Karnataka High Court
V Rajanna vs M/S Computer Indya on 6 October, 2023
-1-
NC: 2023:KHC:36301
WP No. 12899 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 12899 OF 2021 (GM-CPC)
BETWEEN:
V RAJANNA
S/O LATE VENKATARAMANAPPA,
AGED BOUT 71 YEARS,
R/AT JAI SREERAM CONDIMENTS,
ATTIBELE BORDER,
ATTIBELE VILLAGE AND HOBLI,
ANEKAL TALUK,
BANGALORE - 562 107.
Digitally signed ...PETITIONER
by RUPA V (BY SRI. G BALAKRISHNA SHASTRY.,ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. M/S COMPUTER INDYA,
NO.35 S1 AND S2, 3RD FLOOR,
CHURCH GATE BUILDING,
CHURCH STREETS, M. G. ROAD,
BANGALORE - 560 001.
REP BY ITS PROPRIETOR:
SRI T. SRIKUMAR
S/O LATE THYAGARAJ,
AGED ABOUT 41 YEARS.
2. SMT. S. SUBHASHINI
W/O S RAMESH,
AGED ABOUT 41 YEARS,
R/AT NO.855 NEAR PATALAMMA TEMPLE,
ATTIBELE VILLAGE AND HOBLI,
ANEKAL TALUK,
-2-
NC: 2023:KHC:36301
WP No. 12899 of 2021
BANGALORE DISTRICT.
3. SRI S. RAMESH
S/O V. SRINIVSAIAH,
AGED ABOUT 52 YEARS,
4. SRI. SRINIVASAIAH,
S/O L. VENKATARAMANAPPA,
AGED ABOUT 77 YEARS.
ALL ARE RESIDING AT:
R/AT NO.855, NEAR PATALAMMA TEMPLE,
ATTIBELE VILLAGE AND HOBLI,
ANEKAL TALUK,
BANGALORE DISTRICT.
5. CANARA BANK
ARMB II BRANCH,
2ND FLOOR, SPENCER TOWERS,
86, M. G. ROAD,
BANGALORE - 560 001.
REP BY ITS MANAGER.
...RESPONDENTS
(BY SRI.K.N. MAHABALESHWARA RAO.,ADVOCATE FOR R5;
NOTICE TO R1 TO R4 IS DISPENSED WITH)
THIS WP FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TOSET ASIDE THE
ORDERS DATED 20.01.2021, 23.01.2021 AND 04.02.2021 IN
OS NO.387/2020 ON THE FILE OF THE I ADDL.CIVIL JUDGE
AND JMFC, ANEKAL, PRODUCED AT ANNEXURE-A.
RESTRAINING THE R5 FROM DISTURBING THE POSSESSION
OF THE PETITIONER IN RESPECT OF THE SUIT SCHEDULE
PROPERTY MOREFULLY DESCRIBED IN THE SCHEDULE BELOW
BY ALLOWING IA NO.I IN OS NO.387/2020 ON THE FILE OF
THE I ADDL.CIVIL JUDGE AND JMFC, ANEKAL, PRODUCED AT
ANNEXURE-D OR IN THE ALTERNATIVE, DIRECT THE I
ADDL.CIVIL JUDGE AND JMFC, ANEKAL, TO DECIDE IA NO.I
AND III IN O.S.NO.387/2020 ON MERITS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
-3-
NC: 2023:KHC:36301
WP No. 12899 of 2021
ORDER
This writ petition is filed under Article 227 of the Constitution of India seeking to set aside the orders dated 20.01.2021, 23.01.2021 and 04.02.2021 passed in O.S.No.387/2020 on the file of First Additional Civil Judge and JMFC, Anekal (hereinafter referred to as 'the trial Court').
2. The petitioner has filed the suit against the respondents seeking prayer for Judgment and decree against the defendants for permanent injunction restraining defendants from interfering with peaceful possession and enjoyment of the suit schedule property. The said suit is opposed by the defendants by filing the written statement.
3. The Trial Court vide order dated 20.12.2020 has granted an ex-parte injunction against defendant No.5 by directing the defendant No.5 or any person claiming under them were restrained from causing auction of the suit -4- NC: 2023:KHC:36301 WP No. 12899 of 2021 schedule property, displaying it as a sale notice schedule property, without identifying the property till the next date of hearing. The said interim order was not extended on 15.01.2021 and the matter was adjourned to 20.01.2021. On 20.01.2021 when the matter was advanced by the petitioner, the Trial Court has recorded that "As the defendant No.5 has appeared, hence it would be just and proper to extend interim order after hearing the defendant No.5. Hence the present application is rejected" and the matter was called on 23.01.2021. On 23.01.2021 the Trial Court has directed the plaintiff/ petitioner to appear before the defendant No.5 and assist for identification of the property and he shall appear on 02.02.2021 with the appropriate documents and till then the defendant No.5 shall not to proceed with the auctioning of the suit schedule property. It is further made it clear that if plaintiff fails to appear on 02.02.2021 before the defendant No.5 bank then automatically the stay granted gets vacated and the defendant No.5 can proceed as per law.
-5-
NC: 2023:KHC:36301 WP No. 12899 of 2021
4. On perusal of the order dated 04.02.2021 the Trial Court has recorded that "The counsel for defendant No.5 filed a memo, advocate for plaintiff files IA, No settlement, IA for temporary injunction stands vacated." Being aggrieved by the aforesaid interim order of the Trial Court the present petition is filed.
