Excelsior Correspondent
JAMMU, July 25: The High Court of Jammu & Kashmir and Ladakh has dismissed the appeal against the order passed by 1st Additional District Judge Jammu by holding that the plaintiff has tried to abuse the process of law by filing a suit with a view to restrain the bank to alienate the property which was mortgaged on the grounds which are not sustainable in the eyes of law.
The appeal filed before the court of Justice Wasim Sadiq Nargal was preferred by the appellant Raj Kumar Gupta against order dated May 9, 2023 passed by 1st Additional District Judge Jammu. The appellant had filed a suit for declaration that the deed of further charge of mortgage of land-cum-additional mortgage dated February 17, 2011 and mortgage dated February 6, 2014 respectively executed by the plantiff in favour of the defendant bank as null and void and not operative ineffective and not legally enforceable and cannot be acted upon by the bank for alienate on in any manner being nonest in the eyes of the law.
The specific case of the plaintiff before the court was that in terms of Section 8 of the Agrarian Reforms Act, the plantiff had no right to transfer the land by sale, gift, exchange, will, mortgage or by any other means whatsoever and any transfer of such right made after May 1, 1973 shall be null and void.
The 1St Additional District Judge while order dated May 9, 2023 held that plaintiff has no prima facie case and also the balance of convenience doesn’t lie in his favour nor the plaintiff shall suffer any loss or injury as compare to the dependents in case of vacation of injunction. Accordingly, the court had dismissed the application and interim direction dated February 9, 2023 stood vacated.
After hearing counsels for both the sides, Justice Wasim Sadiq Nargal observed, “I don’t fund any illegality much less perversity in the asme wherein the court below after considering the material facts on the record and three cardinal principles-prima facie case, balance of convenience and comparative loss and injury has vacated the injunction already granted in favour of the plaintiff”.
“It is a classic case where the plaintiff who himself is a party to the execution of the mortgage deeds has subsequently questioned the execution thereof after drawing loan facility and on the basis thereof the plaintiff cannot absolve him of his liability under SARFAESI Act”, the High Court said, adding “the plaintiff after having failed to seek relief against the proceedings initiated under SARFAESI Act before the court of Principal District Judge Samba has very cleverly and mischievously approached the court below with unclean hands by suppressing material facts”.
Stating that it is well settled preposition of law that one who seeks equitable relief must do equity also and demonstrate bonafides, Justice Nargal said, “Section 34 of the SARFAESI Act creates a bar and provides that no injunction shall be granted by any court or other authority 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 the bank and Financial Institution Act, 1993”.
“No fault can be found with the observation of the court below on the cardinal principles of law and facts. The appellant has failed to point out any illegality much less impropriety in the well reasoned order impugned in the present appeal, which is accordingly dismissed and the impugned order is upheld”, High Court said, adding “the court below is at liberty to proceed with the suit and decide the same on its own merits and in accordance with law”.
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