Dismissed

Devesh Sharma v. Smt. Beenu Sharma

Chhattisgarh HC7 Nov 2024MA/35/2024

Case brief

AI extract

What is this about?

This is a miscellaneous appeal challenging the dismissal of an interim injunction application seeking to restrain a bank from alienating mortgaged property. The High Court held the trial court decision justified as the bank had initiated proceedings under the SARFAESI Act.

What did the court decide?

Liberty reserved to the appellant to avail appropriate legal remedy; Trial Court directed to decide main suit expeditiously.

Devesh Sharma Vs Smt. Beenu Sharma — Banking and Recovery | Chhattisgarh HC (2024)

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2024:CGHC:43552

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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MA No. 35 of 2024

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1 - Devesh Sharma S/o Shri Bholanath Sharma, Aged About 45 Years Occupation- Electric Contractor, R/o Lane No. 7, House No. 44 Ramavalley, High Court Road, Bodri, Tahsil And District- Bilaspur (C.G.).

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... Petitioners

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versus

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1 - Smt. Beenu Sharma W/o Devesh Sharma, Aged About 40 Years Occupation- Advocate, R/o Lane No. 7, House No. 44 Ramavalley, High Court Road, Bodri, Tahsil And District- Bilaspur (C.G.).

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2 - Manager, Laxmi Mahila Nagrik Sahkari Bank Maryadit, Branch Bilaspur, Near Renuka Patholab Gourav, Path, Ring Road No. 2, Bilaspur, Tehsil And DistrictBilaspur ( C.G.).

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3 - State Of Chhattisgarh Through- The Collector, District- Bilaspur ( C.G.).

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... Respondents

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For Appellant	: Shri Sourabh Sharma with Shri Sourabh Gupta, Advocates.
For Respondent No.1	: Ms. Deepali Pandey, Advocate.
For Respondent	Shri Raja Sharma, Advocate.
No.2 /Bank
For Respondent	Ms. Prabha Sharma, PL.
No.3/State

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Hon'ble Shri Justice Deepak Kumar Tiwari

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Order On Board

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08/11/2024

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This Miscellaneous appeal has been preferred against the order dated 04.03.24 passed by Third Additional District Judge, Bilaspur C.G. in Civil Suit No.123A/2021 whereby application preferred by appellant/plaintiff under Order 39 Rules 1 & 2 read with Section 151 CPC was dismissed.

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Necessary facts of the case in brief are that plaintiff/appellant had filed suit for declaration and injunction pleading inter alia that marriage between plaintiff and Defendant No.1 was solemnized on 27.06.2007 and the suit property was purchased by the plaintiff in the joint name of plaintiff and Defendant No.1 as the wife has no source of income. Plaintiff obtained a loan from Bank/respondent No.2 and the property was mortgaged but due to family dispute, the loan was not repaid by the plaintiff, therefore the Bank started recovery proceedings. In such backdrop, present suit was filed in which interim application was preferred so as to restrain Respondent No.2/Bank from alienating the suit property and from creating third party interest over the mortgaged property. A relief also was sought against Respondent No.2/Bank that it shall not proceed against plaintiff under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest

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Act, 2002 (henceforth ‘the Act, 2002’). Learned trial court dismissed the application. Hence this appeal.

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Learned counsel for the appellant/plaintiff would submit that for grant of temporary injunction, parameters were satisfied by the plaintiff, however learned trial court has wrongly dismissed the application and he prays that temporary injunction in favour of appellant may be granted and the appeal may be allowed.

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Learned counsel for Respondent Nos.1 & 2 would jointly submit that the suit itself is not maintainable and when a borrower has obtained a loan from the Bank, the Bank has a statutory legal right to proceed under the Act, 2002 and remedy is provided to an aggrieved party in view of the provisions under Section 17 and 18 of the said Act. Therefore, the order passed by learned trial Court is just and proper which does not require any interference.

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I have heard learned counsel for the parties and perused the documents annexed with the appeal carefully.

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When a query was put to learned counsel for the Respondent No.2/Bank as to whether the secured creditor has proceeded with an application under Section 14 of the Act, 2002, he submits that status quo order was passed by the trial Court on 27.04.2022. He would further submit that on 04.03.2024, injunction application has been dismissed, against which, appeal has been preferred. He would further submit that an application under Section 14 of the Act, 2002 has been preferred before concerned D.M..

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A complete mechanism has been provided under the Act, 2002 to take

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possession of securities and sell them. It is not in dispute that the plaintiff/appellant has committed default in repayment of loan amount. Therefore, it is expected from the concerned Bank to avail the said legal remedy. Learned counsel for the Bank informs the Court that the proceedings have already been initiated before competent authority.

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In view of the above, this Court is of the view that the order passed by the learned trial Court is just and proper which does not require any interference and the same is affirmed. However this Court hopes and trusts that the competent authority i.e. concerned District Magistrate before whom application under Section 14 of the Act, 2002 has been preferred shall decide the same in spirit of the said Act within the limitation prescribed under the said Act.

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Accordingly, instant Appeal is dismissed. However, liberty is reserved in favour of appellant/plaintiff to avail appropriate legal remedy available to him under the law, if so advised.

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The concerned trial Court is directed to decide the main suit in an expeditious manner, in accordance with law.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Avinash

Devesh Sharma v. Smt. Beenu Sharma

Case brief

What is this about?

What did the court decide?

Devesh Sharma v. Smt. Beenu Sharma

Case brief

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