) ---------- Smt.Manju Jajodia .… v. M/s.Bajaj Finance Ltd. and others
Case Details
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 For Respondents : :
Legal Reasoning
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 FAO No.416 of 2022 Page 8 of 9 appeal preferred by the plaintiff against the order of the learned Civil Judge is pending for adjudication before the First Appellate Court, with a view to protect the property during pendency of the appeal, it is directed that no 3rd party interest shall be created in respect of the suit schedule ‘A’ property till disposal of the appeal by the First Appellate Court. At the same time, the learned First Appellate Court is directed to dispose of the appeal as expeditiously as possible in accordance with law, without being influenced by any such observations made hereinabove. It is made clear that all such observations made above are for the limited purpose of deciding the present appeal only. 12.
Arguments
Mr.R.K.Mohanty, Sr.Advocate Mr.B.Bhuyan, Advocate 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 21st 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. FAO No.416 of 2022 Page 1 of 9 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. FAO No.416 of 2022 Page 2 of 9 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. FAO No.416 of 2022 Page 3 of 9 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., FAO No.416 of 2022 Page 4 of 9 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 to be disciplined by proceedings. Judicial discretion has 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 FAO No.416 of 2022 Page 5 of 9 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 FAO No.416 of 2022 Page 6 of 9 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 FAO No.416 of 2022 Page 7 of 9 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.
Decision
The appeal is disposed of. (B.P.Routray) Judge C.R.Biswal/Secy. FAO No.416 of 2022 Page 9 of 9