AUTHORIZED OFFICER CORPORATION BANK V KOOTTU ROAD SHEEP FARM POST ATTUR TALUK SALEM DISTRICT Vs. MINOR SATHIYA

JUDGEMENT

(1.) THE second defendant-Bank has filed this revision challenging the order of the learned Subordinate Judge, Attur, Salem District, granting the order of status quo in the interim injunction application filed by the plaintiffs, on the ground that the very suit and the Interlocutory Application are not maintainable in view of the specific bar contained in Section 34 of the SARFAESI Act.

(2.) THE case in brief is as follows: THE revision petitioner is the second defendant in the suit O.S.No.14 of 2007 filed by respondents 1 and 2 for the relief of partition and separate possession and consequential relief of permanent injunction and for costs. THE plaintiffs have also filed the present I.A.No.86 of 2007 under Order XXXIX Rule 1 and 2 and Section 151 CPC praying for the grant of ad interim injunction. THE Court below ordered status quo by order dated 19.02.2007. Aggrieved over the said order, the second defendant is before this Court by way of revision.

(3.) IT is the case of the revision petitioner/bank that the first defendant, third respondent herein availed a housing loan from the petitioner Bank during April 2004 in a sum of Rs.3 lakhs for construction of the House. To secure the loan he had mortgaged the suit property measuring 2800 sq.,ft.,of land comprised in S.Nos:564/1, 564/2 n patta No.477, Manivizhuthan Village, Attur Taluk, Salem District. The first defendant initially paid some installments regularly, but subsequently defaulted in repayment of the loan. Therefore the petitioner-Bank had initiated action under SARFAESI Act by issuing a notice under Section 13(2) of the said Act on 18.7.2006 granting 60 days time for repayment of the loan. The third respondent failed to repay the loan amount and hence possession notice dated 15.11.2006 was issued and symbolic possession was also taken by the Bank. Despite that, the first defendant did not repay the loan amount. Thereafter the property was brought for sale and the auction was scheduled on 21.1.2007. While so, the first defendant had set up his wife to file a suit on behalf their minor children namely Sathya and Prabakaran, represented by his wife who are arrayed as first and second respondents herein. The suit has been filed for a preliminary decree of partition of the suit property on the ground that the suit property was purchased out of the earnings of ancestral property and the first defendant who had availed loan amount had misused the same in gambling and drink and therefore they are entitled to the ancestral family property.