# Smt. Omika Devi v. Indian Bank (Allahabad Bank) Branch & Ors

- **Citation:** (2024) 11 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-14
- **Case number:** First Appeal From Order No. 1903 of 2023
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-omika-devi-v-indian-bank-allahabad-bank-branch-ors-50991
- **Pages:** 4

## Headnote

(A) Civil Law - Partition and Injunction -
Civil Procedure Code, 1908 - Order XLIII
Rule 1(r) - Specific Relief Act, 1963 -
Section
41(h);
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 - Sections 13(2), 13(4) & 17 -
Alternative
remedies
under
specific
statutes - Civil suits are barred when
alternative
efficacious
remedies
are
available under the SARFAESI Act
-
Partition suit - Secured assets - Security
interest - Injunction under U.P. CPC
Amendment, SARFAESI Act - Grant of
injunction is not, otherwise, permissible in
view of U.P. amendment made under
Order XXXIX Rule 2 C.P.C. as per which an
injunction which cannot be granted under
the Specific Relief Act, 1963, the same
cannot be granted under C.P.C. - An
injunction cannot be granted if an equally
efficacious legal remedy is available, as
per Section 41(h) of the Specific Relief
Act, 1963 - Any order for injunction
granted
in
contravention
of
these
provisions shall be void. (Paras 3 -12)

Appellant, claiming a 1/3rd share in immovable
property
-
mortgaged
by
co-sharers
(respondents) - sought an injunction against the
bank - from auctioning the property without
partition - civil court rejected application. (Paras
3-5)

HELD: - Appeal lacks merit as statutory
remedies are available under the SARFAESI Act.
Application for injunction was correctly rejected.
Dismissal does not affect the appellant's right to
pursue other legal remedies. Appellant has a
remedy of approaching the Debts Recovery
Tribunal independently or by seeking her
implement
in
the
pending
Securitisation
Application. (Paras 9 - 12)

Appeal dismissed. (E-7)
List of Cases cited:

## Text

160 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 11 ILRA 160
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal From Order No. 1903 of 2023

Smt. Omika Devi ...Appellant
Versus
Indian Bank (Allahabad Bank) Branch &
Ors. ...Respondents

Counsel for the Appellant:
Sri H.K. Asthana, Sri Harish Kumar Tripathi

Counsel for the Respondents:
Sri Habib Ahmad

(A) Civil Law - Partition and Injunction -
Civil Procedure Code, 1908 - Order XLIII
Rule 1(r) - Specific Relief Act, 1963 -
Section
41(h);
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 - Sections 13(2), 13(4) & 17 -
Alternative
remedies
under
specific
statutes - Civil suits are barred when
alternative
efficacious
remedies
are
available under the SARFAESI Act
-
Partition suit - Secured assets - Security
interest - Injunction under U.P. CPC
Amendment, SARFAESI Act - Grant of
injunction is not, otherwise, permissible in
view of U.P. amendment made under
Order XXXIX Rule 2 C.P.C. as per which an
injunction which cannot be granted under
the Specific Relief Act, 1963, the same
cannot be granted under C.P.C. - An
injunction cannot be granted if an equally
efficacious legal remedy is available, as
per Section 41(h) of the Specific Relief
Act, 1963 - Any order for injunction
granted
in
contravention
of
these
provisions shall be void. (Paras 3 -12)

Appellant, claiming a 1/3rd share in immovable
property
-
mortgaged
by
co-sharers
(respondents) - sought an injunction against the
bank - from auctioning the property without
partition - civil court rejected application. (Paras
3-5)

HELD: - Appeal lacks merit as statutory
remedies are available under the SARFAESI Act.
Application for injunction was correctly rejected.
Dismissal does not affect the appellant's right to
pursue other legal remedies. Appellant has a
remedy of approaching the Debts Recovery
Tribunal independently or by seeking her
implement
in
the
pending
Securitisation
Application. (Paras 9 - 12)

Appeal dismissed. (E-7)
List of Cases cited:
1. Jagdish Singh Vs Heeralal & ors., (2014) 1
SCC 479
2. U.B.O.I. Vs Satyavati Tondon & ors., (2010) 8
SCC 110
3. Sree Anandhakumar Mills Ltd. Vs I.O.B.& ors.,
2019 (1) Supreme 514

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri H.K. Asthana, learned
counsel for the plaintiff-appellant and Shri
Habib Ahmad, learned counsel for the
respondent No.1-Bank.

2. Counter and rejoinder affidavits in
between the appellant and respondent No.1
have been exchanged. In view of the order
proposed to be passed, it is not necessary to
issue notice to the remaining respondents,
particularly when the matter is running in
the list of fresh cases for the last one year.

