AO/354/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 354 of 2007 With CIVIL APPLICATION No. 12427 of 2007 In APPEAL FROM ORDER No. 354 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= GUJARAT STATE FINANCIAL CORP. & 1 - Appellant(s) Versus FAKIR MOHMED PIRBHAI GANCHI & 2 - Respondent(s) ========================================================= Appearance : MR RD DAVE for Appellant(s) : 1 - 2. MR PANKAJ K SONI for Respondent(s) : 1 - 3. MR DIPESH K SONI for Respondent(s) : 1, MS RAKSHA S DIKSHIT for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/08/2008 ORAL JUDGMENT 1. Admit. Shri Pankaj K.Soni, learned advocate AO/354/2007 2/7 JUDGMENT waives service of notice of admission on behalf of respondents. With the consent of learned advocates appearing for the respective parties, the appeal from order is taken up for final hearing today. 2. Present appeal from order is preferred by the appellants-original defendants No.1 and 2 to quash and set aside the impugned order dated 24.10.2005 passed by the learned Principal Senior Civil Judge, Gandhinagar passed below Exh.5 in Special Civil Suit No.120 of 2004 by which the learned trial court has restrained the appellants from selling the property in question in exercise of powers under Section 29 of the State Financial Corporations Act, 1951 (hereinafter referred to as “the Act”). 3. As per the appellants, the property in question was given as a collateral security by the original defendant No.3 as a guarantor and thereafter to recover the amount of loan. The appellants initiated proceedings to attach the disputed property in question at that stage, respondents No.1 and 2 herein – original plaintiffs instituted AO/354/2007 3/7 JUDGMENT Special Civil Suit No.120 of 2004 in the Court of the learned Principal Senior Civil Judge, Gandhinagar for a declaration and injunction claiming that they are the tenants in the suit property and therefore the Corporation has no authority and/or jurisdiction to take away their tenancy right and to sell the property in question and/or to attach the property in question. In the said suit, the original plaintiffs submitted the application Exh.5 for interim injunction restraining the appellants from disturbing their possession and/or attaching the property in question which is occupied by them as tenants. The learned appellate court by the impugned order has applied the application Exh.5 and granted the injunction as prayed for in terms of paragraph 8 of the application till the final disposal of the suit. 3.1 Being aggrieved and dissatisfied with the order passed below Exh.5, the appellants-original defendants No.1 and 2 have preferred the present appeal from order. AO/354/2007 4/7 JUDGMENT 4. Shri R.D.Dave, learned advocate appearing on behalf of the appellants has vehemently submitted that approximately amount of more than Rs.54.70 lacs is due and payable and the property in question has been put as a collateral security by the guarantor respondent No.3 herein and the suit property in question was submitted as an equitable mortgage on 30.9.1993. It is submitted that so far as original plaintiff No.1 is concerned, is on the ground floor and the original plaintiff No.2 is concerned, is on the first floor. At the most it can be said that so far as plaintiff No.1 is concerned, he was there as a tenant even prior to mortgage of the property in question. So far as plaintiff No.2 is concerned, as he was never the tenant prior to the mortgage of the property, his tenancy right cannot be protected. It is submitted that even the appellants may be permitted to sell the entire property with the tenancy right of the plaintiff No.1. However, so far as plaintiff No.2 is concerned, his tenancy right which were after the mortgage property cannot be protected and therefore it is requested to allow the present appeal from order. AO/354/2007 5/7 JUDGMENT 5. Shri Pankaj K.Soni, learned advocate appearing on behalf of the respondents No.1 and 3 – original plaintiffs while opposing the present appeal from order has submitted that as the original plaintiffs are the tenants in the property in question, the appellant Corporation has no authority to attach the property in question which is occupied by the plaintiffs as the tenants and therefore the learned trial court has rightly allowed the application Exh.5 which is not required to be interfered with by this Court. Therefore, it is requested to dismiss the present appeal from order. 6. Having heard the learned advocates appearing for the respective parties, it appears that so far as respondent No.1 herein – original plaintiff No.1 is concerned, he seems to be the tenant in one shop on the ground floor much prior to the property came to be mortgaged. However, so far as plaintiff No.2 is concerned, who is occupying the shop on the first floor is claiming tenancy after 1996 i.e. after the property came to be mortgaged. Under the AO/354/2007 6/7 JUDGMENT circumstances with respect to the tenants after the property came to be mortgaged, their rights cannot be protected at the time when the Corporation exercise the powers under Section 29 of the Act. So far as the original plaintiff No.1 is concerned, as he is the tenant much prior to the property came to be mortgaged with the Corporation, there is a prima facie case in his favour, the appellants cannot disturb his tenancy right. However, the Corporation can sell the property with tenancy rights of the plaintiff No.1. Under the circumstances, the learned trial court has committed an error in granting the injunction restraining the appellants from attaching the property even occupied by the respondents No.2 herein-original plaintiff No.2 who is the tenant after the property came to be mortgaged, and to that extent, present appeal from order deserves to be allowed and the impugned order passed by the learned trial court deserves to be modified. 7. Under the circumstances and for the reasons stated above, appeal from order succeeds in part. The impugned order dated 24.10.2005 passed by the AO/354/2007 7/7 JUDGMENT learned Principal Senior Civil Judge, Gandhinagar passed below Exh.5 in Special Civil Suit No.120 of 2004 is hereby quashed and set aside so far as granting injunction against the appellants with respect to the property occupied by the original plaintiff No.2. Accordingly, the injunction in favour of the original plaintiff No.2 is hereby vacated, and so far as injunction in favour of the original plaintiff No.1 is confirmed. However, it is observed that it will be open for the appellants to exercise the powers under Section 29 of the Act by attaching/selling the property in question along with the tenancy right of the plaintiff No.1. 8. Appeal from order is accordingly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. 9. In view of the disposal of main appeal, no order in civil application. ( M.R. SHAH, J. ) syed/