Tourism Finance Corporation of India Limited v. Aishwarya Chetan Khedkar @ AishwaryaSanjay Mali

wp 3272 of 2025.docDeputy Tehsildar MavalTehsil Office, Tal. Maval, Pune.8) Eastman Garment Pvt Ltd.A company incorporate under the Having its registered office at; 10, 12, Kumara Nagar (South) 2nd street, Tirpur,Tamil Nadu – 641 603And having present address at:Hotel Aishwarya Regency, Post-Malawadi, Tal. Talegaon,District: Pune …Respondents WITHINTERIM APPLICATION NO.8693 OF 2025INWRIT PETITION NO.3272 OF 2025Eastman Garments Pvt. Ltd. …Applicant andTourism Finance Corporation of India Ltd. …Petitioner versusAishwarya Chetan Khedkar and Ors. …Respondents WITHINTERIM APPLICATION NO.9086 OF 2025 INWRIT PETITION NO.3272 OF 2025Aishwarya Chetan Khedkar …Applicant andTourism Finance Corporation of India Ltd. …Petitioner versusAishwarya Chetan Khedkar and Ors. …Respondents Mr. Naushad Engineer, Sr. Advocate with Mr. Siddharth Samantaray, Mr.Vinod Kothari, Mr. Kshitij Parekh i/by Apex Law Partners, for Petitioner. Mr. Surel Shah, Sr. Advocate with Mr. Sagar Kasar, Mr. Rishabh Tiwari, forRespondent No.1. SSP 2/31 wp 3272 of 2025.docMr. Amol Wagh, for Respondent Nos.2 and 3. Mr. V.V.Krishnan, for Respondent No.5. Mr. Hamid Mulla, AGP for Respondent Nos.6 and 7. Mr. R.V.Pai, Sr. Advocate with Ms. Renuka Anturkar, Ms. Siddhi Bhosale, Ms.Prajakta Shringapure for Applicant in IA No.8693 of 2025 and for RespondentNo.8 in WP. CORAM: N.J.JAMADAR, J. RESERVED ON : 25 NOVEMBER 2025 PRONOUNCED ON : 24 JANUARY 2026 JUDGMENT : 1.Rule. Rule made returnable forthwith, and, with the consent of thelearned Counsel for the parties, heard finally. 2.The Petitioner – Defendant No.5 questions the legality, propriety andcorrectness of a judgment and order dated 24 January 2025 passed by thelearned District Judge, Vadgaon – Maval, Dist. Pune, in Misc. Civil AppealNo.47 of 2023, whereby the appeal preferred by the Respondent No.1 –Plaintiff against an order dated 14 December 2023 passed by the learnedCivil Judge, Sr. Division, Vadgaon, thereby rejecting the application fortemporary injunction in RCS No.305 of 2023, came to be allowed by settingaside the said order and restraining the Petitioner – Defendant No.5 andDefendant Nos.1 to 4 from creating third party interest in the property bearingSurvey Nos.1/1/A/1, 1/1/A/6 and 1/1/A/7 with the building housing HotelAishwarya Regency (the suit property), without due process of law, to theSSP 3/31 wp 3272 of 2025.docextent of the share of the Plaintiff therein, till the final disposal of the suit. 3.The Petitioner is a public limited Company. The Petitioner hadsanctioned financial facilities to Aishwarya Regency LLP, a limited liabilityPartnership. Defendant Nos.1 and 2 were the partners of the said firm.Defendant Nos.1 and 2 also stood guarantors for the due repayment of thecredit facilities extended by Defendant No.5. Security interest in the suitproperty was also created in favour of Defendant No.5. 4.In the wake of the default in the discharge of the liabilities, DefendantNo.5 initiated measures under Section 13 of the the Securitisation andReconstruction of Financial Assets and Enforcement of Security Interest Act,2002 (SARFAESI Act, 2002). Eventually, on 15 March 2023, Defendant No.5took symbolic possession of the suit property. The District Magistrate, Punepassed an order under Section 14 of the SARFAESI Act, 2002 for delivery ofphysical possession of the suit property. The challenges to the action initiatedunder the SARFAESI Act, 2002 at the instance of Defendant Nos.1 and 2failed. As there was resistance to the physical delivery of the possession ofthe suit property, Defendant No.5 was constrained to approach this Court byfiling Writ Petitions. 5.The Petitioner asserts, to obviate the sale of the secured property, thePlaintiff, who is the daughter of Defendant Nos.1 and 2, instituted RCSNo.305 of 2023 purportedly for the partition and separate possession of herSSP 4/31 wp 3272 of 2025.docshare in the suit property. An application preferred by the Plaintiff, seekingtemporary injunction to restrain Defendant No.5 from selling the suit propertyto enforce its security, with a view to thwart recovery of the legal dues,came tobe rejected by the trial Court by an order dated 14 December 2023. 6.The Plaintiff filed Misc. Civil Appeal No.47 of 2023 before the DistrictCourt at Vadgaon. By the impugned judgment and order dated 24 January2025, the learned District Judge allowed the said appeal holding that thePlaintiff was entitled to enforce her right as a coparcener qua the suit propertyand her interest in the suit property was required to be protected till the finaldisposal of the suit, lest the Plaintiff would suffer an irreparable loss. 7.Being aggrieved, the Petitioner – Defendant No.5 has invoked the writjurisdiction. 8.It would be contextually relevant to note that, after the impugned ordercame to be passed on 24 January 2025, Defendant No.5 sold the suitproperty to Respondent No.8 by accepting anchor bid vide communicationdated 28 January 2025. Respondent No.8 thus sought impleadment in theWrit Petition as the Respondent No.8 had acquired right, title and interest inthe suit property. By an dated 16 October 2025, the said InterventionApplication came to be allowed. 