3. The instant appeal under Order
XLIII Rule 1(r) of Civil Procedure Code,
1908 assails the validity of order dated
19.10.2023 whereby the learned Civil
Judge, (Senior Division), Gorakhpur has
11 All. Smt. Omika Devi Vs. Indian Bank (Allahabad Bank) Branch & Ors.
161
rejected
the
plaintiff's
injunction
application in Original Suit No.186 of 2022
(Smt.
Omika
Devi
v.
Indian
Bank
(Allahabad Bank) and others).

4. Assailing the order impugned,
learned counsel for the appellant submits
that though the appellant is having 1/3rd
share in an immovable property, the
respondent Nos. 2 and 3 i.e. real brother
and mother of the appellant have created
mortgage in favour of respondent No.1Bank and availed financial facility.

5. The contention is that seeking partition
of the property, Original Suit No.2175 of 2023
(Smt. Omika Devi v. Om Kailash Pati and
another) was filed by the appellant which is
pending before the civil court. It is contended
that when the Bank proceeded to auction the
mortgaged
property,
plaintiff
instituted
Original Suit No.186 of 2022 claiming a
decree for injunction only to the extent that
without effecting partition between the cosharers of the property, the Bank be restrained
from taking possession over the property, from
auctioning the same and from causing any
interference in possession and user of the
property. By referring to the definitions of
"secured assets" and "security interest",
respectively contained in Section 2(zc) and
(zf) read with Section 13 of the Securitisation
and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(hereinafter referred to as 'the Act of 2002'),
learned counsel for the appellant vehemently
argued that, in the instant case, the appellant
cannot be relegated to avail remedy under the
Act of 2002 and, inasmuch as, the Debts
Recovery Tribunal is not competent to
determine the respective shares of co-sharers
of immovable property. He, therefore, submits
that until and unless a decree of partition is
drawn in Original Suit No.2175 of 2023, the
appellant is entitled for injunction.

6. Per contra, Shri Habib Ahmad,
learned counsel for the respondent-Bank
submits that Bank has already proceeded with
auction proceedings pursuant to notices issued
under Section 13(2) and 13(4) of the Act and
in view of Section 17 of the Act of 2002, any
person (including borrower), aggrieved by any
of the measures referred to in Section 13(4),
may make an application before Debts
Recovery Tribunal agitating his grievance. He
places reliance upon judgment of the Hon'ble
Supreme Court in Jagdish Singh v. Heeralal
and others, (2014) 1 SCC 479. The relevant
'paragraphs 17 and 18' of the same are
reproduced as under :-

"17. The expression 'any person'
used in Section 17 is of wide import and
takes within its fold not only the borrower
but also the guarantor or any other person
who may be affected by action taken
under Section 13(4) of the Securitisation
Act. Reference may be made to the
Judgment of this Court in Union Bank of
India v. Satyavati Tondon and others,
(2010) 8 SCC 110.

18. Therefore, the expression
'any person' referred to in Section 17
would take in the plaintiffs in the suit as
well. Therefore, irrespective of the question
whether the civil suit is maintainable or
not, under the Securitisation Act itself, a
remedy is provided to such persons so that
they can invoke the provisions of Section
17 of the Securitisation Act, in case the
bank (secured creditor) adopt any measure
including the sale of the secured assets, on
which the plaintiffs claim interest. "

7. He further submits that borrowers
have
already
preferred
Securitisation
Application No.838 of 2023 which is
pending
before
the
Debts
Recovery
Tribunal. In rejoinder, learned counsel for
appellant submits that property has not yet
162 INDIAN LAW REPORTS ALLAHABAD SERIES
been sold and present appellant has not
been impleaded as a party before D.R.T.

8. Having heard learned counsel for
the parties, this Court is of the considered
view that scope of proceedings under
Section 17 of the Act of 2002 is quite large
and applicant of such proceedings can be
any person including borrower, gaurantor
or any person who may be affected by
action taken under Section 13(4) of the Act.
The Apex Court in Jagdish Singh (supra)
has
elaborately
dealt
with
the
said
provision. The judgment of Jagdish Singh
(supra)
has
been
followed
in
Sree
Anandhakumar Mills Ltd. v. Indian
Overseas Bank & others, 2019 (1)
Supreme 514.

9. Apart from this, I find that by the
time the Original Suit No.186 of 2022
giving rise to the instant appeal was filed
by the appellant, the suit for partition had
not been filed by any of the alleged cosharers and, it is only after one year, the
partition suit being Original Suit No.2175
of 2023 was filed. This Court is not
inclined to make any observation regarding
subsequent institution of suit as an attempt
to shield the action taken in pursuance of
the Act of 2002, and without expressing
any opinion on the maintainability of any
suit at this stage when the said question has
not yet arisen before the civil court, this
Court is of the view that appellant has a
remedy of approaching the Debts Recovery
Tribunal independently or by seeking her
impleadment in the pending Securitisation
Application No.838 of 2023.

