Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK F.A.O. NO. 176 OF 2009 From an order dated 13.4.2009 passed by the learned Civil Judge (Senior Division) Ist Court, Cuttack in I.A. No. 140 of 2009 arising out of C.S. No. 181 of 2009. ------------ Deepak Sikaria & another …… Appellants -versus- Shyam Sundar Sikaria & others …… Respondents For Appellants : M/s. B.Routray, Sr. Advocate, Sidhartha Mishra, S.Das & J.Acharya. For Respondents : Mr. Gopabandhu Dash. (For Respondents 2 & 3) ------------------ Decided on 08 .04.2013 ------------------- P R E S E N T : THE HONOURABLE MR. JUSTICE M. M. DAS -------------------------------------------------------------------------------------- M.M. DAS, J. This appeal has been preferred against the order dated 13.4.2009 passed by the learned Civil Judge (Senior Division), Ist Court, Cuttack in I.A. No. 140 of 2009, which was an application
Facts
filed by the appellants-plaintiffs before the court below in C.S. (I) No. 181 of 2009 under Order 39, Rules 1 and 2 C.P.C. The aforesaid suit has been filed by the appellants against the respondents for partition of the suit property by carving out the shares of the plaintiffs and the defendant no.1, who are the co-owners and for a decree restraining 2 the defendants-respondents 2 and 3 from recovering the debt of defendant no. 1 by putting into sale the 2/3rd share of the plaintiffs over the suit property. 2. The appellants, as plaintiffs, pleaded that the suit property was acquired in the names of defendant no. 1 and the plaintiffs by the defendant no. 1, when they were minors and, as such, the said property is co-owned by them along with the defendant no.1. The defendant no. 1 availed the loan from the State Bank of India - defendant nos. 2 and 3, by mortgaging the disputed property and due to non-payment of the said dues, the bank proceeded for realization of the debt from the defendant no.1 under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short, ‘the RDDB Act’) by approaching the Debts Recovery Tribunal and ultimately for realization of the debt put the property to sale. The further case of the appellants- plaintiffs is that as the property is co-owned and has been mortgaged without the consent of the plaintiffs, who are neither the borrowers nor the guarantors, when they were minors, their share in the suit property is not liable for sale. Along with the plaint, an application under Order 39, Rules 1 and 2 C.P.C. was filed with a prayer to restrain the defendants from effecting sale/transfer of the suit property during pendency of the suit, which was registered as I.A. No. 140 of 2009. The defendants-respondents 2 and 3 filed their objection to the said application, inter alia, stating 3 that since the matter is in progress before the D.R.T. in a recovery proceeding, the civil court has no jurisdiction to entertain the suit and, as such, the application for injunction is not sustainable. 3. The learned trial court after hearing the plaintiffs and the defendants 2 and 3 passed the impugned order took note of the contentions made before it by the respondents 2 and 3 to the effect that the D.R.T., Cuttack in the recovery proceeding filed by the Bank, by order dated 10.12.2001 has granted a recovery certificate for Rs. 1,06, 62, 968/- with interest. On the basis of the said certificate of the Presiding Officer, D.R.T., Cuttack, the suit property has been attached by the Recovery Officer. Though the defendant no. 1, who is the borrower filed application for setting aside the certificate, but the same was dismissed. The defendant no. 1 also filed W.P.(C) No. 5482 of 2003 before this Court challenging the order of the Presiding Officer, wherein this Court granted liberty to the defendant no. 1 to file appeal before the D.R.A.T. under section 20 of the RDDB Act. The defendant no. 1 also filed an appeal before the D.R.A.T. wherein, he was directed to deposit a sum of Rs. 2.00 lakhs. But, as he did not deposit the said amount, the appeal was dismissed. Against such order, the defendant no. 1 preferred W.P. (C) No. 10310 of 2003 which was dismissed by this Court. In view of such facts, the certificate granted by the D.R.T., Cuttack has become final. However, the plaintiffs at the instance of the defendant no. 1 in order to create 4 obstruction in execution of the certificate also filed objection before the D.R.T., Cuttack as well as W.P. (C) No. 7132 of 2007 before this Court which has also been dismissed. Being unsuccessful in all corners, they have filed the present suit only to obstruct realization of the debt under the recovery certificate. Noting the case of the respondents nos. 2 and 3, the learned trail court proceeded in the impugned order by recording that grant or refusal to grant injunction depends on the three well established principles, i.e., whether the
