Bombay High Court
Bank Of Baroda Through Its Authorised ... vs Pravin Gunvantrao Zoting And Others on 8 May, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:5677
1 cra-134-22j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO. 134 OF 2022
BANK OF BARODA
through its Authorized Officer/Chief
Manager Anilkumar Jha, Kalamb
Taluka Kalamb, District Yavatmal.
. . . APPLICANT
// V E R S U S //
1. Pravin Gunvantrao Zoting,
Aged about 36 years, Occ. Agriculturist,
R/o. Sarapdhari, Tahsil Kalamab,
District Yavatmal.
2. Smt. Sharda Ganesh Thote,
Aged about 56 years, Occ. Agriculture,
3. Chandrashekhar Ganesh Thote,
Aged about 39 years, Occ. Agriculture
4. Sachin Ganesh Thote,
Aged about 37 years, Occ. Agriculture
5. Nitin Ganesh Thote,
Aged about 35 years, Occ. Agriculture
All R/o. In front of Tahsil Office Kalamb
Tahsil Kalamb, District Yavatmal . . . NON-APPLICANTS
------------------------------------------------------------------------------------------------
Shri S. N. Fauladi a/w. Shri S. D. Khati, Advocate for applicant.
Shri Rohit Joshi, Advocate for non-applicant no. 1.
Shri T. J. Patil, Advocate for non-applicant nos. 2 to 5.
-----------------------------------------------------------------------------------------------
CORAM :- M. W. CHANDWANI, J.
RESERVED ON :- 01.03.2024
PRONOUNCED ON :- 08.05.2024
2 cra-134-22j.odt
JUDGMENT :
-
Heard.
2. Admit. Heard finally by consent of the learned counsel for
the parties.
3. This civil revision application challenges the order dated
18.10.2022, passed below Exh. 39, in Special Civil Suit (SCS) no.
66/2020, thereby rejecting the application of the applicant-Bank for
rejection of the the plaint under Order 7, Rule 11 of the Code of Civil
Procedure (for short, "CPC").
4. The bare facts, which are necessary to dispose of the
present application, can be summarized as under:-
The non-applicant no. 1 instituted a SCS No. 66/2020
against the non-applicant nos. 2 to 5 for specific performance of
contract, possession and in the alternative refund of earnest amount
and damages. The said suit is filed by the non-applicant no.1 on the
premise that on 16.06.2010, the deceased husband of the non-applicant
no. 2 i.e. father of the non-applicant nos. 3 to 5 had executed an
agreement to sale of the suit property to the non-applicant no. 1. After
his death, the non-applicant nos. 2 to 5 are the successors. Despite the
3 cra-134-22j.odt
request of the non-applicant no. 1, the non-applicant nos. 2 to 5 failed
to execute the sale deed, as per the agreement referred above. Pending
the suit, on application of the non-applicant no. 1, the present
applicant-Bank came to be added as a party (defendant no. 5) in the
said suit along with added prayer Clause no. (BB) for injunction
restraining the applicant or his agents from seizing the suit property or
disposing of the same.
5. The applicant-Bank appeared in the said suit and filed an
application under Order 7, Rule 11 of the CPC for rejection of the plaint
on the premise that the suit property was owned by the non-applicant
no. 2, a partner of Jai Gurudev Ginning and Pressing Industries, a
secured borrower. The non-applicant no. 2 created an equitable
mortgage over the said property in favour of the Bank by depositing
original title deed with the applicant-Bank against which the loan was
granted to the non-applicant no. 2, a secured borrower. Since, the
secured borrower could not pay the amount, a notice under Section
13(2) of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short, "the SARFAESI
Act") came to be issued to the borrower. She failed to clear the dues of
the applicant-Bank therefore, an application under Section 14 of the
SARFAESI Act came to be filed before the learned District Magistrate,
Yavatmal. Vide order dated 27.01.2020, the applicant-Bank proceeded
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further as per the provisions of the SARFAESI Act. Suit is barred under
Section 34 of the SARFAESI Act as the Civil Court has no jurisdiction to
entertain any suit filed by the non-applicant no. 1. The Trial Court
rejected the application of the applicant-Bank for rejection of the plaint.
Feeling aggrieved, the present revision application came to be filed.
