Civil Revision No.1782 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1782 of 2010(O & M) Date of Decision:17.03.2010 Jugal Kishore .... petitioner Versus LIC Housing Finance Ltd. .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Vaibhav Narang,Advocate for the petitioner **** RAKESH KUMAR GARG J.(ORAL): CM No.6850-CII of 2010 CM is allowed subject to all just exceptions. CM disposed of. Civil Revision No.1782 of 2010 This is plaintiff's revision petition challenging the impugned orders whereby his application for grant of interim injunction restraining the respondent from dispossessing him from the suit property has been rejected. As per the averments made in this petition, the petitioner mortgaged the property in dispute with the respondent on account of housing loan availed by him. According to the petitioner, he is lawful owner in possession of the property in dispute which is being used by him as dwelling house. It is further averred that he was making payment of monthly instalments regularly, yet the defendant started harassing him and claimed exaggerated and excessive amount from the plaintiff without Civil Revision No.1782 of 2010(O & M) 2 assigning any reason to do so. It was further stated that defendant adopted wrongful method and was sending anti-social and gunda elements to his house who were threatening to dispossess him forcibly and illegally. Hence, the necessity arose to file the present suit for rendition of accounts and permanent injunction. On the other hand, the defence set up by the respondent is that the corporation had a lien over the suit property and was entitled to recover the loan amount from the plaintiff who had defaulted out of sale proceeds of the said property. According to the respondent a sum of Rs.2,78,279.31 paise was payable by the petitioner up to 30.09.2008 with further interest thereon till the amount was paid. Other averments were denied and it was submitted that complaint under Section 138 of the Negotiable Instruments Act was rightly filed against the petitioner who was a defaulter and several cheques issued by him for payment of monthly instalments had been dishonored by him. It was denied that defendant made any request for rendering the correct statement of accounts. It was further submitted that the defendant was maintaining true and correct accounts which were handed over to the plaintiff when he approached the defendant for this purpose and he had raised no objection with regard to the correctness of the same. Other averments were denied and dismissal of the suit was prayed for. Along with this suit, petitioner had filed an application for ad interim injunction restraining the respondent from dispossessing him during the pendency of the suit. The Courts below on consideration of the matter rejected the aforesaid application. It is relevant to refer to the observations of the Lower Appellate Court which read as follows: “ Admittedly, housing loan has been availed by the plaintiff against the mortgage of the property in dispute and a sum Civil Revision No.1782 of 2010(O & M) 3 of Rs.2,78,279.31 paise was outstanding against the plaintiff as on 30.09.2008. So far as the question of rendering the account is concerned, the plaintiff must be fully aware as to how much loan was taken by him and how much amount he has already paid and what is the rate of interest applicable as per the terms and conditions of the loan agreement. In such circumstances, the plea taken by the plaintiff that the defendant is not rendering the accounts does not appear to be tenable. Rather the same appears to be misconceived and it appears that the plaintiff is taking this plea just to thwart any attempt on the part of the defendant to take measures under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act which as per the settled law laid down in Mardia Chemicals Ltd.vs.Union of India and others etc.AIR 2004 SC 2371 can be resorted to by the defendant to recover the outstanding loan amount from the plaintiff. It is also worthwhile to mention that the plaintiff is a defaulter and several cheques issued by him qua the instalment of the loan have been dishonored and complaint under Section 138 of the Negotiable Instruments Act has also been filed by the defendant. Even otherwise, it is settled proposition of law that a person must do equity to seek equity. Since the plaintiff himself is a defaulter, the equity is definitely not in his favour of claim the discretionary relief of injunction. Moreover, Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act clearly excludes the jurisdiction of the Civil Revision No.1782 of 2010(O & M) 4 civil court in such matters.” From the aforesaid, it is crystal clear that the respondent- corporation has advanced a loan to the petitioner and the property in dispute has been mortgaged as security for the aforesaid loan. Thus, admittedly there is a charge upon the aforesaid property and under the provisions of SARFAESI Act by selling the aforesaid property. The argument of the learned counsel for the petitioner is that the courts below have wrongly applied the law laid down by the Hon'ble Mardia Chemicals Ltd.vs.Union of India and others etc.AIR 2004 SC 2371 wherein it is held that jurisdiction of the Civil Court is barred to deny the ad interim injunction to the petitioner. The argument is without any merit. Even if it is assumed that civil Court has the jurisdiction the plaintiff-petitioner has no prima facie case in his favour as he is admittedly a defaulter. The respondents are recovering the amount of loan from the petitioner in a lawful manner. I do not find any error of jurisdictiion in the denial of discretionary relief of ad interim injunction to the petitioner. Thus the Courts below have rightly dismissed the application for ad interim injunction while using its discretion in a judicious manner and no interference is called by this Court. Dismissed. (RAKESH KUMAR GARG) JUDGE 17.03.2010 neenu