9.I have heard Mr. Naushad Engineer, learned Senior Advocate for thePetitioner, Mr. Surel Shah, learned Senior Advocate for Respondent No.1 –SSP 5/31 wp 3272 of 2025.docPlaintiff, Mr. R.V.Pai, learned Senior Advocate for Respondent No.8, Mr. AmolWagh, learned Counsel for Respondent Nos.2 and 3, Mr. Krishnan, learnedCounsel for Respondent No.5, at some length. With the assistance of thelearned Counsel for the parties, I have perused the material on record. 10.Mr. Engineer mounted a multi-fold challenge to the impugned order.Firstly, Mr. Engineer would urge, the liability towards financial facilitiesextended by the Petitioner, a secured creditor to Aishwarya Regency, ofwhich the Defendant Nos. 1 and 2 are the the partners, is not disputed. Thesecurity interest created by defendant nos. 1 and 2 has been duly registeredwith CERSAI, which constitutes a notice to the public at large and demolishesthe claim of the plaintiff that she was unaware of creation of security interestin the suit properties. Once this position remains uncontroverted, the barunder Section 34 of the SARFAESI Act operates and the Civil Court’sjurisdiction to entertain the suit gets ousted. The learned District Judge thuscommitted a manifest error in law in granting injunction in teeth of statutoryprohibition. The net effect of the injunction was to restrain the secured creditorfrom taking the measures to enforce the security under the provisions ofSARFAESI Act. 11.Mr. Engineer submitted that, the legal position is no longer rest integra.A very strong reliance was placed by Mr. Engineer on the judgment of theSSP 6/31 wp 3272 of 2025.docSupreme Court in the case of Jagdish Singh Vs Heeralal and Ors.1Reliance was also placed by Mr. Engineer on an order passed by this Court inthe case of Satyajit Balasaheb Kadam and Anr Vs Balasaheb A Kadamand Ors.2 12.Secondly, Mr. Engineer would urge, the instant suit was a desperateattempt to prevent the secured creditor from enforcing its security, afterprevious multiple attempts by Defendant Nos. 1 and 2 did not yield any result.The borrower had resorted to unlawful means to dispossess the securedcreditor after the possession of the secured assets was delivered underSection 14 of the SARFAESI Act. Inviting attention of the Court to an orderdated 20th October 2023 in Writ Petition No. 12478 of 2023 and another orderdated 23rd January 2024 in Writ Petition No. 333 of 2024 passed by theDivision Bench, Mr. Engineer would urge that, the borrower and theconcerned persons had left no stone unturned to deprive the secured creditorof the secured assets, and the instant suit is a link in the chain of unlawfulmeans adopted by the borrower and the Plaintiff to thrawt the recovery ofdebt. The conduct of the borrower and his family members, as reflected in theaforesaid orders passed by this Court, disentitles the Plaintiff from anyequitable relief. 13.Thirdly, Mr. Engineer laid emphasis on the fact that, another suit1(2014) 1 SCC 479.2 Civil Application No. 3283 pf 2017 in First Appeal No. 21 of 2017, Order dated 1st November 2017.SSP 7/31 wp 3272 of 2025.docinstituted by Utkarsha Sanjay Mali (D4), the sister of the Plaintiff and anotherdaughter of D1 and D2, did not yield the desired result and an Appeal againstorder passed in the said suit, being Appeal from Order No. 560 of 2024, waswithdrawn by the Appellant with liberty to file an Application before DebtsRecovery Tribunal for seeking reliefs as claimed in the said Appeal againstRespondent No. 5-the Petitioner herein. Thus, the Plaintiff, who is similarlycircumstanced, like Defendant No. 4, was also required to approach the DRTfor redressal of her grievances. 14.Mr. Engineer nextly urged that, the mortgaged property is not theancestral property. The factum of partition of the properties and thesubsequent execution of instruments so as to confer absolute ownership ofthe secured assets on Defendant No.1 is not in contest. At any rate, Mr.Engineer would urge, Defendant No.1 had raised the finances for legalnecessity. Therefore, the very claim of the Plaintiff that, the properties beingancestral properties, and she has 1/5th undivided interest therein is legallyunsustainable. The learned District Judge thus could not have interfered witha well reasoned discretionary order passed by the trial Court. 15.Mr. Pai, the learned Senior Advocate for Respondent No. 8-the auctionpurchaser, supplemented the submissions canvassed by Mr. Engineer. Mr.Pai laid particular emphasis on the fact that borrowers and their associateshave resorted to unlawful and illegal means to first dispossess the securedSSP 8/31 wp 3272 of 2025.doccreditor, who had obtained possession of the suit properties pursuant to theorder passed by the Magistrate under Section 14 of the SARFAESI Act, andeven caused obstruction to the possession of Respondent No. 8, the auctionpurchaser. The parties who resort to such unlawful means do not deserve anydiscretionary relief. 