At, High Court of Himachal Pradesh
By, THE HONOURABLE MR. JUSTICE V.M. JAIN
For the Appearing Parties: Bhupendra Gupta, Neeraj Gupta, Devyani Sharma, Advocates.
(1.) This appeal has been filed by the plaintiffs against the order dated 30-7-2004 passed by the District Judge dismissing the application under Order 39, Rules 1 and 2 read with Section 151. CPC in a suit for declaration.
(2.) The facts, which are relevant for the decision of the present appeal, are that the plaintiffs had filed a suit for declaration that the Civil Court decree dated 25-3-1997 obtained by the defendant-Bank was obtained by it by fraud etc from the District Judge, Sirmaur at Nahan and that the same was illegal and void and not binding on the plaintiffs. Along with the suit an application under Order 39, Rules 1 and 2, CPC read with Section 151, CPC was also filed by the plaintiffs seeking to restrain the defendant, by way of ad interim injunction, from attaching auctioning or selling the disputed property till the disposal of the suit.
(3.) The suit was contested by the defendant-Bank by filing written statement. Reply to the application under Order 39, Rules 1 and 2 read with Section 151, CPC was also filed alleging therein that no case for grant of ad interim injunction was made out especially when the defendant-Bank was effecting the sale of the disputed property in accordance with law through the Debt Recovery Tribunal, Chandigarh.
(4.) The plaintiff filed rejoinder to the said reply. After hearing both sides and perusing the record the learned District Judge dismissed the ad interim injunction application, vide order dated July 30, 2004. Aggrieved against the same, the plaintiffs filed the present appeal in this Court under Order 43, Rule l(r), CPC.
(5.) After hearing the learned counsel for the parties and perusing the record, in my opinion, there is no merit in this appeal and the same liable to be dismissed.
(6.) As referred to above, the plaintiffs had filed the suit for declaration simpliciter, challenging the Civil Court decree dated 25-3-1997 passed
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by the District Judge, Sirmaur at Nahan, in the case titled State Bank of India v. Tej Straw Board Pvt. Ltd. The only prayer made in the suit was as follows :"It is therefore, respectfully, prayed that a decree of declaration to the effect that the defendant obtained a decree for mortgage in respect of H No. 3086, situated at Sector 35-D, Chandigarh, in Civil Suit No. 13-N/1 of 1995/1987 fraudulently and by misrepresenting the facts and falsely claiming that the Title Deeds were possessed of by it, and as such, the decree qua mortgage is illegal, void and non est and has no bearing vis-avis the rights of the plaintiffs and further that the said mortgage decree is nullity, non est in law as the same is without jurisdiction. The plaintiffs are entitled for the rent, from the date of institution of Civil Suit No. 428 dated 4-12-1989 till date, along with interest @ 24% PA along with costs of the suit, or any other relief which under the circumstances this Hon'ble Court deems appropriate may also be granted."(7.) From a perusal of the above, it would be clear that except seeking a declaration with regard to the legality or otherwise of the Civil Court decree dated 25-3-1997, the plaintiffs had not sought any consequential relief by way of permanent or mandatory Injunction. Even in the body of the plaint, no such reference had been made except making a reference that the defendants had moved the Debt Recovery Tribunal, Chand garh.(8.) At the time when the appeal came up for hearing before me on 25-8-2005, the learned counsel appearing for the appellants had prayed for a short date to seek instructions as to whether the appellants had moved or were moving the trial Court for the amendment of the plaint so as to incorporate the plea of permanent injunction in the suit filed by them. Resultantly, the appeal was adjourned. On 30-8-2005 also, the learned counsel prayed for some more time to seek instructions and accordingly, the case was adjourned. On 6-9-2005, the learned counsel appearing for the appellants informed the Court that neither any prayer has been made for the amendment of the plaint nor there is any move to seek amendment of the plaint for seeking the relief of permanent/mandatory injunction by way of consequential relief. Accordingly, part arguments were heard on 6-9-2005 and the case was fixed for 7-9-2005 i.e. today for remaining arguments. Today, the remaining arguments have been heard.