Fullerton India Credit Company ... vs Sri Madhukant Bajoria & Anr
2021 Latest Caselaw 2614 Cal

07.04.2021
 Item No.07
 Court No.17
   Avijit
                          FMA 449 of 2021
                                with
                        IA No. CAN 1 of 2021
                     (Through Video Conference)

               Fullerton India Credit Company Limited
                                versus
                     Sri Madhukant Bajoria & anr.


               Mr. Kaushik Chatterjee,
               Mr. Suparno Ghosh
               Mr. Subharthi Bhattacharya
                          ..........for the Appellant
               Mr. Chayan Gupta,
               Mr. Saumendra Mohan Rakshi
                          ..........for the Respondent No.1

The appeal is arising out of an order dated 2 nd

February, 2021 in a suit claiming tenancy over the

suit property created prior to mortgage. The plaintiff

prayed for an order of injunction restraining the

present appellant from interfering with the

possession of the present plaintiff in view of alleged

prior agreement of tenancy and/or creation of

tenancy in favour of the plaintiff. The plaintiff has

relied upon few rent receipts to show that before

measures have been taken under Section 13(4) of the

Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002 (in

short, Securitisaiton Act), the relationship of landlord

and tenant between the appellant and the defendant

no.1 was created.

On the basis of the aforesaid averments, the

learned Trial Court relying upon a judgment of our

former Chief Justice in a case reported in AIR 2008

Cal 9 granting an order of injunction.

The appeal is preferred by the securitisation

company questioning the maintainability of the suit

as well as the order passed by the learned Single

Judge on the ground that once the measures have

been taken under Section 13 of the Securitisation

Act, Civil Court loses its jurisdiction in view of

Section 34 of the said Act. It prima facie appears that

the measures were taken after creation of alleged

tenancy as claimed by the plaintiff. In view of the fact

that measures have been taken against the borrower

under Section 13(4) of the Securitisation Act and the

remedy lies in preferring an appeal under Section

17(4A) read with Section 18 of the Securitisation Act

is by a person aggrieved by the measures taken by

the appellant. The plaintiff is a person aggrieved. The

plaintiff should have approached the DRT instead of

filing a civil suit. The suit is not maintainable once

measures under Section 13(4) have been taken by the

securitisation company.

In view of the law laid down by the Hon'ble

Supreme Court in Bajarang Shyamsunder Agarwal

Vs. Central Bank of India & anr. reported in (2019) 9

SCC 94, we are prima facie of the opinion that the

order passed by the learned Civil Judge granting

injunction should continue till the matter is first

taken up by the Debt Recovery Tribunal. The DRT

shall decide regarding extension of interim order.

The interim order passed by the learned Trial

Court stands modified to the aforesaid extent.

This order is passed as we feel that the order

impugned is against the measures taken by the

securitisation company under Section 13(4) of the

Securitisation Act as rightly pointed out by the

learned counsel appearing on behalf of the

securitisation company and the remedy lies in

Section 17(4A).

In view of the pendency of the suit and the

proceeding before the learned Trial Court we feel that

the period of 45 days in preferring the application

before the DRT should be counted from this day and

not from the date of measures taken by the appellant.

The plaintiff should file appropriate application

before the Debt Recovery Tribunal having the

jurisdiction over the matter within three weeks from

date failing which interim order passed by this Court

modifying the order of learned Trial Court shall stand

vacated without any further reference to this Court.

In view of the aforesaid the suit filed before the

learned Civil Judge stands dismissed due to the

jurisdictional bar created under Section 17(4A) read

with Section 34 of the Securitisation Act.

With the aforesaid observation, the appeal

being FMA 449 of 2021 and the connected

application being CAN 1 of 2021 are disposed of.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual

undertaking.

(Kausik Chanda, J.)                 (Soumen Sen, J.)