16.Mr. Pai urged with a degree of vehemence that, the learned DistrictJudge committed a gross error in holding that all the suit properties were theancestral properties. Taking the Court through the Mutation Entries in respectof the suit properties, Mr. Pai would urge that, all the properties became theabsolute properties of Defendant No.1. When the security interest wascreated in the suit properties, Defendant No.1 was the absolute ownerthereof. The claim of the Plaintiff that the suit properties are the ancestralproperties and she has an undevided 1/5th share in the suit properties is,thus, demonstrably false. The learned District Judge, without properevaluation the material on record, proceeded to interfere with thediscretionary order passed by the trial Court by ascribing flimsy reasons.17.Mr. Pai reiterated that the instant suit was a collusive suit. A referencewas made to the fate of the proceeding instituted by Utkarsha (D4). Mr. Paimade a strenuous effort to demonstrate that the auction sale by the Petitionerin favour of Respondent No. 8 was after following the due process of law. Theinjunction order passed by the learned District Judge, which was, in the firstSSP 9/31 wp 3272 of 2025.docplace, without jurisdiction, did not impinge upon the sale of the suit propertiesby the Petitioner in favour of Respondent No. 8. Attention of the Court wasinvited to an order passed by the DRT on 17th April 2025, whereby all theobjections raised on behalf of the borrowers to the sale of the suit propertieswere negated by the DRT. Thus auction sale of the suit properties by thePetitioners in favour of Respondent No. 8 can, even otherwise, be said to beby following due process of law. In these circumstances, the impugned orderof injunction deserves to be quashed and set aside. 18.Per contra, Mr. Surel Shah, the learned Senior Advocate forRespondent No.1-the Plaintiff, supported the impugned order. First andforemost, Mr. Shah would submit that, the Petitioner does not deserve to beheard in this Petition as, in the teeth of the injunction order, the Petitioner hasprofessed to sell the suit properties in favour of Respondent No. 8. Such asale in breach of an injunction order is illegal and void. No right, title andinterest can be said to have been transferred in favour of Respondent No. 8on the strength of such sale. The purported sale of the suit property by thePetitioner to Respondent No. 8 is non-est in the eyes of law. On this count ofdeliberate and contumacious breach of impugned order itself, the Petitiondeserves to be dismissed summarily. 19.To lend support to this submission, Mr. Shah placed a very strongreliance on the judgment of the Supreme Court in the case of BalwantbhaiSSP 10/31 wp 3272 of 2025.docSomabhai Bhandari Vs Hiralal Somabhai Contractor (Deceased)Represented by LRs and Ors.3 20.As the second limb of the submission, Mr. Shah would urge that,Respondent No. 8- auction purchaser is also not entitled to be heard in thisPetition having acquired subject property in the face of an injunction order.The auction purchaser will have to workout its remedies in an appropriateproceeding before the appropriate forum. 21.Mr. Shah assiduously controverted the contentions on behalf of thePetitioner and Respondent No. 9 that the suit properties are not the ancestralproperties. Taking the Court through the averments in the Plaint and theentries in the Record of Rights of the suit properties, Mr. Shah would urge theclaim of the Plaintiff that the suit properties are ancestral properties issubstantiated by documents of unimpeachable character. In fact, the MutationEntries on which reliance was placed on behalf of the Petitioner andRespondent No. 8, if properly construed, belied the claim of the Petitioner andRespondent No. 8.22.Mr. Shah would urge that, the trial Court has also recorded acategorical finding that one of the properties was the ancestral propertiesand, yet, declined to protect the interest of the Plaintiff by recording an utterlyunsustainable finding that rest two properties were self-acquired properties of3 (2023) 17 SCC 545.SSP 11/31 wp 3272 of 2025.docDefendant No.1 The learned District Judge was thus within his rights incorrecting the manifest error committed by the leaned Civil Judge. Such anorder which corrects the error in the exercise of discretion by the trial Court, isnot open for interference, in exercise of its supervisory jurisdiction by thisCourt, submitted Mr. Shah. 23.In any event, since by the impugned order, the learned District Judgehad restrained the Defendants from creating third party interest in the suitproperties to the extent of the share of the Plaintiff without following dueprocess of law, the said order is otherwise not amenable to interference as itbalances the equities between the parties.24.The aforesaid submissions now falls for consideration.25.To begin with the jurisdictional challenge. The thrust of the submissionon behalf of the Petitioner and Respondent No.8 was that the civil court’sjurisdiction was clearly ousted by the provisions contained in Section 34 ofSARFAESI Act, 2002, as the very purpose of the suit was to obviate themeasures initiated by the secured creditor under Section 13 of theSARFAESI Act, 2002. As the challenge squarely falls within the ambit of theprovisions contained in Section 17 of the SARFAESI Act, 2002, the Plaintiffmust have approached the DRT. 26.To appreciate this challenge, at the outset, certain fundamentalprinciples with regard to the jurisdiction of the civil court vis-a-vis the Tribunal,SSP 12/31 wp 3272 of 2025.docwhich is created under the statute, deserve to be kept in view. The jurisdictionof the civil court is of wide amplitude. In a sense, it is plenary and omnipotent.The Civil Court has jurisdiction to entertain all suits of civil nature, unless it’sjurisdiction is expressly or impliedly barred, and the exclusion of thejurisdiction of the civil court is not readily to be inferred. 