6. Mr. Khati, the learned counsel for the applicant-Bank would
submit that the applicant-Bank has already taken action under Section
13 of the SARFAESI Act for enforcement of security interest. Therefore,
suit in respect of security interest is barred under Section 34 of the
SARFAESI Act. He submitted that the prayer of injunction against the
Bank, not to seize the suit property and not to dispose of the same, is
unwarranted and expressly barred under Section 34 of the SARFAESI
Act. The only remedy available to the non-applicants for seeking relief
against the Bank is under Section 17 of the SARFAESI Act therefore, the
plaint is liable to be rejected against the applicant-Bank under Order 7,
Rule 11 of the CPC. However, the learned Lower Court rejected the
application of the applicant-Bank for rejection of the plaint against the
Bank in gross violation of Section 34 of the SARFAESI Act. Thus, he
seeks quashing of the impugned order and prayed for rejection of the
plaint against the applicant-Bank.
5 cra-134-22j.odt
7. Next, Mr. Khati, learned counsel appearing on behalf of the
applicant-Bank submitted that the suit is based on a contract between
independent persons. The applicant-Bank has no role to play in the said
contract and there is no cause of action against the applicant-Bank.
None of the averments therein constitute any cause of action against the
applicant-Bank. The non-applicant no. 1 has no grievance against the
Bank therefore, right to sue the applicant-Bank did not accrue in favour
of the non-applicant no. 1. The plaint does not disclose cause of action
against the applicant-Bank and therefore, on this ground the plaint is
liable to be rejected under Order 7, Rule 11 of the CPC.
8. Conversely, Mr. Rohit Joshi, learned counsel appearing on
behalf of the non-applicant no. 1 vehemently submitted that as per
Section 9 of the CPC, a Civil Court has jurisdiction to adjudicate every
civil dispute, unless the jurisdiction is expressly or impliedly barred. The
DRT is a judicial forum having limited jurisdiction and it has only
jurisdiction to decide such matters which are specifically provided
under Section 17 of the SARFAESI Act. A suit for specific performance
of contract involves adjudication of a civil dispute. A Civil Court alone
is the competent forum to adjudicate the claim of specific performance
of contract.
6 cra-134-22j.odt
9. Referring to Section 34 of the SARFAESI Act, Mr. Joshi,
would contend that Section 34 of the SARFAESI Act bars the jurisdiction
of a Civil Court in respect of any matter in which the DRT or Appellate
Tribunal is empowered under the SARFAESI Act. Section 17 of the
SARFAESI Act, which provides jurisdiction to the DRT against the
measures to secure a debt, does not empower the DRT or Appellate
Tribunal to decide a suit for specific performance of the contract.
Therefore, the present suit falls beyond the preview of Section 17 of the
SARFAESI Act and therefore, the bar under Section 34 of the SARFAESI
Act is not applicable to the present case, which is filed by a third person
against a guarantor of the applicant.
10. Further, Mr. Joshi submitted that a suit for specific
performance of contract involves adjudication of contractual rights of
the parties. In the present case, the non-applicant no. 1 is entitled for
execution of sale deed in his favour and possession of the suit property.
Since, the applicant-Bank is proceeding to take possession under the
SARFAESI Act therefore, the applicant is directly concerned with the
suit for specific performance and the relief sought by the non-applicant
no. 1 will be rendered meaningless if the Bank proceeds with auction of
the suit property. Therefore, there is cause of action against the
applicant-Bank.
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11. Lastly, it is submitted that the relief of injunction in the
present case is an ancillary relief. When the suit for the main relief i.e.
specific performance of contract is not barred, the prayer with respect to
ancillary relief of injunction can always be granted by a Civil Court. The
applicant-Bank has a right to take possession of the suit property and
indeed auction the same under the SARFAESI Act and the suit for
specific performance of contract filed by the non-applicant no. 1 is also
filed for the very same purpose. Therefore, it is only a Civil Court,
which can adjudicate the controversy in this case and not the DRT. He
supported the impugned order passed by the learned Trial Court and
sought rejection of the civil revision application.
12. Section 34 of the SARFAESI Act deals with ouster of the
jurisdiction of a Civil Court and the same being relevant is reproduced
here below:-
"34. Civil court not to have jurisdiction.--No civil court shall
have jurisdiction to entertain any suit or proceeding in respect of
any matter which a Debts Recovery Tribunal or the Appellate
Tribunal is empowered by or under this Act to determine and no
injunction shall be granted by any court or other authority in
respect of any action taken or to be taken in pursuance of any
power conferred by or under this Act or under the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993 (51 of
1993)."