(9.) From a perusal of the above, it would be clear that it is the admitted case of the parties that the plaintiffs had filed the suit for declaration simpliciter and had not asked for any injunction, permanent or mandatory, by way of consequential relief. It would also be clear that time was granted to the learned counsel for the plaintiff-appellants to seek instructions as to whether the plaintiffs had moved any application for the amendment of the plaint so as to seek the prayer for injunction by way of consequential relief and whether there was any move on the part of the plaintiffs to move any such application before the learned District Judge. However, as referred to above, after seeking instructions, the learned counsel appearing for the plaintiff-appellants submitted before me that neither any application for amendment of the plaint had been filed nor there was any move on the part of the plaintiffs to file any such application for the amendment of the plaint.(10.) From the above, it would be clear that even though the plaintiffs are only seeking a declaration about the legality or otherwise of the Civil Court decree dated 25-2-1997 passed by the Civil Court, and have not made any prayer in the plaint for the grant of permanent or mandatory injunction by way of consequential relief, yet the plaintiffs had filed the application under Order 39, Rules 1 and 2 CPC read with Section 151. CPC for the grant of ad interim injunction, during pendency of the suit, restraining the defendant-Bank from attaching, auctioning or selling the property in dispute till the disposal of the suit. When the learned trial Court had passed the impugned order dated 30-7-2004 and had dismissed the ad interim injunction application of the plaintiffs the learned trial Court had noticed that in the present suit, no consequential relief of permanent injunction had been sought. It was observed by the learned trial Court (District Judge) that an application for temporary injunction is competent only when a suit for permanent injunction is pending or to be more precise, relief of permanent injunction is claimed in the present suit. It was further found that application for temporary injunction without claiming the consequential relief of permanent injunction in the main suit would not be maintainable in the eyes of law. In my opinion, the view taken by the learned District Judge in this regard while dismissing the ad interim injunction application, is perfectly in accordance with law and no fault could be found with the same.(11.) This Court was considering the same question in the case Gobind Ram etc. v. Mandi-Kullu Transport Corporation Mandi, etc. ILR 1974 Himachal Pra 683. While considering the ad interim injunction application, it was found by this Court that it was only a miscellaneous application for injunction restraining the defendant in the suit. It was found that in fact this was not at all a subject matter of the suit nor was there any prayer in the same and, therefore, in the absence of any prayer or any averment in the plaint, the petitioners could not be heard to say that they were entitled to any injunction because there was no suit in which this prayer could be granted to them. It was further found by this Court that the three ingredients required for the grant of ad interim injunction could only be considered when there is a suit with regard to that particular relief or claim. It was found that in the suit, the plaintiffs had only made a prayer for declaration without any prayer for permanent injunction by way of consequential relief.(12.) In Jayathirth Ramacharya Gudi v. Bindumadhavacharya Srinivasacharya Gudi, 1996 (2) CCC 216 : (1996 AIHC 2360) the Karnataka High Court was considering a similar question as to whether ad interim injunction could be granted in a suit where no such prayer has been made in the plaint, without amending the plaint. After considering the entire matter, it was held by the Karnataka High Court that where no relief had been claimed against defendants No. 4 and 5 in the main suit, no ad interim injunction could be granted against defendants No. 4 and 5. It was observed that if the plaintiffs had any cause of action against defendants No. 4 and 5 then the proper course would have been to file a suit against defendants No. 4 and 5 with a prayer for the grant of permanent injunction. It was found that in the absence thereof, the grant of ad interim injunction against defendants No. 4 and 5 amounted to making out a new case which had not been pleaded and for which no cause of action had been alleged in the plaint. It was further held that the Court could not grant relief other than what had been claimed in the suit. Reliance in the case was placed on the law laid down, by a Division Bench of the Karnataka High Court, in the case of Indirabai v. Prof. Shyamasunder, 1988 (1) Kant LJ 426. Reliance was also placed on the law laid down by the Hon'ble Supreme Court in the case of Messrs. Trojan and Company v. Nagappa Chettiar, AIR 1953 SC 235.