IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-09-2006 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE M. JAICHANDREN O.S.A.NOs.294 & 295 of 2005 and C.M.P.NOs.19036 & 19037 of 2005 The Senior Manager, Canara Bank, Park Town Branch, Chennai 600 003. .. Appellant in both OSAs Vs. 1. A Pukraj, S/o.D. Anraj 2. A. Halith Ahmed, Proprietor, M/s. Afsal Steels, No.39, Malayappan Street, Chennai 600 001. .. Respondents in both OSAs
Appeals filed under Order 36 Rule 11 and Clause 15 of the Letters Patent against the common order of the learned single Judge made in O.A.No.888 of 2004 and Appln.No.4236 of 2004 dated 22.11.2005.
For Appellant : Mr.S. Sampath Kumar
Senior Advocate for
M/s. Sampath Kumar & Associates
For Respondent-1: Mr.M. Sriram
Mr.V. Srikanth, AGP (on court notice)
COMMON JUDGMENT
P.K. MISRA, J
Defendant No.1 in C.S.No.837 of 2004 has filed these appeals against the common order dated 22.11.2005 in O.A.No.888 of 2004 and Appln.No.4236 of 2004.
2. The plaintiff / Respondent No.1 has filed the suit for declaration that the alleged equitable mortgage by deposit of title deeds said to have been created by the plaintiff on 3.10.2000 in favour of the first defendant in respect of the suit property to secure the loan availed by the second defendant from the first defendant as illegal, null and void, and for injunction restraining the first defendant from interfering with the peaceful possession of the suit property and mandatory injunction directing the first defendant to handover the possession of the three rooms sealed by them on 14.9.2004. The disputed property has been described in the schedule.
3. The substance of the claim of the plaintiff / Respondent No.1 is to the effect that the disputed property has fallen to the share of the plaintiff in a partition took place between himself and other co-sharers. The plaintiff in connection with some business transaction with Defendant No.2, given the original documents relating to disputed property to the second defendant. The second defendant had also obtained signatures in some blank papers and printed forms. Subsequently, the second defendant had returned the deed of partition, but had not returned the original patta. While the matter stood thus, the plaintiff received a letter from the first defendant Bank regarding his liability as a guarantor in respect of the loan obtained by the second defendant from the first defendant Bank. The plaintiff had informed the Bank at that stage that he has not executed any guarantee deed nor any letter evidencing deposit of title deeds, but the bank had ignored such representation and sent notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, hereinafter referred to as “the Act”. On receipt of such notice, as an immediate relief, the plaintiff filed W.P.No.24279 of 2003 challenging the validity of the Act. Such writ petition along with many other similar writ petitions were disposed of by a Division Bench on 29.4.2004. In the said judgment, the Division Bench has observed that the petitioners can file their objections within 15 days from the date of receipt of the order which should be considered by the Bank. Even though such order was received by the counsel for the plaintiff on 25.8.2004, due to delay in communication, the objection could not be filed within 15 days, but was filed on 17.9.2004. However, the bank taking advantage of non-receipt of the objection within 15 days, passed an order under Section 13(4) of the Act on 14.9.2004 and on the same day the Authorised Officer of the first defendant locked three rooms including the kitchen of the plaintiff. It is averred by the plaintiff that no equitable mortgage had been created by him and, therefore, the bank had no jurisdiction to proceed under the Act. On the basis of the above pleadings, the suit has been filed for the reliefs already indicated.
4. Along with the suit the plaintiff filed Original Appln.No.888 of 2004 under Order 39 and Rule 1 & 2 CPC for issuing an interim injunction restraining the first defendant bank from interfering with the peaceful possession and enjoyment of the applicant’s property. The plaintiff also filed Appln.No.4236 of 2004 under Order 39 and Rule 1 & 2 CPC for mandatory injunction directing the first defendant bank to remove the seal of the premises mentioned in the schedule.
5. A written statement has been filed by the first defendant bank denying the allegations in the plaint and it has been stated therein that equitable mortgage has been created and the plaintiff stood as guarantor in respect of the loan obtained by the second defendant. The question of jurisdiction of the Civil Court is also raised. Objection was also filed in the injunction applications.