27.The Tribunal, in contrast, which is a creature of statute, is bound by thejurisdiction conferred on it under the provisions of the Act, by which it iscreated. Being the creature of the statute, the Tribunal has limited jurisdiction.It has to discharge the statutory functions within the four corners of the statutecreating it. The Tribunal, thus, cannot transgress its jurisdictional limits anddelve into the matters which do not strictly fall within its adjudicatory province.In the context of the facts of the case at hand, the Tribunal i.e. DRT, which thePetitioner and Respondent No.8 claimed to have exclusive jurisdiction, is acreature of RDB Act, 1993. It has to exercise jurisdiction within the confinesof RDB Act, 1993 and the SARFAESI Act, 2002. 28.Mr. Engineer would urge that the legal position as regards thejurisdiction of the civil court vis-a-vis an action pursuant to the measuresinitiated by the secured creditor is well settled. Reliance was placed on thejudgment in the case of Jagdish Singh (supra). In the said case, theSupreme Court enunciated that the expression ‘any person’ used in Section17 of the Act, 2002 (as it stood before it was substituted by Act 44 of 2016) isSSP 13/31 wp 3272 of 2025.docof wide import and takes within its fold not only the borrower but also theguarantor or any other person who may be affected by action taken underSection 13(4) of the SARFAESI Act, 2002. The expression ‘in respect of anymatter’ referred to in Section 34 would take in the ‘measures’ provided undersub-section (4) of Section 13 of the SARFAESI Act, 2002. Consequently, ifany aggrieved person has got any grievance against any ‘measures’ taken bythe borrower under sub-section (4) of Section 13, the remedy open to him isto approach the DRT or the Appellate Tribunal and not the civil court. The civilcourt in such circumstances has no jurisdiction to entertain any suit orproceedings in respect of those matters which fall under sub-section (4) ofSection 13 of the Securitisation Act because those matters fell within thejurisdiction of the DRT and the Appellant Tribunal. 29.The development in law after the aforesaid decision of the SupremeCourt in the case of Jagdish Singh (supra), deserves to be noted. In fact,the legal position in regard to the bar of the jurisdiction of the civil court can besaid to be now fairly crystalized. It may be superfluous to make a reference tothe judgments which delve on the extent of the bar created under Section 34of the SARFAESI Act, 2002. It would be suffice to make a reference to theDivision Bench judgment of this Court in the case of Bank of Baroda V/s.Gopal Shriram Panda4 and a judgment of the Supreme Court in the case of42021 SCC Online Bom 466SSP 14/31 wp 3272 of 2025.docCentral Bank of India and Anr. V/s. Prabha Jain and Ors.5, wherein theimport of the judgment in the case of Jagdish Singh (supra), whichconstitutes the sheet-anchor of the submission of Mr. Engineer, was clarified.In the case of Bank of Baroda (supra), the Division Bench considered on areference the following question : “Whether the jurisdiction of a Civil Court to decide all thematters of civil nature, excluding those to be tried by theDebts Recovery Tribunal under Section 17 of theSecuritisation Act, in relation to enforcement of securityinterest of a secured creditor, is barred by Section 34 of theSecuritisation Act ?”30.The Division Bench after an elaborate analysis, including the judgmentsin the cases of Mardia Chemicals Ltd Vs Union of India6, Jagdish Singh(supra), answered the above question, as under : “The answer, looking to the nature of the question, in our view, is in parts :- (A) Jurisdiction of the Debts Recovery Tribunal, to decide all mattersrelating to Sections 13 and 17 of the SARFAESI Act, is exclusive. (B) In all cases, where the title to the property, in respect of which a'security interest', has been created in favour of the Bank or FinancialInstitution, stands in the name of the borrower and/or guarantor, andthe borrower has availed the financial assistance, it would be only theDRT which would have exclusive jurisdiction to try such matters, to thetotal exclusion of the Civil Court. Any pleas as raised by the borrowersor guarantors, vis-a-vis the security interest, will have to be determinedby the DRT. (C) The jurisdiction of the Civil Court to decide all the matters of civilnature, excluding those to be tried by the Debts Recovery Tribunalunder Sections 13 and 17 of the SARFAESI Act, in relation toenforcement of security interest of a secured creditor, is not barred by5(2025) 4 SCC 386(2004) 4 SCC 311.SSP 15/31 wp 3272 of 2025.docSection 34 of the SARFAESI Act. (D) Where civil rights of persons other than the borrower(s) orguarantor (s) are involved, the Civil Court would have jurisdiction, thattoo, when it is prima facie apparent from the face of record that therelief claimed, is incapable of being decided by the DRT, under Section17 of the DRT Act, 1993 read with Sections 13 and 17 of theSARFAESI Act. (E) Even in cases where the enforcement of a security interestinvolves issues as indicated in M ardia Chemicals (supra) of fraud as established within the parameters laid down in A. Ayyasamy (supra); a claim of discharge by a guarantor under Sections 133 and 135 of theContract Act [Mardia Chemicals (supra)] ; a claim of discharge by a guarantor under Sections 139, 142 and 143 of the Contract Act;Marshaling under Section 56 of the Transfer of property Act [J.P. Builders (supra)] ; the Civil Court shall have jurisdiction. (F) Examples as indicated in para 22.3, are illustrative of the CivilCourt's