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Judgment
S. Rajeswaran, J.—Original Application No. 362/2004 has been filed by the plaintiff for an order of ad interim injunction restraining respondents 1 and 2, their employees, servants, agent, assignees, nominees or person or persons claiming through or under them from in any manner disturbing, interfering, dispossessing or obstructing in any manner the peaceful ownership, possession, use and enjoyment of the superstructures, being the factory building other constructions and plant, machineries, etc., at No. 96 Anna Salai, Nagalkeni, Chromepet, Chennai 6000 044, more fully described in the Schedule B of the plaint and in the schedule attached to the Judge a summons.
Application No. 4083/2006 has been filed by defendants 1 and 2 to vacate the interim injunction granted by this Hon''ble Court on 22.4.2004 in O.A. No. 362/2004 in C.S. No. 357/2004, pending disposal of the above suit.
For the sake of convenience, parties are referred to as per their ranking in the suit.
The plaintiff filed the above suit for the following reliefs:
a) Declaring that 1st and 2nd defendants have no security interest or any charge or lien or right of whatsoever nature against the superstructure on the Schedule A property more fully described in Schedule B, being he factory building, other constructions and plant, machineries, etc., erected thereon including all furniture, fixtures and movables by the said M/s. Waczech Leather industry, the affairs of which are managed by the plaintiff;
b) Declaring that the said M/s. Waczech Leather Industry, represented by the plaintiff herein has the right to possess, use and enjoy the Schedule A property, as the said land was given and contributed by Late Mr. Wazid Ali to the said M/s. Waczech Leather Industry;
c) Granting permanent injunction restraining 1st and 2nd defendants, their employees, servants, agent, assignees, nominees or person or persons claiming through or under them from in any manner disturbing, interfering, dispossessing or obstructing in any manner the peaceful ownership, possession, use and enjoyment of the superstructures, more fully described in the Schedule B, being the factory building other constructions and plant, machineries etc., erected on the Schedule A property, including all furniture, fixtures and movables, by the said M/s. Waczech Leather Industry, the affairs of which are managed by the plaintiff.
The plaint averments in brief are as under:
A piece and parcel of land situated at Pammal Village, Saidapet Taluk, Chengleput District, bearing patta No. 585, more fully described in Schedule A, originally belonged to one Mr. Wazid Ali, father of Late Mr. Shameem Ahmed. The plaintiff is the widow of late Mr. Shameem Ahmed, who was running the business of M/s. Waczech Leather Industry as partner. After his demise, the plaintiff is managing the leather industry from June 2000 onwards, in terms of the order of this Court dated 21.6.2000 in O.A. No. 30/2000.
It is the case of the plaintiff that Schedule A property was later on given to the leather industry and the leather industry has constructed its factory on the said land and is carrying on its activities and providing employment to various people.
While so, in 1994, the 1st defendant bank sanctioned various credit facilities to the 3rd defendant and as 3rd defendant is a close relative of Late Mr. Shameem Ahmed, he deposited the title deeds of the suit Schedule A land with first defendant as collateral security.
In 1998, 1st defendant filed O.A. No. 452/1998 before the Debts Recovery Tribunal u/s 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 against the 3rd defendant and its partners and also against Late Mr. Shameem Ahmed and after the death of Mr. Shameem Ahmed, all the legal heirs including the plaintiff are impleaded in O.A. No. 452/1998.
When the matter is pending in O.A. No. 452/1998, 2nd defendant bank issued a notice dated 25.11.2003 under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, wherein 2nd defendant threatened that if the amount: mentioned in the notice is not paid within 60 days, they would take over the possession of the Schedule B property with all superstructures also.
The plaintiff''s contention is that the security interest vested in favour of defendants 1 and 2 is only land as described in Schedule A and not the superstructures on Schedule A property, which includes factory building, other constructions and installations of plant and machineries belonged to and owned by the leather industry.
It is the further case of the plaintiff, that defendants 1 and 2 wanted to take over possession of the said superstructures on Schedule A property, when they do not have any security interest in respect of the said superstructures. Hence the above suit was filed for the above said reliefs.
The plaintiff has also filed an application in O.A. No. 362/2004 for an order of interim injunction.
This Court by an order dated 22.4.2004 granted an order of interim injunction as prayed for.
Defendants 1 and 2 entered appearance through their counsel and filed Application No. 4083/2006 to vacate the order dated 22.4.2004 in O.A. No. 362/2004.
In their common affidavit filed in support of Application No. 4083/2006, it was stated by defendants 1 and 2 that Late Mr. Shameem Ahmed in order to enable 3rd defendant to avail credit facilities stood as guarantor and mortgaged the suit schedule property including the superstructure as additional security.
Defendants 1 and 2 have also filed an additional affidavit contending that the suit itself is not maintainable before this Court and the same is to be transferred to the Debts Recovery Tribunal to be tried along with O.A. No. 452/1998.
Heard the learned Counsel for the plaintiff and the learned Counsel for defendants 1 and 2. I have also perused the documents filed and the judgments relied on by them in support of their submissions.
The suit itself was laid before this Court on the ground that what was mortgaged is only lands and not the superstructures and therefore defendants 1 and 2 cannot take possession of the superstructures which includes factory buildings, machineries, installations, etc.
But defendants 1 and 2 filed a lot of documents to disprove the above contention of the plaintiff and also to prove their statement that what was mortgaged is not only lands but also the superstructures.
The following documents were filed before this Court by defendants 1 and 2 to prove that superstructures were also offered as security by the husband of the plaintiff;
1) Legal opinion of Bank''s advocate dated 18.5.1987
2) Legal opinion of bank''s advocate dated 25.11.1988
3) Sanction letter of the bank dated 23.8.1989.
4) Letter of undertaking dated 29.5.1992 by legal heirs of Mr. Wajid Ali.
5) Letter dated 1.11.1994 issued by the bank to 3rd defendant
6) Form No. 84AA-Memorandum of deposit of title deeds executed by late Mr. Shamim Ahmed.
7) Valuation report dated 4.9.1996.
A perusal of the above mentioned documents would clearly establish that what was mortgaged is not just lands, but also the superstructures put up on the lands. In fact in the valuation report dated 4.9.96, it is clearly mentioned that the building constructions were reported to be put up in 1974 with regard to items 1 to 6 and in 1976 for the items 7 to 9.
Further in O.A. No. 452/1998 itself, it was clearly mentioned that what was given as security is land and buildings and therefore the plaintiff''s contention that only in the notice issued under the Securitisation Act, defendants 1 and 2 made a mention of the superstructures also is not correct and in fact the plaintiff is guilty of filing a false affidavit for the sake of getting an order of interim injunction. That itself is sufficient to vacate the order of injunction.
Even though the maintainability of the suit and the jurisdiction of this Court are argued elaborately by both the learned Counsel relying on the decisions of the Supreme court and this Court, I am not inclined to consider the same at this stage as I am satisfied that the injunction already granted by this Court is to be vacated on merits and also under Order 39 Rule 4 CPC, according to which if any affidavit supporting an application for injunction contains a false or misleading statement, the injunction is to be vacated by the court.
In the result, Application No. 4083/2006 is allowed and O.A. No. 362/2004 is dismissed. No costs.