Smt Babeeta Goyal vs Smt Ratana Bai & Ors.

For convenience, the appellant is referred to as the 'plaintiff' and the respondents are referred to as the 'defendants' as per their respective status in the suit. The suit property, for the purpose of this order, would mean House No.29/742 situated at Raj Payga Road, Lashkar, Gwalior.

[2]. Further, since the temporary injunction in these appeals relates only against the defendant no.9 to 11, who are represented through their counsel, the appeals are heard finally with the consent of learned counsel for parties.

[3]. The appellant/plaintiff has filed this miscellaneous appeal under Order 43 Rule 1(r) of the CPC, challenging the order dated 01.09.2022 passed by the 8th District Judge, Gwalior in Civil Suit No.996-A of 2021, whereby her application under Order 39 Rules 1 & 2 of the CPC has been rejected by the learned Trial Court.

[4]. The plaintiff has filed a suit for declaration of her title over the suit property and has also prayed for a decree of permanent injunction, inter-alia, on the ground that the suit property consists of two adjoining house buildings. Part of the building was purchased in the name of Smt. Ratan Bai- defendant no.1 (plaintiff’s mother) vide registered sale deed no.4247 dated 21.09.1974, and the remaining portion was purchased vide registered sale deed no.4248 dated 21.09.1974 in the name of Smt. Chameli Bai (plaintiff’s grandmother). It is the claim of the plaintiff that the aforesaid suit property was purchased out of family funds and is, therefore, a coparcenary property, and she has a right/interest therein since birth. She has disputed the family settlement dated 30.09.1975 executed by Smt. Chameli Bai. She has also challenged another family settlement executed by her father, Dataram, on 30.03.1997. The plaintiff has further challenged the will dated 15.10.1975 executed by Smt. Chameli Bai in favour of defendant no.1. She has also questioned the mortgage created by her mother, defendant no.1, on 10.06.2020, 15.06.2020 & 22.06.2020 in favour of defendant no.9 through defendant no.10. The plaintiff has pleaded that since the suit property is a coparcenary property, she has a right/interest therein since birth, and therefore, the mortgage created by defendant no.1 in favour of defendant no.9 - Bank is without competence and illegal. It is also alleged that the mortgage created is fraudulent and without the consent of defendant no.1.

[5]. Since, defendant no.9 & 10 were proceeding further for recovery of their dues under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "SRFAESI Act"), the plaintiff also filed an application under Order 39 Rules 1 & 2 CPC, seeking to restrain the said defendants from proceeding further with the recovery of the amount from the suit property.

[6]. The defendant no.1, 2, 4, 6 & 7 have filed a common reply to the application. They have substantially admitted the plaintiff's claim. Additionally, they have pleaded that the mortgage created in favour of the bank is without the consent of defendants and the bank has fraudulently and unauthorisedly got the mortgage deeds executed and registered. It is alleged that the mortgage deed does not bear the signature of defendant no.1. The defendants have also alleged that they are not aware about the validity of the will dated 15.10.1975 executed by Chameli Bai in favour of defendant no.1. The thumb impression of Chameli Bai on the will is also disputed. They have further pleaded that the property in question is coparcenary property and is in their possession; execution of mortgage deed would not change the nature of the coparcenary property, and further stated that they have no objection if temporary injunction is granted in plaintiff's favour.

[7]. The defendant no.5 & 8 have filed separate reply to the application. However, they have also accepted the claim of the plaintiff. It is their pleading that the suit property has been purchased out of family funds on 21.09.1974 in the name of defendant no.1 and Smt. Chameli Bai. They have further stated that every family member is entitled to a share in the property. These defendants have also disputed the will executed by Smt. Chameli Bai in favour of defendant no.1. They have expressed no objection to issuance of temporary injunction in favour of the plaintiff.

[8]. The defendant no.9 to 11 have filed their reply to the application. It is stated that the suit property was purchased separately on 21.09.1974 in the names of defendant no.1 & Smt. Chameli Bai from its earlier owners, namely Bharat Sharma and Om Prakash Sharma. The property has been bequeathed by Chameli Bai in favour of defendant no.1 on 15.10.1975 itself, and the name of defendant no.1 has been recorded over the entire property in the municipal records.

