AI Structured Summary
Not yet generated for this judgment
Judgment
Rule. Rule made returnable forthwith and heard finally with consent of parties.
The petitioner (original plaintiff) takes exception to order dated 11.08.2025 passed by District Judge-3, Kolhapur in Miscellaneous Civil Appeal No.83 of 2025, thereby upholding order dated 13.05.2025 passed by 7th Joint Civil Judge, Senior Division, Kolhapur below Exhibit-100 in Special Civil Suit No.221 of 2024, whereby application of petitioner/plaintiff for grant of temporary injunction against respondents/defendants in a suit for partition and separate possession has been declined.
Brief facts giving rise to present writ petition can be stated as under :
The petitioner instituted Special Civil Suit No.221 of 2024 contending that suit properties are coparcenary properties of plaintiff and defendant nos.1 to 8. Till this date, there is no partition by metes and bounds amongst plaintiff and defendant nos.1 to 8. The respondent no.9 is a Co-operative Bank. The respondent nos.1, 5 to 8 mortgaged suit property in favour of respondent no.9/bank without authority or consent of plaintiff. The respondent no.9 has initiated action under provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) to acquire interest in property. The respondent no.9 took property No. 1-A into its possession. The respondent nos.1, 5 to 9 are likely to create third party interest in property ignoring right of petitioner. Hence, petitioner instituted suit seeking partition and separate possession of his 1/24th share and sought injunction against defendant nos.1, 5 to 9 from transferring or creating third party interest over suit property.
The petitioner filed an application below Exhibit-100 for temporary injunction against defendant nos.1, 5 to 9 from alienating suit properties or creating third party interest or disturbing peaceful possession over suit property till final disposal of suit. The Trial Court rejected said application vide order dated 13.05.2025. Aggrieved petitioner had filed Miscellaneous Civil Appeal No.83 of 2025 before District Judge at Kolhapur, who rejected Appeal vide order dated 11.08.2025. Hence, this writ petition.
Mr. Chetan Patil, learned advocate appearing for petitioner would submit that respondent no.1 filed written statement admitting that suit properties are coparcenary properties of family of plaintiff and defendant nos.1 to 8. The petitioner is not party to mortgage or loan transaction between defendant nos.1, 5 to 7 and 9. The respondent no.9/bank had filed an application below Exhibit-32 under Order VII Rule 11(d) of Code of Civil Procedure seeking rejection of plaint. The said application was rejected by Trial Court. The respondent no.9/bank had filed Civil Revision Application No.221 of 2024 before this Court. While rejecting Civil Revision Application, this Court observed in para 27 that, prima facie, there is material to indicate that suit properties in respect of which partition is claimed are impressed with the character of joint family properties. The DRT has no jurisdictional competence to decide questions of character of joint family properties or right of inheritance in property. Therefore, Civil Court has exclusive jurisdiction. The bar under Section 34 of the SARFAESI Act would not attract in such case. He would, therefore, urge that this was a fit case for grant injunction as prayed for. However, Trial Court as well as Appellate Court miserably failed to appreciate pleadings of parties and legal position while rejecting petitioner’s application for grant of temporary injunction.
In support of his contentions, he relies upon observations of Supreme Court in case of Central Bank of India and Another Vs. Prabha Jain and Others1, observations of Division Bench of this Court in case of Bank of Baroda Vs. Gopal Shriram Panda and Another 2 and observations of High Court of Rajasthan at Jaipur in case of Mohal Lal and Another Vs. Dwarka Prasad and Ors3.
Per contra, Mr. Prashant Chitnis, learned advocate appearing for respondent no.9/bank would submit that present suit is filed with an intention to create hindrance in recovery proceedings initiated by bank under provisions of SARFAESI Act. The suit properties are mortgaged against cash credit facilities secured by original owner Mr. Girdharilal Hukumchand Sarada i.e. grandfather of petitioner and other family members. He would submit that bank has obtained necessary orders under provisions of SARFAESI Act and possession of suit properties Nos.1C and 1A. The plaintiff has already availed remedy under Section 17 of SARFAESI Act before Debt Recovery Tribunal, so also obtained interim orders in Appeal filed before Debt Recovery Appellate Tribunal, Mumbai. The petitioner’s father has also availed such remedy and after failure, present suit is instituted. He would submit that once action under Section 13 of the SARFAESI Act is taken by secured creditor, Civil Court cannot issue prohibitory orders or injunction in view of Section 34 of the SARFAESI Act. He would further submit that both Courts observed that there is no evidence that suit properties are joint family properties or purchased out of joint family corpus. Therefore, there is no merit in writ petition.
In support of his contentions, he relies upon observations of Supreme Court of India in case of Shashidhar and Others Vs. Ashwini Uma Mathad and Another4, Punjab and Sind Bank Vs. Frontline Corporation Limited5 and observations of Single Judge of this Court in cases of Mrs. Smita Sunil Wadalkar Vs. Shri Jitendra Vasantrao Kulkarni and Others (Appeal From Order No.8 of 2022 decided on 15.06.2022) and Smt. Deepa Datta Naik and Another Vs. None (First Appeal No.317 of 2025 decided on 04.03.2025).