13. A bare perusal of Section 34 of the SARFAESI Act shows
that a Civil Court is especially barred to entertain any suit or proceeding
8 cra-134-22j.odt
only to the extent of the matters in which the DRT or the Appellate
Tribunal are empowered under the said Act to determine.
14. In order to decide the question as to whether the
jurisdiction of Civil Court under Section 9 of the CPC is ousted or not,
the real test would be to find out whether the DRT under Section 17 of
the said Act is empowered to hold an enquiry on a particular question
and to grant the relief in respect thereof. The extent of jurisdiction of
the DRT under Section 17 of the said Act shall decide the extent of
exclusion of the jurisdiction of the Civil Court to decide the dispute in
respect of the suit property.
15. Section 17 of the SARFAESI Act provides the matters in
respect of which the DRT is empowered to take cognizance, which is
reproduced as under:-
"17. Application against measures to recover secured debts.--
(1) Any person (including borrower), aggrieved by any of the
measures referred to in sub-section (4) of section 13 taken by
the secured creditor or his authorised officer under this Chapter,
may make an application along with such fee, as may be
prescribed, to the Debts Recovery Tribunal having jurisdiction in
the matter within forty-five days from the date on which such
measure had been taken:
Provided that different fees may be prescribed for making the
application by the borrower and the person other than the
borrower.
Explanation.--For the removal of doubts, it is hereby declared
that the communication of the reasons to the borrower by the
secured creditor for not having accepted his representation or
objection or the likely action of the secured creditor at the stage
of communication of reasons to the borrower shall not entitle the
9 cra-134-22j.odt
person (including borrower) to make an application to the Debts
Recovery Tribunal under this sub-section.
(1A) An application under sub-section (1) shall be filed before
the Debts Recovery Tribunal within the local limits of whose
jurisdiction--
(a) the cause of action, wholly or in part, arises;
(b) where the secured asset is located; or
(c) the branch or any other office of a bank or financial
institution is maintaining an account in which debt claimed is
outstanding for the time being.
(2) The Debts Recovery Tribunal shall consider whether any
of the measures referred to in sub-section (4) of section 13 taken
by the secured creditor for enforcement of security are in
accordance with the provisions of this Act and the rules made
thereunder.
(3) If, the Debts Recovery Tribunal, after examining the facts
and circumstances of the case and evidence produced by the
parties, comes to the conclusion that any of the measures
referred to in sub-section (4) of section 13, taken by the secured
creditor are not in accordance with the provisions of this Act and
the rules made thereunder, and require restoration of the
management or restoration of possession, of the secured assets to
the borrower or other aggrieved person, it may, by order,--
(a) declare the recourse to any one or more measures
referred to in sub-section (4) of section 13 taken by the secured
creditor as invalid; and
(b) restore the possession of secured assets or management
of secured assets to the borrower or such other aggrieved person,
who has made an application under sub-section (1), as the case
may be; and
(c) pass such other direction as it may consider appropriate
and necessary in relation to any of the recourse taken by the
secured creditor under sub-section (4) of section 13.
(4) If, the Debts Recovery Tribunal declares the recourse
taken by a secured creditor under sub-section (4) of section 13,
is in accordance with the provisions of this Act and the rules
made thereunder, then, notwithstanding anything contained in
any other law for the time being in force, the secured creditor
shall be entitled to take recourse to one or more of the measures
specified under sub-section (4) of section 13 to recover his
secured debt.
(4A) Where--
10 cra-134-22j.odt
(i) any person, in an application under sub-section (1),
claims any tenancy or leasehold rights upon the secured asset,
the Debt Recovery Tribunal, after examining the facts of the case
and evidence produced by the parties in relation to such claims
shall, for the purposes of enforcement of security interest, have
the jurisdiction to examine whether lease or tenancy,--
(a) has expired or stood determined; or
(b) is contrary to section 65A of the Transfer of Property Act,
1882 (4 of 1882); or
(c) is contrary to terms of mortgage; or
(d) is created after the issuance of notice of default and
demand by the Bank under sub-section (2) of section 13 of the
Act; and
(ii) the Debt Recovery Tribunal is satisfied that tenancy right
or leasehold rights claimed in secured asset falls under the sub-
clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of
clause (i), then notwithstanding anything to the contrary
contained in any other law for the time being in force, the Debt
Recovery Tribunal may pass such order as it deems fit in
accordance with the provisions of this Act.