10. Here I may emphasise that grant of
injunction is not, otherwise, permissible in
view of U.P. amendment made under Order
XXXIX Rule 2 C.P.C. as per which an
injunction which cannot be granted under
the Specific Relief Act, 1963 (hereinafter
referred to as 'the Act of 1963'), the same
cannot be granted under C.P.C. The Court
may refer to Section 41(h) of the Act, 1963
according to which availability of equally
efficacious relief would result in refusal to
grant injunction. For a ready reference,
relevant U.P. amendment in Order XXXIX
Rule 2 CPC and Section 41(h) of the Act of
1963 are reproduced as under:-

Code of Civil Procedure, 1908
Order XXXIX Rule 2 (U.P. Amendment)

"Uttar Pradesh.-In its application
to the State of Uttar Pradesh, in Rule 2, in
sub-rule (2), the following proviso shall be
inserted, namely:-

"Provided that no such injunction
shall be granted-

(a) where no perpetual injunction
could be granted in view of the provisions
of Section 38 and Section 41 of the
Specific Relief Act, 1963 (Act 47 of 1963),
or

..........................."

and any order for injunction
granted in contravention of these provisions
shall be void".

The Specific Relief Act, 1963
"Section 41(h)-Injunction when refused

When equally efficacious relief
can certainly be obtained by any other
usual mode of proceeding except in case of
breach of trust;"

11. For all the aforesaid reasons, I do
not find any error in the order rejecting
injunction application.

12. The appeal has no merit and is,
accordingly, dismissed, however, without
affecting the appellant's right to avail other
remedies available under the law.
----------
11 All. Smt. Shivika Upadhayay Vs. Pushpendra Trivedi
163
(2024) 11 ILRA 163
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Civil Misc. Transfer Application (U/s 24 C.P.C.)
No. 674 of 2024

Smt. Shivika Upadhayay ...Applicant
Versus
Pushpendra Trivedi ...Opposite Party

Counsel for the Applicant:
Sri Sandeep Kumar

Counsel for the Opposite Party:

A. Civil Law - Civil Procedure Code,1908Section
24-Hindu
Marriage
Act,1955Section 13(1)(a)-The Allahabad high court
addressed
the
issue
of
territorial
jurisdiction between its Principal Seat and
the
Lucknow
Bench
concerning
matrimonial cases transfers under section
13(1)(a) of the Hindu Marriage Act,1955-
the
applicant
sought
to
transfer
a
matrimonial case from Family Court in
Lucknow to the District Court in BareillyThe court reviewed sections 22,23 and 24
of CPC, which address the power to
transfer civil cases -It also analyzed the
Family
Courts
Act,1984,
and
its
implications for territorial jurisdictionHeld,
transfer
applications
for
cases
pending within the territorial jurisdiction
of the Lucknow Bench must be filed before
the Lucknow Bench, as it is the appellate
forum for such cases under sections 22-24
of Civil Procedure Code, and the Family
Court s Act 1984.(Para 1 to 16)

Every court has its own local or territorial
limits beyond which it cannot exercise the
jurisdiction. So far as this court is
concerned,
its
jurisdiction
is
not
circumscribed by any territorial limitation
and it extends over any person or
authority within the territory of India. But
it has no jurisdiction outside the country.
So far as a High Court is concerned its
jurisdiction is limited to territory within
which it exercises jurisdiction and not
beyond it. On that analogy also, a High
court cannot pass an order transferring a
case pending in a court subordinate to it
to a court subordinate to another High
Court. It would be inconsistent with the
limitation as to territorial jurisdiction of
the Court.(Para 14) (E-6)

List of Cases cited:

1. Nasiruddin Vs S.T.A.T. (1975) 2 SCC 671

2. Rajendra Kr. Mishra Vs U.O.I. & ors. (2005) 1
UPLBEC 108

3. St. of Raj. Vs M/s Swaika Properties (1985) 3
SCC 217

4. U.P. Rashtriya Chini Mill Adhikari Parishad Vs
St. of U.P. (1995) 4 SCC 738

5.
Navinchandra
N.
Majithia
Vs
St.
of
Mah.(2000) 7 SCC 640

6. Ambica Industries. Vs Commr. Of Central
Excise (2007) 6 SCC 769

7. Alchemist Ltd. Vs St. Bank of Sikkim(2007) 11
SCC 335

8. Rajendra Chingravelu Vs R.K. Mishra (2010) 1
SCC 457

9. Naval Kishore Sharma Vs U.O.I. (2014) 9 SCC
329

10. Kusum Ingots & Alloys Ltd. Vs U.O.I. (2004)
6 SCC 254

11. Dr. Manju Varma Vs St. of U.P. & ors., SC in
Civil Appeal No. 8290 of 2002

12. Shah Newaz Khan & ors. Vs St. of Nagaland
& ors. (2023) 11 SCC 376

13. Durgesh Sharma Vs Jayshree (2008) 9 SCC 648