Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and directed against the Order No.2 dated September 22, 2010 passed by the learned District Judge, Hooghly in Misc. Appeal No.120 of 2010 thereby rejecting an order of interim injunction.
(2.) THE short fact is that the plaintiff/petitioner herein instituted a suit being Title Suit No.148 of 2010 against the defendants/opposite parties herein for declaration of his tenancy right and restraint order before the learned Civil Judge (Junior Division) at Serampore. In that suit, the plaintiff/petitioner herein prayed for an interim order of injunction. That prayer for, interim order was rejected. Being aggrieved, the plaintiff/petitioner filed a misc. appeal and by the impugned order, the learned District Judge rejected the prayer for interim order but issued a notice of show cause upon the opposite party. Being aggrieved by that order, this application has been filed. Now the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record I find that the plaintiff/petitioner herein has contended that he has been residing in the suit premises for a long time. Previously, he was a tenant under the husband of the opposite party no.1, even as back as in 1994-95. The rent for the premises was enhanced from time to time. Subsequently, the husband of the opposite party no.1 made a gift in favour of his wife, the opposite party herein and since then the petitioner has been paying rent to the opposite party no.1 upon receipt. He has filed rent receipts in support of his claim. Now, the opposite party no.1 along with opposite party no.2 and others are trying to evict them illegally and for that reason, he has filed the suit for declaration of his tenancy right over the premises in suit as described in the schedule of the plaint, permanent injunction and other reliefs as prayed for. An ad interim injunction was refused. The contention of the opposite party no.2 is that the bank took steps have recovery of the secured debts in respect of which the opposite party no.1 is a guarantor of the transaction by mortgaging his property including the premises in suit. The bank is ready to take up the possession of the premises in suit upon taking appropriate steps after issuance notice under Section 13(2) and then 13(4) of the SARFAESI Act.
(3.) MR. Tewari, learned advocate appearing on behalf of the petitioner contends that the petitioner being a tenant is no way to connected with the loan over which the opposite party no.1 stood as guarantor by mortgaging the premises in suit and other properties. The plaintiff is entitled to get the relief. In the instant case, the O.P. No.2 is contesting the suit stating that bank is taking steps for realisation of its dues against the guarantor as per provision of Section 13(4) of the SARFAESI Act and so if any remedy against the action of the bank is available to the petitioner is an action under Section 17 of the said SARFAESI Act. No such step has been taken but the suit has been filed. MR. Tewari has referred to the decision reported in 2008(2) CHN 36 and, thus, submits that the suit by the tenant without notice of the mortgage is quite maintainable. The plaint cannot be rejected. In the instant suit, I find that the petitioner has filed various rent receipts from which it appears that he is a tenant in respect of the premises in suit since 1994 onwards first under the husband of the opposite party no.1 as landlord and secondly under the opposite party no.1. Therefore, I am of the view that both the Courts below are quite justified in issuing the notice of show cause and, thereafter, upon consideration of the show cause filed by the opposite parties, appropriate steps would be taken. The suit was at the preliminary stage. At the stage of question of granting injunction depends on the extreme urgency of the matter but in the instant case, having considered the submission of the learned Advocate of both the sides I am of the view that before disposal of the application, adequate opportunity should be given to the opposite party no.1 to place the defendants stand.;