Interim Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 12
Civ Suit
457/23
REEMA ARORA
Vs.
PRADEEP KR ARORA AND ANR.
26.07.2023
Present: Sh. Satish Kumar, Ld. Counsel for plaintiff.
Sh. M.K Madan, Ld. Counsel for defendant no. 1.
Sh. Dev Kant Tripathi, Ld. Counsel for defendant no.2.
Sh. Anuj Kumar Singh, Bank Manager, Bank of India.
WS filed on behalf of defendant no. 1 alongwith reply to
application u/O 39 Rule 1 & 2 CPC and list of documents. Taken on
record. Replication if any be filed within four weeks time.
Ld. Counsel for defendant no. 2 has sough time to file WS.
Let the same be filed within a weeks time with advance copy to Ld.
Counsel for the plaintiff.
Arguments heard on application u/O 39 Rule 1 & 2 CPC.
Put up for order at 4.00 PM.
(Anurag Dass)
SCJ-cum-RC (East)/26.07.2023.
At 4.00 PM.
Present: None.
Application u/O 39 Rule 1 & 2 CPC is taken up for
consideration.
It is argued by Ld. Counsel for plaintiff that the plaintiff has
been made to repay the loan to the bank in an arbitrary manner and illegal
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course of action adopted by the bank/defendant no. 1 Bank of India and
since the defendant no. 2 was the co borrower, he is equally responsible
for repayment of loan, as such defendant no. 1/bank of India be restrained
from deducting EMIs/installments of the loan from the saving account of
the plaintiff.
Per contra, it is argued by Ld. Counsel for defendant no.
1/Bank of India as well as Ld. Counsel for defendant no. 2 that four
applicants namely Harminder Kumar Arora, Pradeep Kumar Arora,
Reema Arora and Kapil Arora had jointly approached for housing loan as
can be seen from the Loan Application Form filed alongwith Written
Statement and at the time of sanction and disbursement of loan a joint
account has been created by all the borrowers exclusively for the purpose
of repayment of the loan where all the borrowers had undertaken to
contribute the EMIs amount to be repaid to the bank in discharge of their
liability. As per terms and conditions of Agreement for Home Loan
available at page no. 4 of the paperbook. Furthermore, the plaintiff has
deliberately has not impleaded the other borrowers namely Kapil Arora
and Harminder Arora. Since the plaintiff is maintaining a separate saving
account with defendant no. 1 deduction for repayment of EMIs is fully
covered under the terms of the agreement.
It seems that the defendant no. 2/Bank of India has adopted a
circumventive route to secure repayment of the loan for which no prior
notice or consent of plaintiff was ever taken as also conceded by Ld.
Counsel for defendant no. 2/Bank of India, however, with the rider that
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there is no such requirement as per the terms of the loan agreement. From
the facts alleged before the court, it seems that four applicants, all family
members, have approached the bank for home loan facility and shared the
burden to repay the same for which separate joint account has also been
created however for the differences being arose subsequently the other
borrowers have refrained from making contribution in the said joint
account. For which, in the humble opinion of this court, the bank cannot
be faulted and estopped from recovery of the loan amount albiet the route
adopted by the bank is found to be arbitrary as no similar action has been
taken against other borrowers. Since the process of recovery of the
housing loan is underway from the separate saving account of the
plaintiff for which the plaintiff has herself consented to the bank for joint
as well as several liability for repayment of the loan, there seems no
plausible reason to give any direction to the bank to stop recovery of the
loan amount. The plaintiff seeks recovery of Rs. 1,88,127/- from the
defendant no. 1 through the present application under consideration,
however the same cannot be granted at the stage without affording
opportunity to contesting sides to lead evidence. The plaintiff also seeks
restraint order against defendant no. 2/Bank of India from debiting her
saving account. However, for the aforesaid reasons no such direction can
be given to the bank.
In order to grant interim injunction, three essential
ingredients have to be satisfied. The plaintiff is required to establish that
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he has a prima facie case in his favour; that he will suffer grave and
irreparable loss and damage would ensue to him in case interim
protection was not granted and that the balance of convenience, interest
of justice and equity are in his favour.
In the case at hand, the plaintiff has failed to show a prima
facie case in her favour. Needless to dwell upon other two conditions for
grant of interim relief.
In view of the above discussion, the application u/O 39 Rule
1 & 2 stands dismissed. Nothing expressed above shall tantamount to an
expression of opinion on merits of the case.
Put up for admission/denial of documents and framing of
issues 20.09.2023.
(Anurag Dass)
SCJ-cum-RC (East)/26.07.2023.
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