Bombay High Court
The Yavatmal Urban Co-Op Bank Ltd., Thr. ... vs Mrs. Asha Arunrao Barde And Others on 7 August, 2025
2025:BHC-NAG:7747
1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.87 OF 2024
The Yavatmal Urban Co-op Bank Ltd.,
Through Authorized Officer Mr. Anil
Ramdas Walkondawar, Yavatmal, Dist Applicant.
Yavatmal. (Ori.Def.No.2)
(On R.A.)
-Versus-
1. Mrs. Asha Arunrao Barde, Aged About. 60 (Ori. Plaintiff
years, Occ: Housewife, R/o Zhadgaon, No.1) (On R.A.)
Tah- Ralegaon, Dist. Yavatmal.
2. Mr. Mahesh Arunrao Barde, Aged About: 41 (Ori.Plaintiff
years, Occ Business, R/o Zhadgaon, Tah- No.2) (On R.A.)
Ralegaon, Dist. Yavatmal
3. Ganesh Arunrao Barde, Aged About: 39 (Ori. Defendant
years, Occ.: Business, R/o Zhadgaon, Tah- No.3) (On R.A.)
Ralegaon, Dist. Yavatmal
4. The Collector, Yavatmal, Dist. Yavatmal (Ori. Defendant
No.1) (On R.A.)
5. Nayab Tehsildar, Ralegaon, Tah. Ralegaon, (Ori. Defendant
Dist. Yavatmal No.4) (On R.A.)
Non-applicants.
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Adv. Shilpa O. Lohiya, for applicant.
Adv. S.O. Ahmed, for non applicant nos. 1 &2.
Ms. S.N. Thakur, AGP for non applicant nos. 4 &5.
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CORAM : MRS. VRUSHALI V. JOSHI, J.
Judgment reserved on : 08.07.2025
Judgment pronounced on : 07.08.2025
JUDGMENT:
-
1) Heard.
2) Rule. Rule made returnable forthwith. This Civil Revision
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Application is heard finally with the consent of the learned counsel
appearing for the parties.
3) The applicant prefers the present Civil Revision Application
being aggrieved by the impugned order below Exh.14 dated
14.03.2024 passed by the learned 2nd Joint Civil Judge Senior Division,
Yavatmal, in Regular Civil Suit No.08/2024, thereby rejecting the
application under Order 7 Rule 11 of the Code of Civil Procedure,
1908.
4) The impugned order dated 14.03.2024 has been passed
under Section 14 of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Act, 2002, (herein after referred to
'the SARFAESI Act") which is under challenge. In the matter of
Regular Civil Suit No.08/2024 (Asha Barde vs. The Collector,
Yavatmal and others) filed by non-applicant nos.1 and 2 herein, i.e.
plaintiffs, have prayed for the injunction against the action taken by the
applicant -original defendant no.2.
5) The non-applicant no.3 (herein referred as defendant no.3)
borrowed loan from the applicant (herein referred as defendant no.2 -
bank), The non-applicant nos. 1 and 2 i.e., the plaintiffs have claimed
ownership of suit property over the part of 151.29 sq.mtrs by way of
oral claim and alleged that the mortgage deed executed by the non-
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applicant no.3, i.e., the defendant no.3 is only to the extent of 42.94
sq.mtrs out of total 194.23 sq.mtrs of the said property. The non-
applicant nos.1 and 2 are claiming right over suit property through
non-applicant no.3 - original defendant no.3.
6) The learned counsel on behalf of the applicant, Ms. Lohiya,
strongly argued that, in any case, the civil suit without serving
mandatory notice under Section 164 of the Maharashtra Co-operative
Societies Act, 1960 is barred. Moreover, the relief claimed by the
Plaintiff Nos. 1 and 2 is in the nature of injunction against the action
taken by the applicants under the SARFAESI Act and also in the
nature of challenge to the said action, for which remedy under Section
17 of the SARFAESI Act is prescribed. Therefore, the suit in question
is barred under Section 34 of the SARFAESI Act. It was further
submitted by the advocate that the cause of action mentioned in the
plaint is action under the SARFAESI Act.
