SANDHYARANI SUBUDHI Vs. KATIN MADHUSUDAN SENAPATI

JUDGEMENT

(1.) THIS writ application is directed against the judgment and order dated 20th March 2007 passed by the learned 1st Addl. District Judge, Puri in FAO No.8/176 of 2007 -2006 confirming the order passed by the learned Civil Judges (Sr. Division), Puri in I.A. No.148 of 2006 rejecting an application for grant of injunction.

(2.) THE plaintiffs are the petitioners before this Court. They have filed C.S. No.294 of 2006 for partition and carving out 3/7th share and also for declaration that the deed of relinquishment is void and also for permanent injunction. In the said suit an application was filed under Order 39, Rules 1 and 2 of the C.P.C. for grant of injunction/preservation of 1/7th share in the suit property till disposal of the suit. The case of the plaintiff -petitioners is that originally the suit property was purchased by Saraswati, Sabitri and Sakuntala, who are sisters -in -laws, being the wives of three brothers. Saraswati died issue -less. Accordingly, her share devolved upon other two brothers and ultimately on plaintiff -petitioners and defendants 2 and 3. It is also the case of the plaintiff -petitioners that late Surya Narayan misrepresenting the petitioners and playing fraud to the extent that a power of attorney is required for mutation of the suit property, obtained a deed of relinquishment on 19.06.1998 which was discovered on 08.08.2006. The said Suryanarayan obtained a loan from defendant No.6 on the strength of the said deed of relinquishment. It is also the case of the plaintiffs that Suryanarayan had no title over the suit property so far as share of the plaintiffs are concerned. Since the loan obtained by Suryanarayan remained unpaid, defendants 6 and 7 proceeded against them under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and threatened to sell the property kept under mortgage. The sole case of the plaintiffs is that the defendant No.2 and Suryanarayan have no title over the suit property and they have misutilised the deed of relinquishment which was taken by fraud from the petitioners stating it to be a power of attorney and, therefore, the bank has no authority to either take over the mortgaged property or sale it under the Act. The contesting opposite parties filed objection stating that the Court lacks jurisdiction under the Act to entertain the suit and it was also averred that the suit filed by the plaintiffs is a collusive suit to frustrate the mortgage and payment of loan dues.

(3.) SHRI Mohanty, the learned counsel appearing for the petitioners contended that if the entire property is sold and ultimately the petitioners succeed in the suit, they cannot get back their 3/7th share property and the same cannot be compensated. Shri Rath, the learned counsel appearing for the contesting opposite parties 6 and 7 submitted that under the Act, Bank is authorized to sale the mortgaged property in the event of failure on the part of the loanee to pay back the amount. The Court cannot therefore, restrain the statutory powers of the Bank given under the Act and pass an order of injunction. It was also contended by Shri Rath, the learned counsel appearing for the Bank that the petitioners are not illiterate and having full knowledge about contents of the document i.e. the deed of relinquishment, signed the same. Therefore, the plea taken now before this Court is not acceptable.