DENA BANK Vs. DEVI EXHIBITORS
HIGH COURT OF GUJARAT
M/S Devi Exhibitors And Others
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(1.) This petition is directed against the order passed by the 2nd joint Civil Judge (S. D.) Surat which is confirmed by the Joint Judge Surat in Miscellaneous Civil Appeal No. 89 of 1983. The facts which gave rise to this petition may be stated as under :
Dena Bank filed a Civil Suit being Regular Civil Suit No. 554 of 1983 in the Court of Civil Judge (S. I.) at Surat. It was a suit for injunction. In fact Dena Bank had filed two suits previously being Special Civil Suit Nos. 197 of 1981 and 198 of 1981 to recover certain amounts which according to the Bank were due. The total dues accord- ing to the Bank came to Rs. 21 0 0 Special Civil Suit No. 197 of 1981 was for recovering the amount of Rs. 2 51 882 with interest and Special Civil Suit No. 198 of 1981 was for recovering the amount of Rs. 17 22 998 with interest. The interest was claimed at 17%. Both the suits were pending. During pendency of those two suits Regular Civil Suit No. 554 of 1980 was filed for obtaining permanent injunction and the injunction prayed for was that the defendants may be restrained from constructing Shroff Towers and further injunction asked for was to the effect that no booking for any shop or office may be made in Shroff Towers for the purpose of transferring any part of the building which was to be constructed and to be named as Shroff Towers. For the purpose of obtaining ad-interim injunction in that suit application exh. 5 was given and the prayer was to grant interim injunction during the pendency of the suit. The ground was that for the purpose of advancing the money the properties belonging to defen- dants were mortgaged to the bank and for that purpose the mortgage document was prepared. The mortgaged property was described in the mortgage deed. Full description was given of the property in Schedule `A. The dispute between the parties centred round the fact as to whether Shroff Towers were being constructed in the mortgaged property. The contention of the defendants was that Shroff Towers were being constructed in the property which was open space belonging to the defendants and adjacent to the mortgaged property and situated to the west of it. While the contention of the bank was that the open space was part of the mortgaged property. An effort was made to produce the certified copy of the map prepared by the Survey Department and thereafter an effort was also made to show to the Judge the original of the drawings by issuance of the summons and after showing the original copy was put in. The dispute continued inasmuch as there was some discrepancy in regard to the Nondh number mentioned in the plaint where one of the Nondh numbers differed when read with the Schedule. The argument was that if one looks to the boundaries descri- bed in the Schedule it would clearly show that to the west there were plot Nos. 34 and 41 and therefore the Shroff Towers were included as part of the mortgaged property. The defendants contended that unless Nondh numbers were made clear it could not be suggested from the boundaries as no one clearly could demarcate as to from what exact place plot No. 34 or plot No. 41 would begin. Ultimately Civil Judge (S. D.) came to the conclusion that it is doubtful as to whether the property on which the Shroff Towers were being constructed was part of the mortgaged property or not. The second question which was considered was that there was cinema building known as Kinnari theatre and affidavit was filed before Civil Judge Senior Divisions wherein it was stated that Kinnari theatre or cinema building was of much higher value and even half the amount would be sufficient for paying the debts if any to Dena Bank and therefore it was not necessary to grant any injunction. Now these arguments were accepted by Civil Judge (S. D.) and also by Joint District Judge. The result was that ad interim injunction application was rejected and the appeal was dismissed. Thereafter this Revision Application has been filed in this Court.
(2.) The learned Advocate Shri Vin who appeared on behalf of the Bank showed in the map and strenuously urged that the property on which the Shroff Towers were being constructed was part of the mort- gaged property and that there was a gross error committed by two courts when they came to the conclusion that this position was doubtful. It was thereafter submitted that if Shroff Towers are constructed and the offices and shops are allotted to different persons it would be difficult to sell the mortgaged property for realisation of the dues of the bank and multiplicity of legal proceedings would arise and therefore the defendants must be restrained from transferring any part of the mortgaged property. It was made clear that injunction in regard to construction of Shroff Towers was not pressed. However what was pressed was that Shroff Towers may be constructed but no part of the Shroff Towers as office shop or any in any manner may be booked or transferred in any manner whatsoever to any person. The question which the two courts considered was as to whether such an injunction was necessary and where did balance of convenience lie ? The Civil Judge Senior Division and also the Joint District Judge came to the conclusion that as Kinnari theatre was sufficient for realising the dues of the bank the balance of convenience was in favour of the defend- ants. The reason was that if after spending considerable amounts the Shroff Towers are constructed and they were kept vacant the defendants would be put to a great loss while the Bank was secured because Kinnari theatre was a valuable property which could satisfy the dues of the Bank. The learned Advocate Shri Vin to support his contention that there was jurisdictional error drew my attention to three cases.
(3.) The first case is the case of CHAUBE JAGDISH PRASAD AND ANOTHER V. GANGA PRASAD CHATURVEDI REPORTED IN A.I.R. 1959 SUPREME COURT AT PAGE 492. There it was held that if the court assumes jurisdiction by erroneous decision of jurisdictional fact the High Court is required to interfere under sec. 115 of the Civil Procedure Code. It was held that if an erroneous decision of a subordinate court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exorcise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. It was a case under Houses and Rents- U.P. (Temporary) Control of Rent and Eviction Act. It was observed as under Under sec. 5(4) of the U.P. (Temporary) Control of Rent and Eviction Act the landlords right of suit was restricted to challenging the inadequacy of the reason- able annual rent but he could not sue for varying the agreed rent. Where the landlord brought his suit on the ground of inadequacy of the reasonable rent as determined under sec. 3A its maintainability depended on the determination of the jurisdictional fact i.e. date of its construction whether it was before or after 30/06/1946 on the decision of which would depend his right to bring the suit because if there was no new construction the agreed rent would be operative and the landlord would have no right of suit under sec. 5(4) of the Act. Consequently by wrongly deciding this question the trial Court would be entertaining a suit by the landlord for enhancement of the agreed rent and thereby assuming jurisdiction it did not possess. In such a case the High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided.;
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