(5) Any application made under sub-section (1) shall be dealt
with by the Debts Recovery Tribunal as expeditiously as possible
and disposed of within sixty days from the date of such
application:
Provided that the Debts Recovery Tribunal may, from time to
time, extend the said period for reasons to be recorded in
writing, so, however, that the total period of pendency of the
application with the Debts Recovery Tribunal, shall not exceed
four months from the date of making of such application made
under sub-section (1).
(6) If the application is not disposed of by the Debts Recovery
Tribunal within the period of four months as specified in sub-
section (5), any part to the application may make an application,
in such form as may be prescribed, to the Appellate Tribunal for
directing the Debts Recovery Tribunal for expeditious disposal of
the application pending before the Debts Recovery Tribunal and
the Appellate Tribunal may, on such application, make an order
for expeditious disposal of the pending application by the Debts
Recovery Tribunal.
(7) Save as otherwise provided in this Act, the Debts
Recovery Tribunal shall, as far as may be, dispose of the
application in accordance with the provisions of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993 (51 of
1993) and the rules made thereunder."
11 cra-134-22j.odt
16. Perusal of sub-Section (1) of the Section 17 of the said Act
shows that the right of appeal is available to any person including
borrower, who is aggrieved by the measures referred to in sub-section
(4) of Section 13, taken by the secured creditor or his authorized officer
under the said Chapter. Sub-section (2) of Section 17 confers a
jurisdiction upon the DRT to consider whether any of the measures
referred to in sub-section (4) of Section 13 are taken by the secured
creditor for enforcement of the security interest in accordance with the
provisions of the said Act and the rules made thereunder.
17. The jurisdiction of Civil Court to decide the suit involving
such other disputes in respect of secured assets, is barred only to the
extent of the matters in which the DRT or its Appellate Tribunal is
empowered by or under the said Act, to determine. The DRT is a Court
of limited jurisdiction, which cannot be enlarged beyond the
examination of validity of the action of a secured creditor under Section
13. All other disputes in respect of secured assets, which do not fall
within the jurisdiction of the DRT under Section 17 or its Appellate
Tribunal under Section 18, the Civil Court continues to exercise its
jurisdiction.
18. The issue came up for consideration before the Co-ordinate
Bench of this Court in the case of State Bank of India Vs. Sagar S/o.
12 cra-134-22j.odt
Pramod Deshmukh1, in para no. 33 of the said decision, it was held as
under:-
"33. In view of above, the sum and substance of the decision is
that :
(i) The jurisdiction of the Civil Court to entertain, try and
decide any suit or proceeding in respect of the property, which is
the subject matter of security interest created in favour of a
secured creditor, is barred only to the extent of the matters,
which the Debts Recovery Tribunal or the Appellate Tribunal is
empowered by or under the Act to determine. (Para 18)
(ii) The jurisdiction of the Civil Court in respect of the
matters, which do not fall within the jurisdiction of the Debts
Recovery Tribunal or its Appellate Tribunal under Sections 17
and 18 of the said Act, is not ousted or barred under the
provision of Section 34 of the said Act and the Civil Court
continues to exercise such jurisdiction. (Para 18)
(iii) In order to decide the question as to whether the
jurisdiction of the Civil Court under Section 9 of the Civil
Procedure Code is ousted or not, the real test would be to find
out whether the Debts Recovery Tribunal under Section 17, is
empowered to hold an enquiry on a particular question and to
grant relief in respect thereof. The extent of jurisdiction of the
Debts Recovery Tribunal under Section 17 shall decide the extent
of exclusion of jurisdiction of Civil Court to decide the dispute in
respect of the suit property. (Para 18)
(iv) The jurisdiction of the Civil Court to entertain, try and
decide a civil suit challenging the action of the defendant no.3-
Bank to take possession of the suit property and to sell the same
to recover its debts by enforcing security interest in the suit
property in accordance with the provisions of Section 13 of the
said Act, is completely barred by Section 34 of the said Act.
(Paras 19, 20 and 23)
(v) The jurisdiction of the Civil Court to entertain, try and
decide the suit for partition and separate possession of the
property in respect of which security interest is created in favour
of secured creditor, is not barred under Section 34 of the Act.
