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TMI Blog2025 (3) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin Thirty (30) days in case an ad interim ex parte injunction is granted. The said provision does not necessarily mean that either while granting or refusing ad interim injunction, independent reasons for such grant or refusal is not required to be given. It is well-settled that reason is the soul of any judgment and any judicial order without cogent reasons is, on the face of it, bad in law. The order impugned herein suffers from such malady. Whether a triable issue has been made out by the plaintiff? - HELD THAT:- It transpires from the purported declaration/letter issued by Hari Ram along with the appellant, which is produced by the Bank, that the Bank had obtained a magisterial declaration from the owners, including the appellant. However, such declaration has not been produced by the respondent no. 1-Bank, thereby constraining the court to draw adverse inference against the Bank on such count. That apart, the appellant has alleged in his pleadings that the documents produced by the Bank are forged and manufactured insofar as any continuing guarantee having been granted by the appellant is concerned - sufficient doubt as to be veracity of the Bank's claim of the appellant b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Officer thereof. Hence, the necessary ingredients of Order XXIX Rule 1 are not satisfied. There is no reason as to why the principle incorporated in Order XXIX, although applicable in terms to a suit, should not also be borrowed in connection with an application filed in an appeal arising out of a suit.
Conclusion - i) The refusal of the ad interim injunction by the Trial Court was unjustified due to the lack of reasons. ii) The Civil Court has jurisdiction to entertain the suit and grant the reliefs sought, as the principal reliefs fall outside the DRT's jurisdiction. iii) The appellant had established a prima facie case for an injunction, with the balance of convenience and potential irreparable harm favoring the appellant.
Application disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 24, 2024, issued during pendency of the suit. Till date, no measure under Section 13(4) of the SARFAESI Act has been taken by the defendant no.1/respondent no.1-Bank to the knowledge of the appellant and, as such, the appellant does not have any scope to approach the Debts Recovery Tribunal (DRT) under Section 17 of the SARFAESI Act. Hence, the Civil Court had full jurisdiction to grant the injunction as sought by the appellant. 6. Learned counsel for the appellant places reliance on an unreported judgment of the Supreme Court in the matter of Central Bank of India and Another v. Smt. Prabha Jain and Others [Civil Appeal No.1876 of 2016], for the proposition that the jurisdiction of the Civil Court is not ousted as regards an independent suit against the bank in the context of the provisions of the RDB Act, 1993. It was further held there that in a suit challenging the validity of a sale deed, the Debts Recovery Tribunal is not permitted to examine such question. It was further observed that the Tribunal does not have jurisdiction to decide questions which fall within the exclusive domain of the Civil Court and as such a civil suit in that regard is not barred by the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely devoid of reasons. After narrating the respective contentions of the parties, the learned Trial Judge, in a single sentence, held that considering the nature of the case, it appeared to him that in this nature of case, injunction should not be granted without hearing the other side. Under Order XXXIX Rule 3-A, it is incumbent upon the court to record its reasons for its inability to dispose of an injunction application within Thirty (30) days from the date on which ex parte injunction is granted without giving notice the opposite party. However, such reasons are confined to the inability of the court to dispose of the application within Thirty (30) days in case an ad interim ex parte injunction is granted. The said provision does not necessarily mean that either while granting or refusing ad interim injunction, independent reasons for such grant or refusal is not required to be given. It is well-settled that reason is the soul of any judgment and any judicial order without cogent reasons is, on the face of it, bad in law. The order impugned herein suffers from such malady. 13. Coming to the merits of the matter, the court, by way of prime facie case, is only required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the Bank against the appellant, the appellant might suffer irreparable injury. As a whole, the balance of convenience and inconvenience is, thus, in favour of the appellant since if the suit property is disposed of in favour of third parties or the appellant is ousted from the suit property prior to the disposal of the suit, it would affect the plaintiff/appellant irreversibly, whereas the suffering of the Bank would not be of such magnitude even if its action for recovery of the loan is deferred. 18. Hence, all the ingredients for grant of ad interim injunction are satisfied in the present case. 19. With regard to the maintainability of the suit, it is an admitted position that the suit was filed on November 5, 2024, whereas the first notice under Section 13(2) of the SARFAESI Act was received by the appellant only subsequently, on November 6, 2024. In any event, the said first notice was waived by the respondent no.1-Bank by issuance of a subsequent notice under the self-same provision on December 24, 2024, that is, after the filing of the suit. Hence, at the juncture when the suit was filed and the ad interim prayer of injunction was moved, no notice even under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved by any of the measures taken by the secured creditor/Bank under Section 13(4), the limited scope of consideration by the Tribunal is as enumerated under Section 17(2), which is to consider whether any of the measures referred to in Section 13(4) are in accordance with the provisions of the Act and the Rules made thereunder. The substantive relief of declaration of title and/or the issue of authenticity and legal validity of the documents pertaining to the loan cannot be adjudicated upon by the Tribunal under the said provision. 26. Under sub-section (3) of Section 17, the Tribunal, after examining the facts and circumstances on the evidence before it, may come to the conclusion that any of the measures referred to in sub-section (4) of Section 13 are not in accordance with the provisions of the Act and the reliefs to be granted by the Tribunal are entirely premised on such limited consideration. Under Clauses (i) and (ii) of sub-section (4-A) of Section 17, the Tribunal can at best look into the claims of tenancy or lease-hold rights, but cannot decide any question of title or validity or authenticity of the foundational documents of the loan itself and/or grant any declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal to decide such issue. As such, the ratio laid down in Prabha Jain's case (supra), cited by the plaintiff/appellant is applicable to the present case. 32. The injunction sought by the plaintiff is not on the strength of any substantive right conferred by the SARFAESI Act, which might have empowered the Tribunal to decide such issue, but from the general law as well as the Transfer of Property Act, which confers title on the appellant to the extent of 50% in respect of the immovable property which is the subject-matter of the suit, by virtue of a registered deed of conveyance. Hence, the relief sought by way of injunction is a relief sought consequent to the principal relief of the suit and not an offshoot of any right under the SARFAESI Act. 33. We cannot also lose sight of the fact that the plaintiff/appellant has no right to approach the Tribunal under Section 17 of the SARFAESI Act before any measure is taken by the Bank under Section 13(4) of the SARFAESI Act. Such an approach at this juncture would be premature and, hence, the suit and the prayer for injunction are very much maintainable before the Civil Court. Apart from any remedy before the Tribunal on such cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 of 2025 is allowed on contest, thereby setting aside the impugned order bearing Order No.2 dated November 5, 2024 passed by the learned Judge, VIIth Bench, City Civil Court at Calcutta in Title Suit No.1804 of 2024. 38. The respondent no.1-Bank and its men, agents and officers are hereby restrained by an order of ad interim injunction from dispossessing the plaintiff/appellant and his men and agents from the suit property as well as from transferring, alienating and/or creating third-party rights and/or interest in respect of the 50% ownership right of the plaintiff in the suit property till disposal of the injunction application pending in the trial court. 39. The respondent no.1 shall file its written objection to the injunction application in the Trial Court, if not already filed, within three (03) weeks from date. It is expected that the learned Trial Judge shall dispose of the injunction application, upon giving adequate opportunity of hearing to both sides, as expeditiously as possible thereafter, as far as the business of the said court permits. 40. It is, however, made clear that the findings and observations made in this order have been arrived at for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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