

                              JUDGMENT

st 21 February, 2023

B.P. Routray,J.

1. Heard Mr.R.K.Mohanty, learned Senior Advocate along

with Mr.B.Bhuyan, learned Advocate for the Appellant and

Mr.R.C.Panigrahi, learned counsel for Respondent Nos.1 and 2 (Bank)

as well as Mr.G.B.Dash, learned counsel for Respondent Nos.3 and 4.

2. Present appeal by the original plaintiff is directed against

order dated 29th September, 2022 of the 3rd Addl. District Judge, Cuttack

in I.A.No.01 of 2022 (arising out of R.F.A.No.439 of 2022), wherein

learned First Appellate Court has refused the prayer for temporary

injunction of the present Appellant.

3. Present Appellant, namely Manju Jajodia and Respondent

No.3, namely Pawan Kumar Jajodia are wife and husband. Initially the

suit schedule 'A' property was purchased by the wife on 16th August,

1997 by virtue of a Registered Sale Deed. The same was again

purchased by the husband from the wife on 14th August, 2006.

Subsequently, the husband took loan of Rs.2,81,25,000/- from the

Respondent-Bank in the year 2016 by creating equitable mortgage in

respect of the same property, i.e. suit schedule 'A' property. The loan

amount was disbursed in favour of the husband on 22nd March, 2016.

Then C.S.No.594 of 2017 was filed by the wife against the husband

alleging fraud in getting execution of the sale deed on 14th August, 2006

in favour of the husband. In the said suit, the bank was not impleaded as

a party. The same was decreed in favour of the wife on 18th July, 2018.

4. In the meantime, since the husband was defaulted in

repayment of loan amount, bank proceeded against the husband under

the Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002. Then another suit i.e.

C.S.No.226 of 2022 was filed by the wife impleading the bank as well

as the husband with allegations of fraud to protect the property and to

protect her from dispossession of the property along with other prayers.

On the objection of the bank, the learned Civil Judge (Sr.Division),

Cuttack rejected the plaint under Order 7 Rule 11 of the C.P.C. keeping

in view the bar under prescribed under Section 34 of the SARFAESI

Act, 2002.

5. The order of the learned Civil Judge dated 2nd April, 2022

rejecting the plaint was questioned in RFA No.439 of 2022 by the wife

before learned Addl. District Judge. In RFA No.439 of 2022, I.A.No.01

of 2022 was filed by the wife praying for temporary injunction under

Order 39 Rule 1 & 2 of the C.P.C. The same was refused by learned

Additional District Judge in the impugned order dated 29th September

2022, which is the subject matter of challenge before this Court in the

present appeal.

6. Learned 3rd Additional District Judge held that the

Appellant has failed to bring the prima facie case in her favour to get

such relief of injunction pending appeal. As such, the prayer was

refused.

7. On the backdrop of the afore-stated facts, it remains

undisputed that on the date of availing the loan from the bank by

creating equitable mortgage over the property in question, the husband

(present Respondent No.3) was its' owner. It is alleged that the husband

and the bank authorities have played fraud upon the wife (plaintiff) by

tampering with the nature of property as 'homestead' instead of

'Jalasaya' and further, the husband has fraudulently got the property

executed in his name through a sale deed in the guise of execution of

Power of Attorney. But it remains undisputed that all such objections

were raised only in the year 2017, i.e. after availing the loan by the

husband.

8. In the present appeal, this Court is concerned with refusal

of prayer of the plaintiff by the First Appellate Court in exercise of

jurisdiction under Order 39 Rule 1 & 2 of the C.P.C. It is true that for

the purpose of exercising jurisdiction under Order 39 Rule 1 & 2 C.P.C.,

protection of the property during pendency of the suit or appeal is a vital

consideration. The Supreme Court in the case of Dev Prakash and

another v. Indra and others, reported in AIR 2017 SC 3608, as relied

on by the plaintiff-Appellant, have held at para-14 as follows:

"14. In the pre-ponderant factual backdrop, as outlined hereinabove, we are of the view that not only the reasons endeavoured to be cited in the impugned in justification of the direction for public auction of the suit property lack in persuasion, those are apparently speculative and illogical, to say the least. The direction for disposal of the suit property by public auction, in the facts and circumstances of the case, clearly militates against the fundamental precept of preservation of subject-matter of any dispute pending adjudication in a court of law, more particularly relatable to a civil litigation, to appropriately decide on the rights of the parties for administering the reliefs to which they would be entitled eventually on the culmination of the adjudication. As it is, the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. We do not wish to burden this order by the decisions of this Court on the issue except referring to the one in Maharwal Khewaji Trust (Regd), Faridkot v. Baldev Dass, AIR 2005 SC 104 , wherein it has been underlined that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property to be changed, which may include alienation or transfer thereof leading to loss or damage been caused to the party who may ultimately succeed and which would as well lead to multiplicity of proceedings. Judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse."