(Para 21)
(vi) The jurisdiction of Civil Court to entertain, try and decide
the Civil Suit claiming relief of declaration that the action of the
secured creditor to take possession of the property and to sell the
same, is fraudulent and void, as has been held by the Apex Court
1 2011 (3) Mh.L.J. 71
13 cra-134-22j.odt
in Mardia Chemical's case, is not barred by Section 34 of the said
Act. (Para 23)
(vii) The jurisdiction of the Civil Court to entertain, try and
decide Civil Suit simpliciter for permanent injunction to
permanently restrain the defendant No.3-Bank from taking
possession of the suit property and selling the same or to create
any third-party interest without any substantive relief of
declaration that the creation of security interest in favour of a
secured creditor was fraudulent and void ab initio, is completely
barred under the second part of Section 34 and hence
consequentially, the jurisdiction of Civil Court to pass an order of
temporary injunction in such suit, restraining the defendant
No.3-Bank from alienating the suit property or creating any
third-party interest therein, is also barred. (Para 25)
(viii) Once it is held that the jurisdiction of Civil Court is not
ousted under Section 34, to grant substantive relief of
declaration that creation of security interest in favour of a
secured creditor, was fraudulent and void, its jurisdiction to grant
consequential relief of permanent injunction and the relief of
temporary injunction in such suit, is not ousted. (Para 26)
(ix) Once it is held that the jurisdiction of the Civil Court to
entertain, try and decide the civil suit for partition and separate
possession of the suit property is not barred by Section 34 of the
said Act, then it follows that the jurisdiction of the Civil Court to
grant permanent and temporary injunction restraining the
defendants from dealing with the suit property or creating third
party interest therein is also not ousted by Section 34 of the said
Act.
(x) It is open for the plaintiffs or any other person having any
right, title, share or interest in the suit property to lodge their/his
objection under Section 17 of the said Act before the Debts
Recovery Tribunal, which is competent to deal with it in
accordance with law and to pass such orders as are necessary to
protect the interest of the plaintiffs/such person vis-a-vis the suit
property and also to balance the equities. (Para 30)
(xi) The question as to what shall be the effect of a decree
passed in the suit for partition and separate possession of the suit
property or for declaration that the action of secured creditor is
fraudulent and void ab initio by the Civil Court, on the
enforcement of security interest by the defendant No.3-Bank, i.e.
the secured creditor, can be determined only after culmination of
both the proceedings and not before. (Para 30)"
14 cra-134-22j.odt
19. In the year 2021, the Division Bench of this Court in the
case of Bank of Baroda Vs. Gopal Shriram Panda2 and other connected
matters, while answering the question referred, the Division Bench
approved the principle laid down in para 33 of decision in the case of
Sagar S/o. Pramod Deshmukh (supra), which is summarized in para no.
27 and reproduced as under:-
"27. In view of what we have discussed above, our considered
opinion to the question as referred to is as under :-
Question :
Whether the jurisdiction of a Civil Court to decide all the matters
of civil nature, excluding those to be tried by the Debts Recovery
Tribunal under Section 17 of the Securitisation Act, in relation to
enforcement of security interest of a secured creditor, is barred
by Section 34 of the Securitisation Act ?
Answer :
The answer, looking to the nature of the question, in our view, is
in parts :-
(A) Jurisdiction of the Debts Recovery Tribunal, to decide all
matters relating to Sections 13 and 17 of the SARFAESI Act, is
exclusive.
(B) In all cases, where the title to the property, in respect of
which a 'security interest', has been created in favour of the Bank
or Financial Institution, stands in the name of the borrower and/
or guarantor, and the borrower has availed the financial
assistance, it would be only the DRT which would have exclusive
jurisdiction to try such matters, to the total exclusion of the Civil
Court. Any pleas as raised by the borrowers or guarantors, vis-a-
vis the security interest, will have to be determined by the DRT.
(C) The jurisdiction of the Civil Court to decide all the
matters of civil nature, excluding those to be tried by the Debts
Recovery Tribunal under Sections 13 and 17 of the SARFAESI
Act, in relation to enforcement of security interest of a secured
creditor, is not barred by Section 34 of the SARFAESI Act.
(D) Where civil rights of persons other than the borrower(s)
or guarantor (s) are involved, the Civil Court would have
2 2021 SCC Online Bom 466
15 cra-134-22j.odt
jurisdiction, that too, when it is prima facie apparent from the
face of record that the relief claimed, is incapable of being
decided by the DRT, under Section 17 of the DRT Act, 1993 read
with Sections 13 and 17 of the CRA 29 of SARFAESI Act.
(E) Even in cases where the enforcement of a security
interest involves issues as indicated in Mardia Chemicals (supra)
of fraud as established within the parameters laid down in A.
Ayyasamy (supra); a claim of discharge by a guarantor under
Sections 133 and 135 of the Contract Act [Mardia Chemicals
(supra)]; a claim of discharge by a guarantor under Sections
139, 142 and 143 of the Contract Act; Marshaling under Section
56 of the Transfer of property Act [J.P. Builders (supra)]; the
Civil Court shall have jurisdiction.