7) The applicant - original defendant no.2 has relied upon the
judgment of the Apex Court in the matter of Swamy Atmananda V/s
Sri Ramakrishna Tapovanam reported in AIR 2005 SC 2392 in which
it is observed that, the cause of action must include right to sue under
the law.
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8) Learned advocate, Mr. Ahmed, vehemently opposed the
submissions made on behalf of applicant-Bank.
9) He submitted that the relations are admitted. It is also
admitted that defendant no.3 has borrowed loan from defendant no.2 -
bank. It was submitted that the loan was borrowed on 42.94 sq.meters
property out of the entire property of 194.23 sq.meters. The certified
copy of mortgage deed confirms the same. The copy of mortgage deed
filed by defendant no.2 - bank on 12/01/2024 shows the area as
194.23 sq.meters. It was specifically submitted that entire plot no.257
admeasuring 194.23 sq.meters does not belong to defendant no.3. It
was purchased by husband of plaintiff no.1 who is also the father of
plaintiff no.2 and defendant no.3. The above property is recorded in
the name of plaintiffs and defendant no.3 in view of heirship certificate
issued by the Court.
It was further stated that the plaintiffs have applied for exemption
from issuing notice under Section 168 of the Maharashtra Co-operative
Societies Act and it was allowed. The defendant no.2 - bank has no
right to seize or to alienate the property mentioned above except 42.94
sq.meters as mentioned in the mortgage deed.
10) Heard the learned counsel appearing for the respective
parties.
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11) The suit is filed by the plaintiffs for declaration that
order passed by the defendant No.1 is not binding upon them.
The plaintiffs are directly challenging the order of Magistrate for
taking the possession under the SARFAESI Act. The injunction is
also prayed by the plaintiff stating that in the mortgage deed, the
mortgage is shown of the entire property. In fact only 42.94
Sq.Meters area from the said property was mortgaged with
defendant No.2-Bank. The plaintiff has relied on the certified
copy of mortgage deed. As per certified copy, the mortgage
property was admeasuring 42.94 sq. Mtrs. house No.596/3 in
Ward No.3 of village Zhadgaon. There is a difference in the
property mentioned in the mortgage deed filed by the Bank,
which is admeasuring 194.23 sq. meters. House No. 596/3 in
ward No.3 situated at Village Zadgaon. The plaintiff has stated
that defendant No.3 is the owner of the only said portion as oral
partition was there. As the bank has committed a fraud on the
plaintiff and plaintiff is praying for declaration, the bar under
Section 34 of the SARFAESI Act is not applicable. The plaintiff
has relied on the judgment of this Court dated 12.08.2024 in Writ
Petition No.1724 of 2023 (The Branch Manager, Bank of Baroda,
Kavita.
Achalpur Branch Vs. Sau.Amruta Kumar Agrawal and
ors.),wherein this court has relied on the judgment of the Hon'ble
Apex Court in case of M/s Sree Anandhakumar Mills Ltd. Vs.
Indian Overseas Bank and ors. AIR 2018 SC (supp) 2472 to
contend that the issue involved in the present case is no more res
integra. He submits that the Supreme Court in identical situation
has held that the person aggrieved by the proceedings under the
SARFAESI Act should approach the Debts Recovery Tribunal
(DRT) and that the Civil Courts jurisdiction in the matter is
completely barred. The Court further held that the suit for
partition was not maintainable. It is observed in paragraph No.4 of
the said judgment thus:
"The matter need not engage the Court
in any great detail as in view of the law laid
down by this Court in Jagdish Singh vs.