(13.) In Mohammad Ibrahim Khan 'v. Pateshwari Prasad Singh, AIR 1960 All 252, it was held by a Division Bench of Allahabad High Court that where the suit was for declaration only, no ad interim injunction could be granted. It was further held as under :"We are definitely of opinion that in a suit for declaration simpliciter such injunctions should not be issued."A similar view was taken in Kangabam Biramangol Singh v. Laimayum Ningol Aribam Ongbi Madhabi Devi, AIR 1962 Manipur 55, in which it was held that in a suit for declaration of title simpliciter it cannot be said that there is any property dispute within the meaning of Order 39, Rules 1 and 2, CPC and consequently neither the plaintiff nor the defendant will be entitled to apply for a temporary injunction to restrain the other party from interfering with the possession. Reliance was placed on the law laid down by Nagpur High Court in Fakira Mahadaji v. Mt. Rumsukhibal, AIR 1946 Nagpur 428 and also in the case of Konjengham Babudhom Singh v. Hemam Romonyaima Singh, AIR 1962 Manipur 18.(14.) In Amma Shah v. Ismail Shah, AIR 1972 Jammu and Kashmir 79, it was held by a Division Bench of Jammu and Kashmir High Court that when a plaintiff brings a suit for declaration of title on the basis of his possession and alleges that he apprehends an interference from the defendants, he must before claiming an interim relief of temporary injunction specifically pray either for permanent or for mandatory injunction in the suit. It was further held that the order of the Court granting temporary injunction in the absence of any such prayer in the suit, cannot be sustained. Reliance was placed on AIR 1960 All 252 (supra) and AIR 1962 Manipur 18 (supra). Similar view was taken in Jairam Ramchandra Sirsat v. Baburao Manguesh Karekar, AIR 1973 Goa Daman and Diu 1.(15.) In view of the law laid down in the above mentioned authorities and taking into consideration that the plaintiffs had filed the suit for declaration simpliciter without making a prayer in the suit for permanent or mandatory injunction by way of consequential relief, in my opinion, the learned trial Court (District Judge) was perfectly justified in dismissing the ad interim injunction application, since no such ad interim injunction could be granted in favour of the plaintiffs in the absence of any prayer made in the main suit for the grant of permanent or mandatory injunction by way of consequential relief. It may also be noticed here that even though the plaintiff-appellants had ample opportunity to amend the plaint so as to incorporate the prayer for the grant of permanent/mandatory injunction by way of consequential relief, they had not only failed to do so but the plaintiff-appellants had no intention to seek the amendment of the plaint so as to incorporate this relief as a consequential relief.(16.) Even otherwise, in my opinion, no case was made out for the grant of ad interim injunction in favour of the plaintiff- appellants, keeping in view the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Act). Section 17(1) of the Act provides that a Tribunal shall exercise the jurisdiction, power and authority to entertain and decide applications from the Banks and Financial Institutions for Recovery of debts due to such Banks and Financial Institutions. Section 18 of the Act provides that no Court or other authority shall have or be entitled to exercise any jurisdiction, powers or authority in relation to the matters specified in Section 17. These provisions of the Act had come up for consideration before the Hon'ble Supreme Court in the case Allahabad Bank v. Canara Bank (2000) 101 Company Cases 64 : (AIR 2000 SC 1535) and after considering various provisions of the Act, it was held by the Hon'ble Supreme Court as under :"It is clear from Section 17 of the Act, that the Tribunal is to decide the applications of banks and financial institutions for recovery of debts due to them. We have already referred to the definition of 'debt' in Section 2(g) as amended by Ordinance No. 1 of 2000. It includes 'claims' by banks and financial institutions and includes the liability incurred and also liability under a decree or otherwise. In this context Section 31 of the Act is also relevant. That section deals with transfer of pending suits or proceedings to the Tribunal. In our view, the word "proceedings" in Section 31 includes "execution proceedings" pending before a civil Court before the commencement of the Act. The suits and proceedings so pending on the date of the Act stand transferred to the Tribunal and have to be disposed of "in the same manner" as applications under Section 19. In our opinion, the jurisdiction of the Tribunal in regard to adjudication is exclusive. The RDB Act requires the Tribunal alone to decide applications for recovery of debts due to banks or financial institutions. Once the Tribunal passes an order that the debt is due, the Tribunal has to issue a certificate under Section 19(22) (formerly under Section 19(7)) to the