Smt. Vinita Pandey vs Vishwajeet Bhoumic
2021 Latest Caselaw 2261 Chatt

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                                                                           NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                         Reserved for orders on :25/08/2021
                            Order passed on :10/09/2021
                            WP227 No. 129 of 2021
     • Smt. Vinita Pandey W/o Shri Prashant Pandey, Aged About 42 Years,
       R/o Keshav Marg, Kududand, Bilaspur, Thana Civil Line, Tahsil and
       District Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
                                                                   ---- Petitioner
                                                                          Plaintiff
                                    Versus
     1. Vishwajeet Bhoumic S/o Dilip Kumar Bhoumic, Aged About 42 Years,
        R/o House No. R-6/43, Ramavaili, Raipur Road Bilaspur, Tahsil Bilha,
        District Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
     2. Abhilash Banerjee Aged About 38 Years, R/o Bangali Para, Sarkanda,
        Thana Sarkanda, Tahsil and District Bilaspur, Chhattisgarh., District :
        Bilaspur, Chhattisgarh
     3. Branch Manager Bank of Baroda, Branch - Rajkishor Nagar, Bilaspur,
        Thana Sarkanda, Tahsil and District Bilaspur, Chhattisgarh., District :
        Bilaspur, Chhattisgarh
     4. State Of Chhattisgarh, through the District          Collector   Bilaspur,
        Chhattisgarh., District : Bilaspur, Chhattisgarh
                                                                ----Respondents

Defendants

For Petitioner - Shri Neeraj Choubey, Advocate.

For Respondent No.3 - Shri Ankit Singhal, Advocate.

For State/Respondent No.4 - Shri Alok Nigam, Govt. Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 10-09-2021

1. This petition under Article 227 of the Constitution of India has been

brought praying to quash the order dated 17-02-2021 passed in Civil Suit

No.167-A/2019 pending before the Court of 7th Civil Judge Class-II Bilaspur.

2. A civil suit has been filed by the petitioner praying for reliefs of

declaration and permanent injunction against the respondents. It is pleaded

that the petitioner is owner of the suit property. The original papers of the suit

property were in possession of respondent No.1 who has misused the same

for obtaining loan in favour of respondent No.2. Without knowledge of the

petitioner her property has been mortgaged with the bank as security for the

said loan. Husband of the petitioner has filed a complaint in police station Civil

Lines Bilaspur on which Crime No.369/2019 has been registered against the

respondents for offence under Section 420/34 of the IPC. The respondent No.3

has issued notice to the petitioner demanding the outstanding loan amount of

Rs.1,33,316/-. The recovery proceeding has been further initiated and e-

auction notice has been served upon the petitioner. The petitioner/plaintiff then

filed application application under Section 151 of the CPC praying for issuance

of order of status quo with respect to the suit property which has been

dismissed by the impugned order.

3. It is submitted that the respondents have committed fraud upon the

petitioner, for which her property papers in possession of respondent No.1

were misused and without the consent of the petitioner she was made

guarantor of the loan. Therefore, initiation of the proceeding for recovery from

the petitioner is illegal and arbitrary.

It is further submitted that in the complaint registered by the police the

investigation has been completed and charge sheet has been filed against

respondent No.1 and 2 which is prima facie evidence regarding fraud

committed by the respondents upon the petitioner. The respondents have

raised objection on the maintainability of the civil suit which is not sustainable

and there is no bar for filing civil suit under the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest Act,

2002 (in short 'the SARFAESI Act, 2002), as it has been held by the Full Bench

of Hon'ble the Supreme Court in Madria Chemicals Limited Vs. Union of

India, 2004 (4) SCC 311. Therefore, the civil suit filed by the petitioner is

maintainable and the petitioner has also entitlement for grant of interim relief.

The impugned order is unsustainable. Prayer has been made to allow the

petition and grant relief to the petitioner.

4. Learned counsel for respondent No.3 submits that learned trial Court

has not committed any error in passing the impugned order. Although the

husband of the petitioner has filed a complaint in which charge sheet has been

filed, but respondent No.3 has not been made an accused in that case.

Therefore, role of the respondent No.3 had been bonafide throughout. It is

submitted that the bank papers for sanction of loan have been duly signed by

the petitioner. Copy of the bank papers has been submitted along with the

reply. These documents have never been denied by the petitioner. Section 34

of the Securitisation and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002 very clearly bars jurisdiction of a civil court 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.

Reliance has been placed on the judgment of Hon'ble the Supreme

Court in the case of Authorizd Officer, State Bank of India Vs. Allwyn

Alloys Private Limited and others, (2018) 8 SCC 120, United Bank of India

Vs. Satyawati Tondon and others, (2010) 8 SCC 110, K. Virupaksha and

another Vs. State of Karnataka and another, (2020) 4 SCC 440 and Sree

Anandhakumar Mills Vs. Indian Overseas Bank and others, (2019) 14 SCC

788 and it is submitted that it has been clearly held by Hon'ble the Supreme

Court that Section 34 of the SARFAESI Act, 2002 puts a clear bar on the

jurisdiction of any civil suit. It is submitted that the petitioner has option to seek

relief from the Debt Recovery Tribunal under Section 17 of the SARFAESI Act,

2002. Therefore, learned trial Court has not committed any error in passing the

impugned order. Hence, the petition may be dismissed.

5. Heard learned counsel for the parties and perused the documents.

6. Considered on the submissions.

7. The maintainability of the suit is a question in which this Court need not

to go into as there is already application filed by respondent No.1 under Order

7 Rule 11 of the CPC, which is yet to be decided by the trial Court. The

entitlement of the relief against the e-auction procedure initiated by respondent

No.3 appears to be directly connected with the maintainability of the suit.

Hence, under these circumstances there is requirement to consider on the

maintainability of the civil suit before considering the entitlement of the

petitioner for grant of relief as it was prayed in application under Section 151 of

the CPC. Exercising jurisdiction under Article 227 of the Constitution of India

this Court cannot step into shoes of the trial Court and decide the

maintainability of the civil suit before it being decided by the trial Court itself.

Therefore, the petition is disposed off at motion stage. The interim relief

granted by this Court shall continue for a further period of 45 days. In the

meanwhile, learned trial Court is directed to decide the application under Order

7 Rule 11 of the CPC filed by the respondents without being influenced by any

of the observations made in this order and then in case the suit survives,

consider the application filed by the petitioner for grant of interim relief.

8. The petition is disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Aadil