(F) Examples as indicated in para 22.3, are illustrative of the
Civil Court's jurisdiction.
(G) The principles laid down in para 33 (i) to (ix) of Sagar
Pramod Deshmukh (supra) are in accordance with what we have
discussed and held above."
20. Coming to the fact of the present case, the non-applicant
no. 1 filed suit for specific performance of contract, possession and
injunction. The relief claimed in the suit are as under:-
"v) izfroknh dz-z 1 ps irh o izfroknh dz- 2 rs 4 ;kaps oMhy
e;r x.ks'k FkksVs ;kauh fnukad 16@06@2010 jksth oknh P;k
ukokus o gDdkr d:u fnysY;k djkjukE;kuqlkj lnj ekyeRrsps
dk;ns'khj uksna .kh--r [kjsnh[kr oknh ;kaps ukos uksna owu ns.;kpk
vkns'k Ogkok o lnj ekyeRrspk izR;{k rkck izfroknh dz- 1 rs
4 ;kauh oknh ;kauk |kok vlk lq/nk vkns'k ikjhr Ogkok-
c) izfroknh dz-a 1 rs 2 ;kauh lnj O;ogkjkr osGksosGh djkjHkax
d:u oknh ;kauk ts vkfFkZd uqdlku iksgpfoys vkgs] R;k laca/kkus
oknhaP;k Hkwrdkyhu rFkk Hkfo";dkyhu uqdlkuhP;k pkSd'khpk
vkns'k |kok-
c&c) rlsp izfroknh dz- 5 fdaok R;kaps izfrfu/kh ;kauh nkO;krhy
lnj ekyeRrk izLrwr nkO;kpk fudky ykxsikosrks tIrh d: u;s]
fdaok dqBY;kgh ekxkZus lnj ekyeRrsph foYgsokV ykÅ u;s] vlk
eukbZ gqde q kpk (Mandatory Injunction) vkns'k ikjhr
dj.;kr ;kok-
16 cra-134-22j.odt
d) ;k nkO;kpk laiw.kZ [kpZ izfroknh dz- 1 rs 4 ;kaP;koj
clfo.;kr ;kok-
M) ;k f'kok; oj uewn gfddrhr o ifjfLFkrhr fo-
U;k;ky;kl ;ksX; okVsy rh brj nkn oknh ;kauk izfroknhafo:/n
|koh-
b) ;k nkO;krhy etdwj o ekx.;kauk dks.krhgh ck/kk u ;srk
oknh ;kaph fodYis d:u v'kh ekx.kh o fouarh vkgs dh] lnj
nkO;kr vU; dks.kR;kgh dk;ns'kh dkj.kkLro oknhaP;k gDdkr lnj
ekyeRrsps [kjsnh[kr R;kaps ukokus uksna owu nsmu R;k ekyeRrsPkk rkck
oknhayk |kok vlk gqde q ukek@Mhdzh eatwj dj.ks 'kD; ukgh] v'kk
fu"d"kkZirz fo- U;k;ky; vkY;kl oknh ;kauh lnj ekyeRrsP;k
blkjkiksVh vkt ikosrks fnysyh ,dw.k jDde :i;s 55]00]000@&
o ;k jdesoj lnjpk nkok fudkyh ykxsikosrks jk"Vzh;dqr cWWdsP;k
O;kt njkus O;kt ns.;kpk vkns'k izfroknhfo:/n |kok o izfroknhauh
gh laiw.kZ jDde oknhl uxnh Lo:ikr |koh] vlkgh vkns'k
Ogkok- ;s.ks izek.ks Mhdzh djkoh-"
21. Thus, the plaintiffs are asking for decree of specific
performance of the contract, which according to him was entered into
between the non-applicant no. 1 and deceased- Ganesh Natthuji Thote,
the owner of the suit property. After his death, the non-applicant nos. 2
to 5 inherited the said property therefore, aforesaid suit came to be filed
against the non-applicant nos. 2 to 5. Thus, the relief the non-applicant
no. 1 is claiming decree is a for specific performance of contract,
possession as well as damages. There is no provision in the SARFAESI
Act conferring upon the DRT or its Appellate Tribunal the jurisdiction to
a pass decree for specific performance of contract, possession and
damages in favour of the third party i.e. the non-applicant no. 1.