jurisdiction. (G) The principles laid down in para 33 (i) to (ix) of Sagar PramodDeshmukh (supra) are in accordance with what we have discussedand held above.” (emphasis supplied)31.The Division Bench has held in clear and explicit terms that thejurisdiction of the Civil Court to decide all the matters of Civil nature, excludingthose to be tried by the Tribunal under Sections 13 and 17 of the SARFAESIAct, 2002, in relation to enforcement of security interest of a secured creditor,is not barred by Section 34 of the SARFAESI Act, 2002. Where civil rights ofpersons other than the borrowers or guarantors are involved, the Civil Courtwould have jurisdiction, especially when it is prima facie apparent from theface of the record that the relief claimed is incapable of being granted by theTribunal under Section 17 of the Recovery of Debts and Bankruptcy Act, 1993(“the RDB Act”) read with Sections 13 and 17 of the SARFAESI Act, 2002.SSP 16/31 wp 3272 of 2025.doc32.In the case of Central Bank of India (supra), while explaining the ratioin the case of Jagdish Singh (supra), the Supreme Court observed, interalia, in relation to the Division Bench judgment of this court in the case ofBank of Baroda (supra), as under : “29.I n para 24 (of Jagdish Singh) this Court held that DRT has jurisdiction with respect to “measures” taken by thesecured creditor under Section 13(4) and that in respect ofsuch matters, the civil court’s jurisdiction is ousted. However,thereafter, there is no further discussion on the nature of thesuit and without recording any finding that DRT has thepower to decide partition suits, this Court straightawayaffirmed the rejection of the plaint under Order VII, Rule 11.While doing so, this Court missed to consider that underSection 17, DRT has no power to partition properties andhence, civil court’s jurisdiction to grant a decree of partitioncannot be said to be ousted. When there is no finding in thejudgment that the DRT has the jurisdiction to grant the reliefof partition, the judgment cannot be said to be a precedenton that point. 30.The aforesaid was looked into by a Division Bench ofthe Bombay High Court in Bank of Baroda (supra), and thereasonings assigned in our view are verycommendable………..” (emphasis supplied)33.In view of the aforesaid clarification of law in the context of the jurisdiction ofthe Tribunal under Section 17 of the SARFAESI Act, 2002, reliance placed by Mr.Engineer on the decision in the case of Jagdish Singh (supra), and the order inSSP 17/31 wp 3272 of 2025.docSatyajit Balasaheb Kadam (supra), which followed Jagdish Singh (supra),does not advance the cause of the submission on behalf of the Petitioner andRespondent No.8. 34.It would be contextually relevant to note that, even the trial Court waspersuaded to repel the challenge to the tenability of the suit in view of theinterdict contained in Section 34 of the SARFAESI Act, 2002, and observed inclear and explicit terms that the issues and matter raised in the present suitand the relief sought are out of the ambit of Debt Recovery Tribunal and onlythe civil court has jurisdiction to adjudicate those matters. 35.Having dealt with the jurisdictional challenge, it would be apposite toappreciate whether the appellate Court was justified in interfering with thediscretionary order passed by the trial Court. 36.The legal position in regard to interference with a discretionary order iswell recognized. Ordinarily, the appeal Court is not expected to interfere withthe exercise of discretion in the matter of grant of injunction by the trial Courtand substitute its own discretion for the same, except where it can bedemonstrated that the discretion has been exercised arbitrarily or perversely,or the impugned order is contrary to the settled principles of law. Anarbitrariness in the exercise of discretion or perversity in the order passed bythe trial Court can arise where the injunction has been granted sans materialor the trial court has declined to grant temporary injunction, despite existenceSSP 18/31 wp 3272 of 2025.docof justifiable material. 37.On the aforesaid touchstone, reverting to the facts of the case, itbecomes evident that two reasons primarily weighed with the learned CivilJudge in declining to grant interim relief. First, the learned Civil Judge was ofthe view that the Plaintiff succeeded in establishing that, out of three suitproperties, only the property described in paragraph No.1A i.e. SurveyNo.1/1/A/1 was the ancestral property and failed to prove that the other twoproperties i.e. Survey Nos.1/1/A/6 and 1/1/A/7 were the ancestral properties.Second, since the Defendant No.1 had inherited other properties and thePlaintiff chose not to bring those properties in the common hotchpot and seekpartition therein, the suit seeking partial partition was not maintainable. 38.Consistent with these findings, the learned Civil Judge has drawn aninference that the suit was actuated by a design to wriggle out of the clutches,in view of the measures initiated by the secured creditor under the SARFAESIAct, 2002. Whether the aforesaid approach and findings of the learned CivilJudge were, prima facie, borne out by the material on record, or bordered onperversity, was the question that the learned District Judge was required toanswer. 39.Learned District Judge found that the trial Court erred in the exercise ofjurisdiction by recording findings which appeared to be against the weight ofthe material on record. Whether these findings of the learned District JudgeSSP 19/31 wp 3272 of 2025.docare legally sustainable, is the moot question. 