DEEPAK SIKARIA Vs. SHYAM SUNDAR SIKARIA

JUDGEMENT

(1.) 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 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 the defendants-respondents 2 and 3 from recovering the debt of defendant no. 1 by putting into sale the ? .. "rd 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 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 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 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.