Recovery Officer for recovery of the debt specified in the certificate. The question arises as to the meaning of the word "recovery" in Section 17 of the Act. It appears to us that basically the Tribunal is to adjudicate the liability of the defendant and then it has to issue a certificate under Section 19(22). Under Section 18, the jurisdiction of any other Court or authority which would otherwise have had jurisdiction but for the provisions of the Act, is ousted and the power to adjudicate upon the liability is exclusively vested in the Tribunal. (This exclusion does not however apply to the jurisdiction of the Supreme Court or of a High Court exercising power under article 226 or 227 of the Constitution). This is to the effect of Sections 17 and 18 of the Act. We have held that the provisions of Sections 17 and 18 of the RDB Act are exclusive so far as the question of adjudication of the liability of the defendant to the appellant-bank is concerned."It was further held in the said authority that the jurisdiction of the Tribunal with regard to adjudication is exclusive and the Act requires the Tribunal alone to decide the applications for recovery of debts due to Banks and Financial Institutions. It was further held that once an order is passed that the debt is due the Tribunal is to issue a Cer tificate to the Recovery Officer for the recovery of the debt specified in the certificate. It was further held that basically the Tribunal is to adjudicate the liability of the defendant and then it has to issue a certificate to the Recovery Officer for the recovery of debt. It was further held that under Section 18 of the Act the jurisdiction of any other Court or authority is ousted and the power to adjudicate upon the liability was exclusive upon the tribunal. With regard to the execution of recovery certificates by the Recovery Officers it was held that the Act overrides other laws to the extent of inconsistency. It was further held that the prescription of an exclusive Tribunal both for adjudication and execution is a procedure clearly inconsistent with realization of these debts in any other manner. It was further held that the jurisdiction of the Recovery Officers to execute the certificates issued by the Tribunal was exclusive and it is within the exclusive jurisdiction of the Recovery Officers and no other Court or authority much less the civil Court could go into the question relating to the liability and the Recovery.(17.) The law laid down by the Hon'ble Supreme Court in the above-mentioned authority was relied upon by Madras High Court in the case of Shanthi Vihar v. Syndicate Bank, 2001ISJ (Banking) 672 wherein as well, a similar question which has arisen in the present appeal, had arisen and it was held by the Madras High Court that the plaintiffs could not seek the relief of permanent injunction against the Bank by seeking a declaration that the mortgage decree obtained by the Bank was null and void and not binding upon the plaintiffs as it had been obtained fraudulently and also seeking the relief of permanent injunction. It was found by the Madras High Court that under such circumstances the plaintiff would have no prima facie case nor the balance of convenience would be in favour of the plaintiff.(18.) Admittedly, the proceedings for the recovery of the amount due are pending before the Debt Recovery Tribunal, Chandigarh in the application under Order 39, Rules 1 and 2, CPC read with Section 151, CPC filed by the plaintiffs before the trial Court along with the suit. The plaintiffs are seeking to restrain the defendant-Bank from attaching, auctioning or selling the suit property till the disposal of the suit. This in my opinion would amount to restraining the Debt Re covery Tribunal and the Recovery Officer from proceeding to recover the amount due in accordance with law. I am further of the opinion that even otherwise so such injunction could be granted in favour of the plaintiffs, as the same would amount to interference with the functioning of the Debt Recovery Tribunal and the Recovery Officer.(19.) It may also be noticed here at this stage that the plaintiff-appellants have already filed objections before the Debt Recovery Tribunal and the same are stated to be still pending. The plaintiff-appellants having initiated a remedy that may be available to them, in my opinion, would not be entitled to the grant of ad interim injunction in the present suit for declaration. I am further of the opinion that the learned District Judge had rightly dismissed the ad interim injunction application of the plaintiffs and no fault could be found with the same.(20.) For the reasons recorded above finding no merit in this appeal the same is thereby dismissed. However nothing stated above shall be taken as an expression of opinion on the merits of the case. Appeal dismissed.
"2006 AIR (HP) 57"