Neither the DRT, under Section 17 of the SARFAESI Act or Appellate
17 cra-134-22j.odt
Authority, under Section 18 of the SARFAESI Act, is conferred with the
power to grant a decree for specific performance of the contract in
favour of the non-applicant no. 1.
22. In view of the above said discussion and the law enunciated
in the case of Sagar S/o. Pramod Deshmukh (supra) and Gopal
Shriram Panda (supra), it is clear that the jurisdiction of a Civil Court in
respect of the matters which do not fall within the jurisdiction of the
DRT or the Appellate Tribunal under Sections 17 and 18 of the
SARFAESI Act is not ousted or barred under the provisions of Section 34
of the SARFAESI Act and a Civil Court continues to exercise such
jurisdiction. The suit filed by a third party against a borrower relating to
specific performance of agreement to sale is not covered by Sections 17
and 18 of the SARFAESI Act. The DRT is not conferred with the power
to grant a decree of specific performance of contract. Hence, it cannot
be said that the jurisdiction of a Civil Court to entertain and try the suit
claiming relief in terms of prayer clauses a) to e) is barred. As held in
the case of Sagar S/o. Pramod Deshmukh (supra), once it is held that a
Civil Court has jurisdiction to entertain and try a Civil Suit claiming
relief under prayer clauses nos. a) to e) and the bar under Section 34 of
the SARFAESI Act does not apply then, the power of a Civil Court to
grant injunction, in terms of prayer clause no. bb) on its merit cannot
be ousted.
18 cra-134-22j.odt
23. So far as the decision of the Apex Court in the case of
Jagdish Singh Vs. Heeralal and others 3 relied upon by the applicant is
concerned, the Apex Curt notified the fact that land was purchased by
the respondent nos. 6 to 8 in their individual names after the death of a
common ancestor and that too by a registered sale deed in their
individual names, after recording these facts, the Apex Court held that
the expression "any person" used in Section 17 of the SARFAESI Act
was of wide import and would include guarantor also. In that scenario,
the Apex Court has held that a Civil Court has no jurisdiction to decide
the case.
24. The non-applicant also relied upon the case of Allahabad
Bank, Kolkatta Vs. Hemantkumar S/o. Omprakash Malpani4 decided by
the Apex Court. The question in the said decision was whether a
person, who has given personal guarantee can be covered under the
definition of security interest. By holding that personal guarantee is not
excluded in the clause mentioned under Section 31 of the SARFAESI
Act and in that scenario has held that a Civil Court has no jurisdiction.
Therefore, this will also not be helpful to the applicant.
25. Another case relied upon by the learned counsel for the
applicant is the decision of Co-ordinate Bench of this Court in the case
3 (2014) 1 SCC 479
4 2017 (6) Mh.L.J. 252
19 cra-134-22j.odt
of Bank of Rajasthan Vs. Suryakant Sukhdeo Gite5. In that case, the
plaintiff purchased the security interest from the borrower after creation
of security interest in favour of the Bank. The plaintiff in the said suit
was claiming through the borrower. In that scenario, it was held that a
Civil Court has no jurisdiction. Thus, the authorities relied upon by the
applicant will not be helpful.
26. This takes me to the next submission of the learned counsel
for the applicant that the plaint does not disclose cause of action against
the Bank therefore, the plaint is also liable to be rejected under Order 7,
Rule 11 of the CPC. Firstly, this submission was not made before the
learned Trial Court. This is for the first time it is being raised before this
Court in revisional jurisdiction, wherein while testing the impugned
order, the Court has to see only whether the Trial Court has committed
any illegality or irregularity while passing the impugned order.
27. Be that as it may, but the fact remains that the applicant has
been added as a necessary party to the suit by way of an amendment
application. The settled law is that if there is direct and legal interest in
the controversy involved in a suit, a person can be added as party to the
suit. Considering the nature of the claim, the applicant is a necessary
party to the suit.