6. Under the impugned order, the learned single Judge has passed an order of ad-interim injunction directing the bank to restore possession and also forbearing the bank from interfering with the possession in respect of rest of the property. Such order has been challenged in these two appeals.
7. Learned Senior Counsel appearing for the appellant has submitted that the learned single Judge without taking into consideration the various submissions made by the appellant has abruptly passed the order. Learned Senior Counsel further submitted that while considering the question of grant of injunction, the court is required to find out the existence of prima facie case, irreparable loss to be caused to the applicant applying for injunction, if injunction is not granted, as well as balance of convenience. It is submitted by him that in the present case the learned single Judge without analysing these aspects and even without considering the question of irreparable loss had passed the order. Learned Senior Counsel has also submitted that Civil Court has no jurisdiction in such matters. In particular, learned Senior Counsel has submitted that the plaintiff himself has filed a writ petition earlier, wherein the plaintiff had admitted about the loan transaction and the fact that the plaintiff was a guarantor, but suddenly a different stand was taken by the plaintiff in the suit and without considering such aspect, the learned single Judge has passed the order of injunction in a laconic manner without much discussion.
8. Learned counsel appearing for the first respondent has supported the order stating that it is a fit case where injunction should be granted.
9. While the matter was pending, the Division Bench had called upon the Government Counsel to produce a report from the Sub-Registrar’s Office relating to some of the documents. Such report has been produced in a sealed cover along with the original register.
10. Law is well settled that while considering the question of injunction the Court is required to find out the existence of prima facie case, irreparable loss to be caused to the applicant if injunction is not granted as well as the question of balance of convenience. (See AIR 1993 SC 276 (DALPAT KUMAR & ANOTHER v. PRAHLAD SINGH & OTHERS). While considering the question of prima facie case, the plaintiff is not required to prove his case to the hilt. However, while considering such question, the Court is required to apply its mind to various materials on record to come to any conclusion as to whether prima facie case is established or not.
11. In the present case, the learned single Judge after summarising the contentions of the rival parties has simply observed that prima facie case is established without referring to several documents on record, including the affidavit filed by the plaintiff in the writ petition, which had been filed earlier. Though the Court is not required to pass a detailed order relating to existence of prima facie case, the order should indicate that relevant averments and documents have been scanned. Unfortunately, in the present case, we do not find any such effort has been made.
12. Apart from the above, the learned single Judge has not at all considered the question of irreparable injury and similarly there is no discussion regarding the question of balance of convenience, even though in one sentence the learned single Judge has observed that balance of convenience is in favour of the plaintiff. The question as to whether the Civil Court has jurisdiction or not seems to have been brushed aside.
13. Since the matter has not been considered in its proper perspective, we feel it in the interest of justice to set aside such order and remit the matter to the learned single Judge for fresh consideration. The report furnished by the Sub-Registrar is also required to be placed before the learned single Judge, who may consider such report with a view to find out about the prima facie case. In case it is felt to pass an order of mandatory injunction directing release of the property, the question of directing the plaintiff to furnish alternative security may also be considered. The fact that the order has been set aside and the matter has been remitted to the learned single Judge for fresh consideration should not be construed as expressing any opinion regarding the merits of the contentions of both the parties relating to existence of prima facie case or otherwise or irreparable loss or balance of convenience and the learned single Judge is free to come to any conclusion in accordance with law. It is reiterated that the present order should not be construed as reflection of opinion of the Division Bench in any manner. Since the matter is urgent, the learned single Judge is requested to consider the matter afresh as expeditiously as possible, preferably within a period of eight weeks from the date on which the matter is listed.
14. In the result, with the above observations, the appeals are allowed and the matter is remitted to the learned single Judge for fresh consideration in accordance with law. Consequently, the connected miscellaneous petitions are closed. There would be no order as to costs.
dpk
To
1. The Sub Assistant Registrar,
Original Side,
High Court, Madras.
2. The Record-keeper,
V.R. Section,
High Court, Madras.
Office to Note:
Office is directed to produce the
documents before the learned single
Judge when the matter is listed.
dpk
[VSANT 8211]