40.First and foremost, the character of the suit properties 1A, 1B and 1C.Both the Petitioner and Respondent No.8, one the one part, and the Plaintiff -Respondent No.1, on the other part, banked upon the entries in the revenuerecord and the mutation entries to drive home their respective contentions. Asnoted above, even the trial Court has recorded a categorical finding that thesuit property 1A i.e. Survey No.1/1/A/1 is the ancestral property. With regardto the rest two i.e. Survey Nos.1/1/A/6 and 1/1/A/7, the parties were at issue. 41.Mutation Entry No.134 certified on 6 November 1991 sheds light on thecharacter of Survey Nos.1/1/A/6 and 1/1/A/7 also. From a bare perusal of thesaid Mutation Entry No.134, it becomes evidently clear that Dnynoba K. Mali,father of Defendant No.1 and the grandfather of the Plaintiff, and JagannathD. Shelar partitioned the properties between themselves under a PartitionDeed. Survey Nos.1/1/A/1, 1/1/A/6 and 1/1/A/7 were allotted to the share ofDnynoba K. Mali. Out of those land, Survey No.1/1/A/1 came to be mutatedin the name of Dnynoba Mali; Survey No.1/1/A/6 was mutated in the name ofLaxmibai D. Mali, mother of Defendant No.1, and the grandmother of thePlaintiff and Survey No.1/1/A/7 came to be mutated in the name of SanjayMali – Defendant No.1. 42.At this juncture, it is necessary to note that, Survey Nos.1/1/A/6 and1/1/A/7 came to be mutated in the name of Laxmibai and Sanjay (D1) as theSSP 20/31 wp 3272 of 2025.docmembers of the family of Dnynoba Mali. The mutation of these lands whichfell to the share of Dnynoba Mali, in the said partition, in the name of Laxmibaiand Sanjay Mali (D1) underscores the character of the suit properties 1B and1C. Prima facie, those lands were not mutated in the names of Laxmibai andSanjay (D1) in their own right. 43.It appears that the learned Civil Judge was swayed by the fact that,there were subsequent transfers in relation to the suit properties 1B and 1C.However, in the process, the learned Civil Judge seems to have lost sight ofthe underlying character of the properties bearing Survey Nos.1/1/A/6 and1/1/A/7. The fact that, subsequently, Laxmibai, mother of Sanjay Mali (D1),executed a Gift Deed on 18 August 2009 of the property bearing SurveyNo.1/1/A/6 in favour of Sanjay Mali (D1) does not detract materially from theancestral character of the suit property. 44.Likewise, the fact that certain portions of Survey No.1/1/A/7 wereacquired by Sanjay Mali (D1), under the registered Sale Deeds, or for thatmatter, after the demise of Dnynoba, Laxmibai and the sisters of Sanjay Mali(D1) relinquished their right, title and interest in Survey No.1/1/A/1, under aregistered Release Deed dated 7 November 2008, do not impinge the right ofthe Plaintiff as a coparcener in the suit properties. Prima facie, once thePlaintiff could demonstrate that the suit properties 1A, 1B and 1C are theancestral properties and she had an interest therein by birth, the subsequentSSP 21/31 wp 3272 of 2025.docinstruments in relation to those properties do not alter the character of the suitproperties. 45.Thus, the endeavour of Mr. Pai to demonstrate that, in view of thesubsequent instruments, Defendant No.1 became the absolute owner of thesuit properties 1A, 1B and 1C does not merit countenance. Learned DistrictJudge was, therefore, justified in observing that the learned Civil Judge was inerror in holding that, there was nothing on record to prove that the suitproperties 1B and 1C were also the ancestral properties inherited fromDnynoba Mali. Prima facie, these findings were recorded by the trial Court,by ignoring the very mutation entry No.134, on the basis of which the suitproperty 1A was held to be an ancestral property. 46.The second ground of the suit for partial partition being notmaintainable, was sought to be met by the Plaintiff, before the trial Court, bycanvassing a submission that those properties can be brought in the commonhotchpot by seeking amendment in the plaint. Learned Civil Judge was notpersuaded to accede to the said submission. However, the fact remains thatby an order dated 22 April 2024, on an application for amendment in the plaint(Exh.45), rest of the properties which were inherited from Dnynoba Mali,grandfather of the Plaintiff, were permitted to be included in the suitproperties. Resultantly, by the time the impugned order was passed by thelearned District Judge, other properties were also brought in the commonSSP 22/31 wp 3272 of 2025.dochotchpot and were the subject matter of the suit for partition. 47.In the backdrop of the aforesaid fact situation, where the right of thePlaintiff in the suit properties 1A, 1B and 1C as a coparcener became primafacie evident, a suit for partition, separate possession of her share in thoseproperties and the consequential relief of injunction, squarely fell within thejurisdiction of the civil Court. Learned District Judge was, therefore, justified inreturning a finding that the Plaintiff had made out a prima facie case. Thebalance of convenience, in a situation of the present nature, where theapparent undivided interest of the Plaintiff in the suit properties was sought tobe alienated, pursuant to the measures under the SARFAESI Act, 2002, toenforce security interest; to the creation of which the Plaintiff was apparentlynot a party, tilted in her favour. In these circumstances, the element ofirreparable loss, in the event the suit property were to be alienated for theenforcement of the security interest, also appeared to be in favour of thePlaintiff. 