[9]. It is also submitted by them that the firms namely M/s Murlidhar Dataram and M/s MDR Flour Mills Industries have availed financial facilities from the bank, and defendant no.1 stood as a guarantor for such financial facilities. In her capacity as guarantor, defendant no.1 has created mortgage in favour of the bank, which has been duly registered. It is further stated that defendant no.1 has further executed the loan documents, including the guarantee deed. These defendants have also stated that an amount of Rs.2,23,76,391.17 is to be recovered for which the proceedings under the SRFAESI Act have been initiated. They have also disputed the maintainability of the suit in view of Section 34 of the SRFAESI Act, 2002.

[10]. The learned Trial Court, vide order dated 01.09.2022, rejected the application. Though the learned Trial Court held the suit to be maintainable, it recorded a finding that the plaintiff failed to make out a prima facie case for grant of temporary injunction. It is against this order that the present appeal has been filed.

[11]. Challenging the impugned order, learned counsel for the plaintiff vehemently argued that the Trial Court erred in rejecting the application for grant of temporary injunction. He submitted that earlier the application under Order 7 Rule 11 CPC filed by defendant no.9 to 11 has been rejected by the learned Trial Court, holding the suit to be maintainable. Therefore, having held the suit maintainable, the Trial Court should have issued temporary injunction in favour of the plaintiff. He further argued that the suit property has been purchased out of family funds and the plaintiff, being a coparcener, is having right, title and interest therein since birth. It is his submission that even if the defendant no.1 has created a mortgage in favour of the bank, the same would not adversely affect the plaintiff’s interest in the property. Learned counsel also repeated the pleadings narrated above, taken by the plaintiff in the plaint. He thus prayed for issuance of temporary injunction restraining defendant no.9 to 11 from proceeding further for recovery of the amount from the suit property.

[12]. On the other hand, learned counsel appearing for the defendant no.9 to 11 refuted the aforesaid claim of the plaintiff. It is his submission that the suit property has been admittedly purchased in the name of defendant no.1 and Smt. Chameli Bai. Further, Smt. Chameli Bai bequeathed her property in favour of defendant no.1 on 15.10.1975 itself, and accordingly, defendant no.1 became the owner of the entire property. He further submitted that the property was mortgaged with the bank in the year 2017 itself towards security of financial facilities granted by the bank to M/s Murlidhar Dataram and M/s MDR Flour Mills Industries. The plaintiff never raised any objection when the financial facilities were being disbursed to the said firms based upon the aforesaid mortgage. As per his submission, since the aforesaid firms are the family firms, every member of the family, including the plaintiff and defendant no.1 to 8, were aware about the transactions with the bank. However, when it came to recovery of the amount from the suit property, the present suit has been filed collusively.

[ 1 3 ] . Learned counsel further submitted that the suit itself is not maintainable in view of Section 34 of the SRFAESI Act, and the plaintiff has an alternative remedy of approaching the Debt Recovery Tribunal under Section 17 of the said Act. He, therefore, supported the impugned order and prayed for dismissal of the appeal.

[14]. Considered the arguments and perused the record.

[15]. From the pleadings of the parties, the facts which are borne out are that the suit property was purchased separately in the name of defendant no.1 and Smt. Chameli Bai on 21.09.1974. After when Smt. Chameli Bai bequeathed her property to defendant no.1 on 15.10.1975, the name of defendant no.1 has been recorded in the municipal records. The bank has extended finance to the aforementioned firms based upon the guarantee furnished by defendant no.1 and the mortgage of suit house was created. It is also gathered that the present suit is filed only after proceedings for recovery of the loan amount is initiated by defendant no.9 to 11 under the SRFAESI Act.

[16]. The plaintiff has not stated that she was not aware about the loan transactions between the firms/defendant no.1 and the bank. Except defendant no.9 to 11, all other parties to the suit are members of the family. They are thus supposed to know about the loan transactions of the firm with the bank. No objection was raised by the plaintiff from 2017 till 2021, and objection is raised only when the recovery proceedings were initiated.

[17]. It is not the plaintiff alone who is now opposing the bank’s claim. Surprisingly, after availing the financial benefits, the defendant no.1 and the other defendants are also opposing the bank’s claim. The bank has extended the loan on the basis of the guarantee furnished by defendant no.1 and the mortgage created by her. The fact that all the defendants have admitted the claim of the plaintiff, stating that the suit property is a coparcenary, prima facie show a collusion between the plaintiff and the defendants.