Legal Reasoning
petitioners have made out a prima facie case; whether the petitioners would suffer irreparable injury; and whether the balance of convenience lies in their favour. 4. The learned trial court thereafter recorded that the burden to show the existence of these three necessities lies on the person, who claims injunction, and, such person must approach the court with clean hands. The court has also to see whether the claim is bona fide and whether there is a fair and substantial question to be tried. Thus recording, the learned trial court, referring to some of the decisions relied upon by the plaintiffs as well as the decisions of the apex Court relied upon by the respondents 2 and 3, came to the conclusion that the jurisdiction of the civil court is ousted and, therefore, concluded that the civil court lacks jurisdiction to decide the matter and the petitioners are to raise this question before the 5 appellate authority and, ultimately, dismissed the application for interim injunction. Hence, this appeal. 5. During the course of hearing, Mr. B. Routray, learned senior counsel appearing for the appellants drew attention of this Court to the decision of the Hon’ble apex Court in the case of Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 and submitted that the Hon’ble apex Court in the said decision considering the question with regard to ouster of the jurisdiction of the civil court has laid down that such jurisdiction cannot be held to have been ousted under the special statute unless it is expressly or by necessary implication, barred. In the said decision, the Hon’ble apex Court was considering a case, where the appellant therein filed a civil suit seeking declaration of two foreign exchange derivative contracts entered into with the respondent – bank as void and illegal, where the civil court granted status quo pending adjudication. On the other hand, the respondent – bank filed application before the D.R.T. for recovery of dues under the same contracts. Thereafter, the respondent – bank filed application before the High Court seeking transfer of the suit of appellant before the civil court to D.R.T. A Single Judge of the High Court directed transfer of the suit to the D.R.T. in the form of counter-claim. The Hon’ble apex Court held that the D.R.T. is neither civil court nor court subordinate to High Court. Hence, provision of 6 sections 22 to 24 of the C.P.C. is not applicable and, as a matter of fact, the Hon’ble Single Judge also could not have transferred the said suit to the D.R.T. in exercise of powers under section 25 C.P.C. In that context, it was also held that unless jurisdiction of civil court is ousted expressly or by necessary implication, the civil court will have jurisdiction to try all types of suits. 6. Applying the ratio of the said decision in the case of Nahar Industrial Enterprises Limited (supra), it would be seen that the learned trial court has erred in holding that it has no jurisdiction to try the issue involved in the suit while disposing of the application under Order 39, Rules 1 and 2 C.P.C. 7. I, therefore, without entering into the disputed questions of facts, inasmuch as, finding that the learned court below has not examined the sale deed by which the suit property was acquired and not referring to any other materials produced by the plaintiffs, has in a mechanical manner only noting the contentions raised on behalf of the respondents 2 and 3 (bank) has rejected the application and he has also not made any attempt to find out whether a prima facie case exists and as to whether the other two ingredients for granting of the interim injunction has been satisfied or not, set aside the impugned order and remitted the matter back to the learned trial court to rehear I.A. No. 140 of 2009 and pass a fresh order thereon keeping in view the fact that the plaintiffs are not 7 the borrowers and, as such, the suit for partition along with the ancillary relief filed by them is to be adjudicated by the civil court as the plaintiffs could not have filed such a suit before the D.R.T. nor the D.R.T. has any jurisdiction to pass a declaratory decree carving out the share of the plaintiffs as claimed in the suit. Till disposal of the interim application, the status quo over the disputed property which has been maintained by the interim order passed by this Court shall be continued to be maintained. However, it is made clear that the learned trial court shall dispose of the I.A. No. 140 of 2009 independently by considering the case made out by both the parties. 8.
Decision
The FAO is accordingly disposed of. ……………………… M. M. DAS, J. Orissa High Court, Cuttack. April 8th, 2013/Biswal. 8