9. Along with consideration for protection of property, the

principles relating to prima facie case, balance of convenience and

irreparable loss are also required to be satisfied in the matter of grant of

injunction. In the case at hand, the admitted position remains that at the

time of creating equitable mortgage for availing the loan, the ownership

of the property entirely remains with Respondent No.3, the husband and

from 2006 till availing the loan in 2016, no such objection regarding

fraud was raised by the wife. Therefore, the action initiated by the wife

and its timing is viewed with suspicion and the learned Additional

District Judge has rightly observed against her in the impugned order.

10. From the impugned order, it further reveals that the

plaintiff has approached the Debts Recovery Tribunal under Section 17

of the SARFAESI Act, 2002 in Securitization Application No.18 of

2022 praying for reliefs in her favour on the ground of fraudulent

transactions. It is admitted at the Bar that till date no order has been

passed on said application of the plaintiff by the Debts Recovery

Tribunal. Law is no more res integra in respect of the powers of the

Debts Recovery Tribunal under Section 17 of the SARFAESI Act. The

Supreme Court in the case of Allahabad Bank, Calcutta v. Radha

Krishna Maity and others, reported in AIR 1999 SC 3426, have held as

follows:

"7. In a recent decision of this Court under this Act in Industrial Credit and Investment Corpn. of India Ltd. v. Grapco Industries Ltd. (1994) 4 SCC 710, this Court considered the provisions of the

Act and the powers of the Tribunal. The question that arose in that case was whether the Tribunal could pass an order granting ex parte injunction. In that context, reference was made to Section 22 of the Act. This Court observed that the Tribunal's powers were (except as stated in sub-section (2)), wider than the powers of a civil court and the only limitation was that it should observe the principles of natural justice. Wadhwa, J. stated as follows: (P.716, para 11) "We, however, do not agree with the reasoning adopted by the High Court. When Section 22 of the Act says that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, it does not mean that it will not have jurisdiction to exercise powers of a court as contained in the Code of Civil Procedure. Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice."

After contrasting the provisions of the Act with the restrictions imposed upon certain other tribunals under other statutes, this Court observed: (P.717) "It will, thus, be seen that while there are no limitations on the powers of the Tribunal under the Act, the legislature has thought fit to restrict the powers of the authorities under various enactments while exercising certain powers under those enactments.... Further, when power is given to the Tribunal to make an interim order by way of an injunction or a stay, it inheres in it the power to grant that order even ex parte, if it is so in the interest of justice...."

xxx xxx xxx

9. The scope and the extent of the powers of the Tribunal are mainly referred to in sub-clause (1) of Section 22 of the Act which says that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure but shall be guided by the principles of natural justice. As stated in Grapco by this Court, the Tribunal can exercise powers contained in the Code of Civil Procedure and can even go beyond the Code as long as it passes orders in conformity with the principles of natural justice. We may add that Section 19(6) does not in any manner limit the generality of the powers of the Tribunal under Section 22(1). It merely states that certain types of injunction or stay orders may be passed by the

Tribunal. It is to be noticed that sub-clause (6) of Section 19 starts with the words -- "The Tribunal may make an interim order ...." The provision is an enabling provision and merely states that certain types of injunction or stay orders mentioned therein can be passed by the Tribunal but such an enumeration cannot, in our opinion, be deemed to be exhaustive nor restricting the Tribunal's powers only to those types of injunction or stay orders. The width and amplitude of the powers are to be gathered from Section 22(1) as stated in Grapco. In addition, Rule 18 enables the Tribunal to pass orders to secure the ends of justice.

10. Thus, we are of the view that the Tribunal certainly has powers to pass other types of injunction orders or stay orders apart from what is stated in Section 19(6). It may issue notice and after hearing the opposite side, pass orders. Or, it may pass ad interim orders without hearing the opposite side and then give a subsequent hearing to the opposite party and pass final orders. We may also point out that Section 22(2) too does not limit the general powers referred to in Section 22(1). All that Section 22(2) states is that in respect of the type of applications falling under (a) to (h), the Tribunal has only powers as are vested in a civil court."

11. Thus the DRT having laced with ample power to grant

interim relief, the wife is not deprived of seeking appropriate interim

relief in the Tribunal. In the facts of the present case, when it remains

undisputed that on the date of creation of equitable mortgage,

Respondent No.3 was the absolute owner of the property having all

interest on the same and the allegations of fraud have been levelled by

the wife subsequent to that, the prima facie case does not tilt in favour of

the plaintiff to get the interim relief. As such, the finding of learned First

Appellate Court that no prima facie case is there in favour of the original

plaintiff to get such relief is confirmed by this Court. However, since the

appeal preferred by the plaintiff against the order of the learned Civil

Judge is pending for adjudication before the First Appellate Court, with