[18]. Though the plaintiff alleges that the property is purchased out of family funds, it is yet to be established by her in the suit. As on date, when the entire property stands recorded in the name of defendant no.1, and she having secured the loan from the bank for the firms, it cannot be said that the recovery proceedings undertaken by the bank are illegal or unsustainable. The plaintiff can succeed only if she can establish by way of cogent evidence in suit that the property is a coparcenary.

[ 1 9 ] . Needless to mention whatever transaction happens during the pendency of suit is always subject to the decree that will be passed by the learned Trial Court. It is governed by the doctrine of lis pendens. However, in absence of prima facie case in favour of plaintiff, it is not in the fitness of things that the temporary injunction should be issued restraining the bank from recovering its dues.

[20]. The objection raised by learned counsel for defendant no.9 to 11 regarding maintainability of suit is also worth consideration. Section 34 of the SRFAESI Act restricts the jurisdiction of the civil court in certain circumstances. Section 34 of the SRFAESI Act reads as under;

[21]. From reading Section 34, it becomes evident that the jurisdiction of civil court to entertain suit is barred only in relation to matters which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the Act to determine. The provisions of Section 34 of SRFAESI Act were under consideration before Apex Court in the case of Central Bank of India vs. Prabha Jain reported in (2025)4 SCC 38. The relevant extract of the judgment is as under:

[22]. In view of the aforesaid pronouncement of law, it is evident that the suit filed by plaintiff is very much maintainable before the learned Trial Court inasmuch as a declaration that the property is coparcenary and the plaintiff has right/interest therein since birth; that the will executed by Chameli Bai in favour of defendant no.1 be declared null & void; that the family settlements be declared null & void; that the interest created in suit property in favour of defendant no.9 to 11, by way of mortgage, is illegal, cannot be adjudicated by DRT and can only be adjudicated by civil court. The learned trial court is justified in holding the suit to be maintainable.

[23]. The issue do not conclude here. Section 34 firstly debars suit before civil court in relation to matters which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the Act, to determine. However, section further debars any other court or other authority from issuing any injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Thus, where the first part of section bars jurisdiction of civil court only, the second part of section is wider enough which debars any court or authority from issuing any injunction.

[24]. If it is held that the suit is not maintainable, the question of issuance of temporary injunction by civil court does arise. Further, if it is held that the suit is maintainable before civil court, there was no occasion for the legislature to have prescribed second part of Section 34, if it intended to enable the civil court to issue injunction. Apparently, the legislature intended that no injunction should be issued by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the SRFAESI Act or under the RDBFI Act, 1993. Therefore, it is to held that, even where the suit is maintainable, the civil court is not competent to issue any injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under SRFAESI Act or under the RDBFI Act, 1993.

[25]. In the case in hand, the temporary injunction being asked for by plaintiff is in relation to the action taken by defendant no.9 to 11 under the provisions of SRFAESI Act only. Therefore, the learned Trial Court could not have issued any injunction in relation to such action of the Bank.

[26]. In view of the aforesaid discussion, this Court is of the considered opinion that the order passed by the learned Trial Court is perfectly justified and does not warrant any interference by this Court. The order is accordingly affirmed. The Misc. Appeal fails and is dismissed.

[27]. The appellant/plaintiff has filed this miscellaneous appeal under Order 43 Rule 1(r) of the CPC, challenging the order dated 04.07.2025 passed by the 8th District Judge, Gwalior in Civil Suit No.996-A of 2021, whereby her application under Order 39 Rules 1 & 2 of the CPC has been rejected by the learned Trial Court.

[28]. The plaintiff had earlier filed an application under Order 39 Rule 1 & 2 of CPC seeking temporary injunction in relation to the action being taken by defendant no.9 to 11 under the SRFAESI Act. The application was rejected by learned Trial Court vide order dated 01.09.2022. This order was challenged by plaintiff in M.A. No.2312/2026 which has been dismissed by this order only.

[29]. The subsequent application under Order 39 Rule 1 & 2 CPC related to further action taken by defendant no.9 to 11 under the SRFAESI Act. In view of the findings given by this Court in relation to M.A. No.2312/2026, the challenge to impugned order in this misc. appeal also fails and the appeal is accordingly dismissed.