48.Should the Plaintiff be granted interim relief, especially in the context ofthe conduct of the Defendant No.1 and his associates, as noted in the orderspassed by this Court in WP No.333 of 2024 troubled the conscience of theCourt. Undoubtedly, high-handed action of taking the possession of thesecured assets by dispossessing the secured creditor by resorting to unlawfulmeans, cannot be countenanced under any circumstances. The DivisionSSP 23/31 wp 3272 of 2025.docBench of this Court was, thus, required to intervene and ensure that the ruleof law prevails. However, in the considered view of this court, when the Courtis confronted with the question of civil rights of the Plaintiff, which are primafacie evident, the conduct of the other co-sharers, be they the parents of thePlaintiff, cannot be arrayed to defeat an otherwise legitimate right. Thus, thesubmissions forcefully canvassed on behalf of the Petitioner and RespondentNo.8 premised on the conduct of the borrower and their associates, do notmerit acceptance. 49.Likewise, the submission on behalf of the Petitioner and RespondentNo.8 based on the fate of the suit instituted by Utkarsha (D4) does not holdany ground. In the case at hand, by and large, both the courts below havefound that the Plaintiff has undivided interest in the suit properties; the trialCourt and the District Court differed on the extent of the undivided interest ofthe Plaintiff. In the light of the position in law, adverted to above, the Plaintiffis entitled to assert her proprietary right over the suit properties. Such claim ofthe Plaintiff cannot be thrown overboard on the ground that the claim ofidentically situated co-sharer did not succeed. Moreover, in the light of theclear enunciation of law to assert the civil right in the secured assets, aperson who is not a borrower or guarantor is not required to approach theDRT as the reliefs sought in the instant suit are beyond the remit of thestatutory jurisdiction of the DRT. SSP 24/31 wp 3272 of 2025.doc50.This propels me to the conduct of the Petitioner in alienating the suitproperty after the impugned order was passed by the learned District Judge.Learned District Judge passed the impugned order thereby restrainingDefendant Nos.1 to 5, including the Petitioner, or any one acting on theirbehalf from creating third party interest without due process of law to theextent of the share of the Plaintiff in the suit properties till the final disposal ofthe suit. The endorsement on the judgment indicates that the judgment wassigned by the Presiding Officer on 27 January 2025 and it was uploaded on28 January 2025. 51.It appears that the intimation of the said judgment was given by theAdvocate for the Plaintiff to the Advocate for the Petitioner on the morning of28 January 2025.On the very day, a communication was addressed by thePetitioner to the Respondent No.8 that the anchor bid of the Respondent No.8in the e-auction held on 28 January 2025 was accepted as a successful bid.The sale certificate was executed and registered in favour of RespondentNo.8 on 8 May 2025. 52.Evidently, the suit property was alienated by the Petitioner in favour ofRespondent No.8, after the impugned order came to be passed. Even if someallowance is given as to the time of communication of the impugned order on28 January 2025, yet, it can hardly be controverted that, despite theknowledge of the impugned order, the Petitioner went ahead with the auctionSSP 25/31 wp 3272 of 2025.docprocess and completed the transaction by executing and registering the salecertificate, after four months of the impugned order. Holding of e-auction on28 January 2025, the very day on which the judgment of the learned DistrictJudge was uploaded and acceptance of the bid of respondent No.8 as asuccessful bidder, cannot be brushed aside as a matter of sheer co-incidence.The reasons are not far to seek. 53.Firstly, it is not the case that the Petitioner did not participate in theproceedings in Misc. Civil Appeal No.47 of 2023. The Petitioner wasrepresented by an Advocate before the learned District Judge and did resistthe appeal. When the judgment was delivered on 24 January 2025, it wasincumbent upon the Petitioner to ascertain the nature of the order passed inthe appeal. Secondly, even if the benefit of doubt is given to the Petitioner asregards the time of the knowledge of the impugned order on 28 January 2025,yet the fact that the Petitioner proceeded to complete the transaction withimpunity culminating in the execution of the sale certificate on 8 May 2025,betrays the intent to act in defiance of the impugned order. 54.This inference appears inexorable if viewed from the stand pointwhether the Petitioner had the opportunities to make amends before thetransaction could be concluded by executing sale certificate. The letter dated28 January 2025 under which the Petitioner purportedly accepted the bid ofRespondent No.8, makes it clear that 15% of the bid amount was to beSSP 26/31 wp 3272 of 2025.docdeposited on the following day and the balance amount was to be depositedwithin 15 days from 29 January 2025. Even if it is assumed that the Petitionerobtained the knowledge about the impugned order on 28 January 2025, therewas ample time for the Petitioner to remedy the situation. Instead, it appears,the Petitioner proceeded to conclude the transaction by executing the salecertificate on 8 May 2025. 