jangid plaza vs im bank tanzania limited another 2022 tzhclandd 468 29 april 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION N0.48 OF 2022 (Arising from Land Case No. 21 of 2022)

JANGID PLAZA LIMITED APPLICANT

VERSUS I & M BANK(TANZANIA)LIMITED 1®^ RESPONDENT BANK OF INDIA(TANZANIA)LIMITED 2^° RESPONDENT

RULING Date ofLast order: 19/04/2022 Date ofRuling: 29/04/2022 T.N. MWENEGOHA,J. The present application fiied under certificate of urgency under Section 68 (c), (e), Order XXXVII Code Cap.33 R.E 2019 and any other enabiing provision praying for the following Orders:- a. An interim order be issued to restrain the Respondents, its agents and servants or whomsoever acting under their instructions, from interfering with the Applicant peacefui occupation, quite enjoyment, executing or transferring the suit ianded property on Plot No. G6, Kinondoni Area in Dar es Saiaam with CT No. 55792/1 Apartment No.l Mezzanine Floor; CT No. 55792/2 Apartment No.3 Mezzanine Fioor; CT No. 55972/3 Apartment No.2 Mezzanine Floor; CT No.55792/4 CT No.4 Mezzanine Fioor; CT No. 55792/5 Apartment No.2 Ground Floor; CT No. 55972/6 Apartment No.2 Mezzaniene Floor; CT No. 55972/7 Apartment No.3 Ground Floor; CT No. 55972/8 Apartment No.4 Ground Floor; CT No. 55972/39 Apartment No. 01 5*^^ Floor; CT No. 55972/40 Apartment No.2 5^^ Floor; CT No. 55972/41 Apartment No.3 5^^ Floor; CT No. 55972/42 Apartment No.4 5^^ Floor; CT No. 55972/43 Apartment No.l 6^^ Floor; CT No. 55972/44 Apartment No.2 6^^ Floor; CT No. 55972/47 Apartment No.l 7^"^ Floor; CT No. 55972/48 Apartment No. 2 7^^^ Floor; CT No.55972/49 Apartment No.4 7*^^ Floor; CT No. 55972/50 Apartment No.4 7^*^ Floor; CT No. 55972/51 Apartment No.l

8^"^ Floor; CT No. 55972/52 Apartment No.2 8^*^ Floor; CT No. 55972/53 Apartment No.3 8^'' Floor pending the hearing determination of the main suit. b. Status quo be maintained pending the determination of the main suit. c. Cost of this Application. d. And any other reliefs this Honourable Court may deem it fit and just to grant. The application is supported by affidavit of Shafigali Murtaza Khaki one of the applicant director. The affidavit was countered by the Courter affidavit of Rose Mbunda, Principal officer of the Respondent and one of Robert Ajumwise Kibona Principal Officer of the 2"^^ Respondent. Application was conducted by way of written submission whereby the applicant was represented by Rico Adolf Mzeru Advocate while the Respondent was represented by Jovin Kaguwa was represented by Pascal Kihamba. In his submission in support of the application Mr. Mzeru general submitted that the grounds and basis of this application fail under the legal principles for the Court to grant Injunction which are well educated in the famous case of Atilio V. Mbowe (1969) HCD 284. He mentioned the three requirements, (1) being Triable issues (ii) Irreparable loss/Injury (ill) Balance of Convenience. Submission on the first requirement whether there is triable issue his argument countered on premature default notice. It is his submission that the default notice had been issued prematurely contrary to Mortgage agreement, that to him bring triable issue. He pointed that the default notice has been served to different person rathe than mortgagor as required by the law, contrary to Section 127 R. E.

2019. He stated that the default natal does not indicate the principal and the interest separately which makes its defective as observed in the case of First National Bank Tanzania Limited vs. Wasward Wilson Mapande Commercial Case No.75 of 2014 High Court Commercial Division at Par es Salaam. On the second point of irreparable loss/injury it is his submission that the applicant is the legitimate owner of the suit property thus if the suit will be disposed, taking into account the building is for Commercial purpose his business will lapse, the trust to customer in line with their business, thus irreparable loss to the extent of classing down business will occur. On top of that he added that some property is used to service the security agreement then Its disposition will constitute Irreparable loss. On the last requirement, on the balance of convenience, line submitted that the applicant has to show that It is llkeling to suffer more than the respondent In the event the respondent proceed with the disposition of the suit premises since the sale of the suit property Is likely to harm the applicant more as the same cannot be recovered once sold while on the other hand the respondents will not suffer enormous loss ass the applicant for the reason that If the main case decided In their favour the suit property will still be available for realization, or It was held In the case of