5. Sri. G. Balakrishan Shastry, learned counsel for petitioner submits that, initially the trial Curt has granted an ex-parte injunction against the respondent/defendants, on 20.12.2020 and issued notice on IA.No.5. It is submitted that the petitioner has filed two applications i.e., IA.No.1 and IA.No.5 seeking prayers to grant Temporary injunction restraining defendant No.5 or the bank officials or bank staffs or their agents or GPA holder or subordinates from dispossessing the plaintiff from suit schedule property by way of interference pending disposal of the above suit and IA.No.5 for Temporary injunction restraining the defendant No.5 bank from conducting auction sale on 29.10.2020 at Bangalore till pending -6- NC: 2023:KHC:36301 WP No. 12899 of 2021 disposal of the above suit. However, the Trial Court without considering the pending applications and without hearing the parties has proceeded to pass one line order, that IA for temporary injunction stands vacated. It is submitted that such procedure adopted by the Trial Court is contrary to the settled principle of law and the Trial Court ought to have considered the pending applications filed by the petitioner on its merits and after providing an opportunity to the parties in the suit. It is also submitted that the Trial Court has adopted incorrect procedure in passing order dated 04.02.2021 it has straight way passing an order of vacating temporary injunction without considering the pending applications by providing an opportunity of hearing to the petitioner and without assigning any reasons. Hence, he seeks to set aside the impugned orders with a prayer to direct the Trial Court to consider IA.No.1 and IA.No.5 on its merits in accordance with law.
-7-
NC: 2023:KHC:36301 WP No. 12899 of 2021
6. Per contra, Sri. K. N. Mahabaleshwara Rao for the contesting respondent submits that initially the Trial Court has granted an exparte injunction on 20.12.2020 and the same was extended from time to time. It is submitted that, trial Court in its order dated 23.01.2021 has specifically directed the plaintiff to appear before the defendant No.5 bank with the documents and assist it in identifying the property, it has made clear that if the plaintiff fails to appear, the interim order granted earlier stands vacated. It is submitted that, on 02.02.2021 the plaintiff has not appeared before the defendant No.5 nor was near the suit schedule property to identify the mortgaged property. Hence the Trial Court has justified in vacating the interim order. It is further submitted that, the respondent bank is not claiming any right over the suit schedule property their claim is only restricted to the mortgaged property of the defendant Nos. 3 and 4. Hence, the question of granting any order of injunction restraining the bank to enforce their right in so far as the mortgage property did not arise. It is also submitted that, the bank -8- NC: 2023:KHC:36301 WP No. 12899 of 2021 has already auctioned the mortgaged property which is not the suit schedule property and sale certificate is already issued in favour of the successful bidder. It is also submitted that the petitioner herein and the defendant No.4 have approached the Debts Recovery Tribunal, Bangalore in SA.No.161/2021 and in SA.No.66/2022 both the applications were rejected. Hence he seeks to dismiss the writ petition.
7. Heard the learned counsel for petitioner and the learned counsel for respondent No.5 bank. Perused the material available on record.
8. It is not in dispute that, the petitioners has filed O.S.No.387/2020 against the respondents including respondent No.5 bank seeking prayer for permanent injunction restraining the defendants from interfering with the peaceful possession and in enjoyment of the suit schedule property. In the said suit the petitioner has filed two applications IA.No.1 and IA.No.5, seeking temporary injunction restraining the defendant No.5 bank from -9- NC: 2023:KHC:36301 WP No. 12899 of 2021 interfering with the peaceful enjoyment of the suit schedule property and seeking temporary injunction restraining respondent No.5 bank from conducting the auction.
9. Insofar as IA.No.5 the said application has become infructuous as the defendant No.5 bank has categorically made the statement that the defendant No.5 has conducted the auction of the mortgaged property and sale certificate is issued and the auctioned property is different than the suit schedule property. Hence, this Court is of the view that IA.No.5 filed by the plaintiff has rendered infructuous.
10. Insofar as IA.No.1 is concerned wherein the petitioner is seeking prayer to restrain respondent No.5 bank as anyone claiming under them from interfering with the suit schedule property during the pendency of the suit is concerned, the Trial Court initially has granted ex-parte temporary injunction which was continued and abruptly on 04.02.2021 without assigning any reasons has held that IA
- 10 -
NC: 2023:KHC:36301 WP No. 12899 of 2021 for temporary injunction vacated. This Court is of the considered view that the approach adopted by the Trial Court is erroneous, contrary to the settled principles of law. When the application filed by the petitioner i.e., IA.No.1 is pending for consideration and the defendant has entered appearance, the Trial Court is duty bound to consider the application on its merits after providing an opportunity of hearing to the parties and dispose of the same by assigning proper reasons. This Court is of the view that the Trial Court has proceeded to pass orders on 04.02.2021 stating that IA for temporary injunction is vacated is without any reasons. This Court on close scrutiny of the material available on record, and keeping in mind specific stand of the defendant No.5 bank, that the defendant No.5 is not claiming any right whatsoever over the suit schedule property. It would be appropriate if the direction is issued to the Trial Court to consider IA.No.1 on its merits and in accordance with law after providing an opportunity to the parties to the proceedings. For the reasons stated supra this Court pass the following:
- 11 -
NC: 2023:KHC:36301 WP No. 12899 of 2021 ORDER Order dated 04.02.2021 passed in O.S.No.387/2020 is set aside.
The Trial Court is directed to consider IA.No.1 filed by the petitioner under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in accordance with law and after providing sufficient opportunity to the parties.
With the above direction writ petition is Disposed off.
Sd/-
JUDGE LDC List No.: 38 Sl No.: 7