MAMATA GHOSH Vs. UNITED INDUSTRIAL BANK LTD

JUDGEMENT

(1.) This appeal is directed against the order dated 19th April, 1983, passed by Shri G. Banerji, the learned Subordinate Judge, 2nd Court, Alipore in Title Suit No. 30 of 1977, rejecting the application for temporary injunction filed by the defendant No. 4 who is the appellant here, in the said Title Suit for restraining the defendant No. 3 from disposing of his personal properties till the disposal of the aforesaid suit.

(2.) Plaintiff United lndustrial Bank Ltd. filed the aforesaid title suit against the defendants 1 to 5 praying for a declaration that the land and properties at 10, Ballygunge Station Road and 23/B, Kankulia Road, Calcutta, the documents of title whereof were deposited with the plaintiff as security against the loan taken by the defendants Nos. 1 to 3 from the plaintiff, and fully described in Schedule 'D' to the plaint stood charged in favor of the plaintiff for the repayment of the sum of Rs. 4,92,868.19 mentioned in Schedule 'A' to the plaint together with further interest and for a declaration that the goods mentioned in the Schedule to the agreement for Hypothecation dated 22-12-71 described in Schedule 'C' to the plaint were charged and mortgaged and/or hypothecated for payment of the dues of the plaintiff; and for a preliminary mortgage decree in favour of the plaintiff under O.34, R.4 of the Code of Civil Procedure for the aforesaid sum with interest and costs and further interest according to law and for getting the decretal amount satisfied by the sale of the mortgaged properties and also the hypothecated properties, if the decretal amount was not paid by the defendants.

(3.) The defendant No. 1 firm of which the defendant No. 2 Sujit Kumar Ghosh and defendant No. 3, Prasanta Kumar Ghosh were the partners took loans from the plaintiff bank against the equitable mortgage by depositing the title deeds in respect of the properties and against the hypothecation of some moveable properties as mentioned above and also on the guarantee given by the guarantors, viz., the defendant No. 4 Mamata Ghosh and defendant No. 5, Parimal Bala Ghosh who is the mother of the defendant No. 3. The defendant No. 4 filed the petition for temporary injunction in the trial Court in December, 1982, in the aforesaid title suit instituted in 1977 for restraining the defendant No. 3 from disposing of his personal properties till the disposal of the suit on the allegation that in the said suit the plaintiff bank prayed for a personal decree against the defendants and that the personal properties of the defendant partners of the firm were to be attached and sold to satisfy the amounts of the decree, if any, before the decree-holder would lay its hand upon the personal properties of the guarantors to get the decree satisfied. It was further alleged that the defendant No. 3 had already sold some of his personal properties after the filing of the suit by the plaintiff bank and that further transfer or encumbering of the personal properties of the defendant No. 3 would give rise to complication and would put the guarantor defendant No. 4 to serious loss, inconvenience and prejudice.