Asteria Augustino Mokwe vs. National Microflnance Bank PLC & others Misc. Civil Application No.l48 of 2020 High Court at Mwanza. In reply, the respondent submitted that the application Is not a fit application for the Court to Invoke Its discretional power for granting Temporary Injunction as sought by the applicant. The basis of this submission was that the conditions stated and required for Issuance of temporary Injunction orders sought In the Application, have not been met as required by the law. The respondent submitted that neither the Affidavit In support of the Application nor the main case, disclose triable Issues, and that Is why In his submission, the applicant has tried to "re-engineer" the Application to argue on the contents of Demand Notice Issued by the respondent. He argued that that there Is nowhere the applicant has submitted as to why the Demand Notice Issued Is premature. Furthermore, the defendant argued that the plaintiff has failed to disclosed the irreparable loss he will suffer if the order of injunction sought is withheld. It was his argument that since the applicant seeks the declaratory orders and compensation in terms of general damages, then the applicant is aware and did not indicate in his Affidavit if any such loss cannot be atoned by way of damages and that it is the 1st respondent who stand to suffer should this Application be granted since

the 1st respondent will not be able to recover the money which ultimately belong to the public. In submitting on the condition of balance of convenience, the 1^*^ respondent stated that based on the facts disclosed in the pleadings including applicant's own admissions in the Plaint and Affidavit, the balance of convenience is in favour of the respondent. That the applicant does not dispute taking loan and its acts of default in discharging its obligation of loan repayment and the Applicant does not dispute or explain its failure to remedy the default upon receipt of the 60 day's statutory notice. That, the respondent should not be restrained from recovering the outstanding balance in accordance with the Mortgage Deed, Facility Agreement and the law. It was the respondent's conclusion that the applicant did not satisfy the conditions to be granted temporal injunction. In reply to the applicant, the 2"^ respondent argued that the Applicant is barred to use a defect in notice as an excuse while the Notice was served to their Advocates upon their instruction and that even when it was presented to their Advocate it was received without hesitation. It was the respondent's further submission that they dispute the prayer of Temporary Injunction as prayed by the applicant in that, they do not meet the conditions for granting of Temporary Injunction and they have no genuine claim against

the respondent for this court to grant orders of Temporary Injunction. On the point of irreparable loss, it was the argument of the 2"^ respondent that applicant's claims for loss of business as the property in dispute is leased to the tenant, it was their arguments that these tenants were not anticipated on the loan instruments and that the existence of the tenants on the mortgaged property cannot be used as an excuse in case of default in repayment of the loan. It was the 2"^ respondent's argument that it's rather the respondent who is at greater risk compared to the applicant as the respondent has entrusted her money to the applicant who has failed to repay contrary to their commitment. In rejoinder, the applicant reiterated his prayers. Having considered submissions of all parties, I now have to consider if this application has merit. It is trite that in order for the Injunction to be granted one has to show that there is a triable issue, that one will suffer the irreparable loss if prayers not granted and that the balance of convenience. Both sides in this case have tried to argue to show whether these requirements have been met. The applicant submitted before this Court that the notice was served prematurely contrary to the mortgage agreement and that the default notice was served to a third party instead of the applicant and that the notice does not indicate the

principle and the interest separate which makes the notice default. It is notable that the applicant is alleging a default on the notice issued due to several reasons as mentioned above. However, the defendants are disputing the same claiming that there is nothing wrong with the notice and that it is the applicant who is at fault by not paying the loan as scheduled. In considering this argument, it is evident to me that the two parties are not in agreeable regarding this matter. Hence, I find that there is a triable issue to be determined by the court. The applicant further provided to this court that incase his suit premise is disposed by the defendants, while there is a pending case in court challenging the notice served, then it will preempt his case in court. He also argued that he has commercial activities on the premises and will suffer loss in case the premises are sold. Going through pleadings and submissions for this application before me, I agree with the applicant that selling of the said property in circumstances of this case will cause loss to the applicant. With the circumstances discussed above, I find it fit to grant Temporary Injunction pending determination of the Land Case No. 21 of 2022. Costs to follow event. It is so ordered. T. I^WENEGOHA

JUDGE 29/04/2022 1'^, iXl /X,