Heeralal and others1 it would clear and
evident that the suit filed by the second
respondent (i.e. O.S. No.106 of 2009) is not
maintainable. In Jagdish Singh (supra) this
Court after an elaborate consideration of the
provisions of the SARFAESI Act, particularly,
Section 2(zf), 2(zc), 13(1), 17, 18 and 34,
took the view, on almost similar facts, that a
suit for partition would not be maintainable in
a situation where proceedings under the
SARFAESI Act had been initiated. It was also
held that the remedy of any person aggrieved
by the initiation of proceedings under the
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SARFAESI Act lies under Section 1 (2014) 1
SCC 479 17 which provides for an efficacious
and adequate remedy to a party aggrieved.
Paragraph 24 of the report in Jagdish Singh
(supra) which make the above position clear
may be usefully extracted below:
"24. Statutory interest is being created in
favour of the secured creditor on the secured
assets and when the secured creditor proposes
to proceed against the secured assets, sub-
section (4) of Section 13 envisages various
measures to secure the borrower's debt. One
of the measures provided by the statute is to
take possession of secured assets of the
borrowers, including the right to transfer by
way of lease, assignment or realising the
secured assets. Any person aggrieved by any of
the "measures" referred to in sub-section (4)
of Section 13 has got a statutory right of
appeal to the DRT under Section 17. The
opening portion of Section 34 clearly states
that no civil court shall have the jurisdiction
to entertain any suit or proceeding "in respect
of any matter" which a DRT or an Appellate
Tribunal is empowered by or under the
Securitisation Act to determine. The
expression "in respect of any matter" referred
to in Section 34 would take in the "measures"
provided under sub-section (4) of Section 13
of the Securitisation Act. Consequently, if
any aggrieved person has got any grievance
against any "measures" taken by the borrower
under sub-section (4) of Section 13, the
remedy open to him is to approach the DRT
or the Appellate Tribunal and not the civil
court. The civil court in such circumstances
has no jurisdiction to entertain any suit or
proceedings in respect of those matters which
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fall under sub-section (4) of Section 13 of the
Securitisation Act because those matters fell
within the jurisdiction of the DRT and the
Appellate Tribunal. Further, Section 35 says,
the Securitisation Act overrides other laws, if
they are inconsistent with the provisions of
that Act, which takes in Section 9 CPC as
well."
12) In view of the judgment of the Hon'ble Supreme Court
, the Court has taken aid of it's earlier judgment in the case of
Jagdish Singh Vs. Heeralal and ors. AIR 2014, SC 371 has
categorically held that any person aggrieved by any of the
measures referred to in Sub Section (4) of Section 13 of the
SARFAESI Act has got statutory right of approaching the DRT
under Section 17. The Court then taking aid of Section 34 of the
SARFAESI Act, has held that the Civil Court shall have no
jurisdiction to entertain any suit or proceeding, "in respect of any
matter," which the DRT or an Appellate Tribunal is empowered
by or under SARFAESI Act. Accordingly, the Supreme Court held
that the suit for partition is also not maintainable.
13) Considering the view taken by the Hon'ble Apex
Court, the plaintiff has a remedy available before the DRT. The
plaintiff is directly challenging the order passed by the Magistrate.
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As per Section 34 of the SARFAESI Act, it is mentioned that in
respect of any matter, the DRT has jurisdiction to decide the said
issue. As per Section 34 of the SARFAESI Act there is a bar as the
order of the Magistrate of taking possession under the SARFAESI
Act is challenged. In such circumstances, without delving into
about the Maharashtra Co-operative Societies Act and considering
whether the plaintiff is the member of the Co-operative society,
bar under section 34 of the SARFAESI Act is sufficient to reject the
plaint under Order VII Rule 11 of the Civil Procedure Code.
14) Resultantly, the Civil Revision Application is allowed.
15) The impugned order passed by the learned 2nd Joint Civil
Judge Senior Division, Yavatmal, in Regular Civil Suit No.08/2024 is
hereby quashed and set aside.
16) Rule is made absolute accordingly.
17) Civil Revision Application stands disposed of.
(MRS.VRUSHALI V. JOSHI, J)
Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 08/08/2025 10:27:03
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