LALCHAND FULCHAND SHAH & ANOTHER v INVESTMENTS & MORTGAGES BANK LIMITED [2000] KECA 383 (KLR)

The first applicant's affidavit merely stated a verily belief that the appeal would become nugatory if the property was sold, without deponing to any just reasons. Where the respondent is a bank and the dispute is essentially monetary, satisfactory pecuniary compensation can be awarded; land is no longer a 'sacred cow'. The applicants therefore demonstrated no just reason to deny the respondent the fruits of its success in the superior court.

The applicants certified that sections 69(1) and 100A of the Indian Transfer of Property Act 1882 (as amended in 1959) had been explained to them, yet asserted this was never done, although only Harit Sheth, the advocate who drew the charge, could have explained those provisions. The superior court judge correctly applied section 73 of the Evidence Act and the authorities on comparison of signatures to hold the charge properly executed, and this court agreed with that exposition of the law.

The applicants sought an injunction, an equitable remedy, while asserting that statutory provisions they themselves had certified as explained to them had in fact not been explained, contrary to the certification of the advocate who drew the charge. That lack of candour, persisted in before both courts, constituted dirty hands which alone barred the grant of the injunction they sought.

The court invoked the settled position that a dispute over the amount due, the mortgagor's objection to the sale arrangements, or the institution of a redemption action does not justify restraining the mortgagee's power of sale. The applicants had not paid the amount claimed into court, so no basis existed to restrain the respondent bank from exercising its power of sale over the charged property.