Having considered submissions advanced by learned advocates appearing for respective parties and on perusal of record tendered into service before this Court, it can be observed that petitioner has instituted suit seeking partition and separate possession of properties described in plaint paragraph no.1. The petitioner has given genealogy in paragraph no.2. One Girdharilal Hukumchand Sarada/grandfather of petitioner was head of family. The property at Serial Nos.1-A and 1-B appears to have been purchased by him in years 1983 and 1992 respectively and same has been mortgaged in year 2014 with respondent/bank towards security of cash credit facility. The property at Serial No.1-C is purchased in year 2004 by uncle of petitioner. The properties at Serial Nos.1-D and 1-E are purchased in the name of M/s. Pore Brothers in years 1999 and 2005 respectively, whereas property at Serial No.1-U is purchased in year 2003 by father of petitioner.
Although plaintiff has pleaded that all properties are joint family properties of Hindu family and endavours to impress joint status of the family, prima facie, it can be observed that properties at Serial Nos.1-A and 1-B were exclusively owned by petitioner’s grandfather Girdharilal and during his lifetime, he mortgaged in favour of bank against cash credit facility. The plaintiff instituted suit in year 2024 when he was 26 years of age. It is, therefore, apparent that properties were purchased even before birth of petitioner. The other properties in the name of petitioner’s father and uncle were purchased in years 2003 and 2004. It shows exclusive title in their favour. The properties at Serial Nos.1-D and 1-E are in name of M/s. Pore Brothers. The respondent nos.5 to 8 are Directors of that firm.
In this background, prima facie, Trial Court as well as Appellate Court observed that material on record is not sufficient to draw inference that suit properties are coparcenary properties or joint Hindu family properties. It is for petitioner to prove joint nucleus by leading cogent evidence. Therefore, prima facie, findings recorded by Courts below need not be replaced by this Court in exercise of Writ jurisdiction under Article 227 of the Constitution of India.
The Supreme Court in case of Wander Ltd. Vs. Antox India (P) Ltd6, observed that “the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.”
In light of aforesaid exposition of law, it is difficult for this Court to reassess or re-appreciate prima facie opinion expressed by Courts below and reach to conclusion that suit properties are coparcenary properties, wherein plaintiff can assert a birth right. Pertinently, there is no partition amongst father of petitioner and his uncles. The petitioner’s father has not claimed right in properties standing in name of his brother or his father.
Although, Mr. Patil, learned advocate appearing for petitioner seeks to rely upon observations of this Court recorded in order dated 16.04.2025 in Civil Revision Application No.521 of 2024 to contend that this Court affirmed position that suit properties are impressed with character of joint family properties, such contention cannot be accepted for reason that those observations were made while dealing with application for rejection of plaint and this Court has referred only pleading in plaint without looking to other material to find out, if jurisdiction of the Civil Court is ousted in view of provisions contained in SARFAESI Act. However, Trial Court and Appellate Court looking to the pleadings as well as other material found that plaintiff could not prima facie make out a case to accept his contention that suit properties are joint family or ancestral properties.
Undisputedly, respondent no.9/bank has initiated proceeding under Section 13 of the SARFAESI Act and took over symbolic possession. The copies of notice under Section 13(4) and panchnama are placed on record by way of compilation. It can be observed that first two properties are mortgaged by Girdharilal/grandfather of petitioner. Those were purchased and standing in his name. The properties at Serial Nos.3 and 6 shows title in name of petitioner’s uncle and father and those have been mortgaged by them. The properties at Serial Nos.4 and 5 were purchased in name of M/s. Pore Brothers and mortgaged by respondent nos.5 to 8 in favour of bank. It is, therefore, difficult to prima facie accept that petitioner has any right in suit properties. Even, assuming that plaintiff has certain right, coparcener or Karta has right to deal with properties to the extent of his share and create a mortgage. If it is found that exercise of right by coparcener is beyond his right in property, mortgage can be held invalid to that extent only.
In light of aforesaid observations, particularly when bank has initiated action under Section 13 of the SARFAESI Act for enforcement of security interest, Trial Court as well as the Appellate Court is justified in refusing injunction to restrain bank/secured creditor from enforcing measures under Section 13 of the SARFAESI Act. Pertinently, petitioner has already availed remedy under SARFAESI Act before Debt Recovery Tribunal or Appellate Tribunal and obtained interim orders subject to certain conditions.
In that view of matter, Trial Court as well as Appellate Court is justified in rejecting application for temporary injunction. No jurisdictional error can be found in impugned orders warranting interference in Writ jurisdiction of this Court
In result, writ petition stands dismissed.
Rule stands discharged.