55.The legal position as regards the consequences that ensue suchalienation in the teeth of the injunction order is well recognized. The generalprinciple that, lis pendence does not render the transfers effected during thependency of the suit void, but only renders such transfers subservient to thedecree that may be eventually passed, cannot be pressed into service wherethe property is transferred in disobedience of an injunction order. If thetransfers in disobedience of the restraint order passed by the Court are notconsidered on a different footing, then the sanctity of the orders passed by theCourt would be completely eroded. The courts have, thus, taken a view thatthe act done in willful disobedience of an injunction order, in addition toentailing an action in contempt, would also be illegal and invalid transfer. Therights of the parties cannot be jeopardised by effecting transfer of the propertyin teeth of an injunction order. The dictate of public justice commands thatsuch transfers be treated as non-est in the eye of law. 56.A useful reference in this context can be made to the Division BenchSSP 27/31 wp 3272 of 2025.docjudgment of this Court in the case of Keshrimal Jivji Shah and Anr. V/s.Bank of Maharashtra and Ors.7 In the said case, the Division Bench wasconfronted with the question : “Is transfer of an immovable property in contravention of aprohibitory or injunction order of a court illegal or void ? 57. The Division Bench after referring to the judgments of the SupremeCourt in the cases of Ramchandra Ganpat Shinde V/s. State ofMaharashtra8 and Satyabrata Biswas V/s. Kalyan Kumar Kisku9, held thatsuch transfer was clearly illegal, if not void. The Division Bench observed interse terms that : “27……….It is time that we recongnize the principle thattransfer of immovable property in violation of an order ofinjunction or prohibition issued by court of law, confers no right,title or interest in the transferee, as it is no transfer at all. Thetransferee cannot be allowed to reap advantage or benefit fromsuch transfer merely because he is not a party to theproceedings in which the order of injunction or other prohibitorydirection or restraint came to be issued. It is enough that thetransferor is a party and the order was in force.” (emphasis supplied)58. The aforesaid observations are a complete answer to thesubmission sought to be canvassed on behalf of Respondent No.8 that it has7(2004) 3 Mah.L.J. 8938AIR 1994 SC 16739AIR 1994 SC 1837SSP 28/31 wp 3272 of 2025.docparted with a valuable consideration and cannot be made to suffer theconsequences of the injunction order. 59.In the case of Vidur Impex & Traders (P) Ltd. V/s. Tosh Apartments(P) Ltd.10 the Supreme Court held that the sale transaction conducted in teethof the injunction order passed by the Delhi High Court did not have any legalsanctity. 60.In the case of Balwantbhai Somabhai Bhandari (supra) on whichreliance was placed by Mr. Shah, the Supreme Court considered the questionwhether the contemptuous transactions are void. After an elaborate analysisand reference to the previous precedents, the Supreme Court enunciatedthat, although Section 52 of the Transfer of Property Act, 1882 does notrender a transfer pendente lite void yet the court while exercising contemptjurisdiction may be justified to pass directions either for reversal of thetransactions in question by declaring the said transactions to be void orproceed to pass appropriate directions to the authorities concerned to ensurethat the contumacious conduct on the part of the contemnor does notcontinue to enure to the advantage of the contemnor or anyone claimingunder him. 61.Mr. Pai, learned Senior Advocate, attempted to salvage the position bycanvassing a submission that the sale of the secured assets by the Petitioner10(2012) 8 SCC 384SSP 29/31 wp 3272 of 2025.docin favour of Respondent No.8 can be said to be in conformity with the orderpassed by the learned District Judge, as the sale was upheld by DRT and thechallenge to the sale at the instance of the borrower was repelled by the DRT.62.The submission does not commend itself. By the impugned order, thelearned District Judge has restrained the Petitioner from creating third partyinterest in the suit property without due process of law to the extent of theshare of the Plaintiff in the suit property. The action initiated against theborrowers, to which the Plaintiff is not a privy, cannot be said to be a creationof third party interest by following due process of law. To give meaning andcontent to the impugned order, it must be held that, due process of law mustbe qua the Plaintiff. 63.The conspectus of aforesaid discussion is that, none of the challengesto the impugned order are worthy of acceptance. Thus, in exercise ofsupervisory jurisdiction, this Court does not find such jurisdictional error, legalinfirmity or perversity in the impugned order as to interfere with the same.The Writ Petition, therefore, deserves to be dismissed. 64.Hence, the following order : ORDER(i)The Writ Petition stands dismissed. (ii)Rule discharged. (iii)No costs. SSP 30/31 wp 3272 of 2025.doc (iv)In view of the dismissal of the Writ Petition, Interim Applicationsalso stand disposed. ( N.J.JAMADAR, J. )SSP 31/31