5 2014 (6) Mh.L.J. 596
20 cra-134-22j.odt
28. What remains is the submission of the learned counsel for
the applicant-Bank that no cause of action arose against the applicant-
Bank. A cause of action is a bundle of facts, which taken together gives
the plaintiff a right to claim relief against the defendant. The Supreme
Court in the case of A. B. C. Laminart Pvt. Ltd. Vs. A. P. Agencies 6, in
para no. 12, has held as under:-
"12. A cause of action means every fact, which, if traversed, it
would be necessary for the plaintiff to prove in order to support
his right to a judgment of the Court. In other words, it is a
bundle of facts which taken with the law applicable to them gives
the plaintiff a right to relief against the defendant. It must
include some act done by the defendant since in the absence of
such an act no cause of action can possibly accrue. It is not
limited to the actual infringement of the right sued on but
includes all the material facts on which it is founded. It does not
comprise evidence necessary to prove such facts, but every fact
necessary for the plaintiff to prove to enable him to obtain a
decree. Everything which if not proved would give the defendant
a right to immediate judgment must be part of the cause of
action. But it has no relation whatever to the defence which may
be set up by the defendant nor does it depend upon the character
of the relief prayed for by the plaintiff."
29. I have gone through the relevant paras of the plaint, which
have been incorporated in the plaint while adding the applicant as
party-defendant to the suit, reproduced as under:-
"6&v) izLrqr nkok izyfa cr vlrkauk fnukad 13@11@2021
jksth izfroknhauh oknhyk ,d lqpuki= ikBfoys- lnjps lwpuki=kps
voyksdu dsY;ko:u oknhP;k fun'kZukl vkys dh] nkO;kr o.kZu
dsyy s h lnj ekyeRrk izfroknh cWd vkWQ cMkSnk] 'kk[kk dGac ;sFks
xgk.k Bsmu R;koj dtZ mpysys vkgs o R;k dtkZph olwyh dfjrk
laca/khr cWdus s R;kap;k fo:/n dkjokbZ lq: dsyh vkgs-
oknh dGforkr dh] oknhu nkO;krhy ekyeRrslaca/kh
izfroknh dza 1 ps irh o izfroknh dz- 2 rs 4 oMhy x.ks'k
FkksVs ;kaP;k lskcr fnukad 16@06@2010 jksth lkSnsi= dsys vlwu
6 1989 (2) SCC 163
21 cra-134-22j.odt
R;kauk blkjknk[ky ,dw.k 55 yk[k :i;s osGksosGh oknh ;kauh fnys
vkgsr o lnjph ckc izfroknh ;kauk EkkU; vkgs- ijarw] izLrwr nkok
izyfa cr vlrkauk oknhyk ekfgrh feGkyh dh] izfroknhauh R;kps
iklwu yiowu cWd vkWQ cMkSnk] 'kk[kk dGac ;kaps dMwu nkO;krhy
lnj ekyeRrk xgk.k d:u dtZ ?ksrys o R;kph ijrQsZ dsyh
ulY;kus laaca/khr cWd lnjph ekyeRrk rkC;kr ?ks.;kP;k csrkr
vkgs] fdaok dls ;kckcr ;kiwohZ dqBfygh ekfgrh izfroknhauh fnyh
ukgh- oknhus izfroknhaoj fo'okl d:u :i;s 55 yk[k ,o<h
eksBh jDde fnyh o izfroknhauh oknh dMwu cWdPs ;k laca/khph ckc
yifoyh- R;keqGs nkok nk[ky djrkauk ekfgrh vHkkoh oknhus cWd
vkWQ cMksnk] 'kk[kk dGac ;kauk izfroknh Eg.kwu i{k dsys ukgh-
ijarw] lnj nkok izyfa cr vlrkauk ojhy izek.ks oknhyk ekfgrh
feGkY;keqGs izLrwr nkO;kr izfroknh dz- 5 Eg.kwu cWd vkWQ
cMksnk] 'kk[k dGac ;kauk vko';d ikVhZ dsys vkgs- R;keqGs
izLrwr nkO;kpk fudky ykxsikosrk izfroknh dz- 5 ;kauh nkO;krhy
lnj ekyeRrsoj tIrh vk.kw u;s fdaok dqBY;kgh ekxkZus lnj
ekyeRrsph foYgsokV ykm u;s] vlk eukbZ gqdwekpk (Mandatory
Injunction) vkns'k gks.ks U;k;ksfpr vkgs-"
30. The holistic reading of the plaint clearly discloses the cause
of action against the applicant. The pleadings in para no. 6A of the
plaint disclose about action which is being taken by the Bank in respect
of the property and therefore, relief sought is against the applicant-
bank. Therefore, it cannot be said that the plaint does not disclose the
cause of action against the applicant.
31. In view of the above, the impugned order does not require
any interference. Hence, the civil revision application is dismissed.
(M. W. CHANDWANI, J.)
Signed by: Mr. Rajnesh Jaiswal
RR Jaiswal
Designation: PA To Honourable Judge
Date: 10/05/2024 17:57:23
