MAHESH PROSAD Vs. SUSHILA DEBI AGARWAL

JUDGEMENT

(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.

(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.