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INTRODUCTION: –

 Choosing between a declarative suit and an injunction suit can often be confusing, as these remedies serve distinct purposes and also differ in their scope and impact.

 A declarative suit seeks a formal declaration from the court regarding the legal rights and obligations of the parties involved. It is not intended to grant damages or enforce any particular course of action. Rather, it clarifies the existing legal relationship, bringing certainty and preventing misunderstandings in the near future. This clarity can avoid the need for lengthy and potentially expensive litigation, saving time and money.

In contrast, an injunction suit seeks a court order to direct a party to either perform or refrain from performing a specific act. It is a proactive remedy, temporary or permanent in nature, intended to prevent ongoing or imminent harm. Compared to declaratory judgment, injunction is often seen as more powerful remedy but its success depends on proving the potential for immediate and irreparable harm.

METHOD

The method used in this research paper is by reviewing a case by the Honorable Supreme Court of India, Anathula Sudhakar v P. Buchi Ready (Dead) by Lrs & Ors dated 2005 March, 2008, (2008) 4 SCC 594.

CASE FINDINGS

In Anathula Sudhakar v P. Buchi Ready (Dead) by Lrs & Ors the Honorable Supreme Court observed the following regarding Bare Injunction, Possession and declaratory reliefs.

In the para11 of the above referred judgment the Honorable Supreme Court held as follows

The general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/ or possession, with injunction as a consequential relief, are well settled. We may refer to them briefly:

1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

• Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

• Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

In para17 of the above referred judgment the Honorable Supreme Court summarizes its findings and held that:

1. Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

• As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

• But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

• Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

The court however clarifies that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title by the defendants or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

CONCLUSION

The chosen case review provides us a great example of how the courts have distinguished between these remedies and assessed their suitability in the specific context. Choosing between a declaratory suit and an injunction suit requires careful consideration of the desired outcomes and the available evidence. Declaratory suits offer the clarity of a formal declaration of rights and obligations, removing uncertainty and paving the way for future action. They are particularly effective in a dispute where the legal relationships are unclear or  in the case of contested titles. However, they lack the immediate action or protection of an injunction. Injunction suits, on the other hand, are potent tools for preventing imminent harm or preserving the status quo. They can swiftly halt ongoing interference or potential future disturbances. However, in order for them to be successful they must make a convincing argument for immediate or irreversible injury. Ultimately, the choice rests on understanding the specific legal issue and the desired result.

REFERENCES

• SCC Online

Authored by

THOMAS K JOSEPH

SLCU, CHRIST DEEMED TO BE UNIVERSITY

Intern

MENTO ASSOCIATES

Mortgage is the transfer of an interest in an immovable property. The interest may be transferred for the purpose of:
a.Securing the payment of money advanced.
b.Securing the payment of money to be advanced by way of loan.
c.Securing the payment of an existing or future debt.
d.Securing the performance of an engagement which may give rise to a monetary liability.

The person who transfers the interest in the immovable property is the mortgagor, the person to whom the interest is transferred is the mortgagee .The instrument, if any, by which the transfer is effected is called mortgage deed. There are various types of mortgage like simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, Anomalous mortgage, mortgage by deposit of title deeds etc.

In a simple mortgage, the possession of the mortgaged property is not delivered by the mortgagor. However, in the event of the mortgagor failing to pay the mortgage money, according to the contract, the mortgagee shall have a right to sell the mortgaged property and to realize the mortgage money from the sale proceeds. In a usufructuary mortgage, the mortgagor delivers the possession of the property to the mortgagee. The mortgagee can retain the possession till payment of the mortgage money by the mortgagor. The mortgagee can receive the rents and profits, accruing from the property, and appropriate the same in lieu of interest or in payment of mortgage money.

In a mortgage by deposit of title deeds, a person delivers to a creditor or his agent documents of title to an immovable property with intent to create a security thereon. A mortgage where the principle money secured is more than Rs 100/- can be effected only by a registered instrument. However this is not applicable in the case of mortgage by title deeds.
A mortgagor has a valid right called right to redeem. This means that, at any time principle money has become due, the mortgagor has a right on payment of the mortgage money, to require the mortgagee:

a) to deliver to the mortgagor,  the mortgage deeds and all documents relating to the mortgaged property in his possession.
b) to deliver possession of mortgage property to the mortgagor and to retransfer the  mortgaged property.

A mortgagor who has executed two or mortgages in favour of the same mortgagee, shall be entitled to redeem any one of such mortgage separately, or any two or more of such mortgages together.If any accession or improvement has happened to the mortgaged property during the possession with the mortgagee, then the mortgagor will be entitled to such accession and improvements upon redemption.

With the introduction of SARFAESI Act 2002, it has become easy for banks and other financial institutions to recover loans advanced from defaulting borrowers. If a borrower has taken a loan by giving some collateral security and if he defaults in the repayment of the said loan, then the bank or the financial institution can take the possession of the collateral security, in most cases an immovable property and then manage or even sell the same to recover the debt after issuing a 60 days notice. The borrower is forbidden form approaching the civil court or other authorities against any such actions. However, after the said action by the bank, the aggrieved party can approach the Debt Recovery Tribunal against such an action.
Some of the defenses against the action of banks under the SARFAESI Act include:
a) Non-issuance of 60 days notice
b) Non-classification of the account as Non Performing Asset.
c) If the collateral security is an agricultural land, then   proceedings under SARFAESI Act is not permitted.
d) Action of the bank  barred by Limitation Act, 1963
e) Non delivery of Possession notice to the borrower.
f) Non publication of Possession notice in the news paper.
g) Non service of notice of 30 days, for sale of the secured assets after taking possession of the same.
h) If the amount due is less than 20 percent of the principal amount and interest thereon.