Sushma Suri & Anr. vs Mahamedha Urban Cooperative Bank ...
2011 Latest Caselaw 1165 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%           Judgment Reserved on: 24th February, 2011
            Judgment Pronounced on: 28th February, 2011

+           CS(OS) No. 2305/2010

SUSHMA SURI & ANR.                            .....Plaintiffs

                          - versus -

MAHAMEDHA URBAN
COOPERATIVE BANK LTD. & ORS                 .....Defendants

Advocates who appeared in this case:
For the Plaintiff: Mr. Pradeep K. Bakshi and Mr. Rajat
                   Navet, Advs.
For the Defendant: Mr. Gautam Awasthi and Mr. Achal
                     Sirohi, Advs. for D-1 Bank.
                     Mr. P.S.Bindra, Adv. for D-2.
                     Mr. Rabin Majumder with
                     Mr. K.Lingaraja, Adv. for D-3 and 4.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

V.K. JAIN, J

IA No. 17596/2010 (O.7 R.11 CPC filed by defendant No.1 for dismissal of suit)

1. This is a suit for declaration and injunction.

Defendant No.2 - Shakuntla Rani Raizada was the owner of

property No.E-9, Kalindi Colony, New Delhi. Vide sale deed

executed on 27.2.2009, she sold the first and second floor of

the aforesaid property to defendant No.3 - Smt. Sarita

Gupta. In the first week of April, 2009, defendant No.3 who

is the proprietor of defendant No.4 - Rashtriya Import

Export Inc. approached defendant No.1 - Mahamedha

Urban Co-opeative Bank Ltd. which is a cooperative bank,

for grant of cheque and draft purchasing limits of Rs.2

crores and mortgaged the first and second floor of property

No.E-9, Kalindi Colony, New Delhi, with the bank as

collateral security, by deposit of title deeds. She also

executed various loan documents in favour of defendant

No.1. She, however, failed to pay the dues of the bank and

a sum of Rs.1,03,45,000/- is stated to be due from her to

the bank as on 30.6.2010.

2. IA 17596/2010 has been filed by defendant No.1

under Order 7 Rule 11 of CPC seeking rejection of the

plaint/dismissal of the suit in view of the provisions

contained in Section 34 of SARFEASI Act on the ground that

civil court has no jurisdiction to entertain the present suit.

3. The application has been opposed by the plaintiffs

and they have alleged that defendant No.1 in connivance

with other defendants is guilty of committing fraud on the

plaintiffs. They have claimed that the issue of fraud can be

adjudicated only by a civil court and not by Debt Recovery

Tribunal.

4. In the present suit, the plaintiffs are seeking a

declaration that the mortgage/charge created by defendant

No.3 in favour of defendant No.1 bank with respect to the

second floor of property No.E-9, Kalindi Colony, New Delhi,

is illegal, fraudulent and void ab initio. They are also

seeking declaration that defendant No.1‟s notice dated

22.10.2010 purporting to take possession of the aforesaid

portion of the building is illegal and void ab initio. They

have also sought injunction restraining defendant No.1 from

taking any action with respect to the aforesaid portion of the

suit property.

5. Defendant No.2 - Shakuntla Rani Raizada filed a

civil suit being CS(OS) No.1004/2009 against defendant

No.3 - Sarita Gupta and one Mr. Sunil Bhat for cancellation

of the sale deed dated 27.2.2009 and for a declaration that

the sale deed executed by her was void and illegal.

Defendant No.1 was not made a party to the suit. In that

suit, a compromise application being IA 8494/2009 was

filed by the parties to that suit whereby they agreed to get

the sale deed dated 27.2.2009 cancelled and also agreed

that defendant No.3 would have no right, title or interest in

the first and second floor of the above referred building.

The suit was decreed in terms of the compromise between

the parties to the suit. The plaintiffs claim to have

purchased the second floor of property No.E-9, Kalindi

Colony, from defendant No.2 Shakuntla Rani Raizada vide

sale deed dated 7.5.2010.

6. Since defendant No.3 had defaulted in repayment

of the dues of the bank, action was initiated against her

under the provisions of Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest Act,

2002 (hereinafter referred as "SARFEASI Act"). A notice

dated 31.7.2010 under Section 13(2) of the Act was issued

by the bank to defendant No.4. Since defendant No.3 who

is the proprietor of defendant No.4 failed to make payment

even after notice, the bank initiated measures under Section

13(4) of the Act and took symbolic possession of the

mortgaged property vide notice dated 22.10.2010 and notice

of symbolic possession was also published in newspapers.

7. The term „bank‟ has been defined in Section 2(1) (c)

of the Act, which reads as under:-

2.(1)(c) "bank" means -

(i) a banking company; or

(ii) a corresponding new bank; or

(iii) the State Bank of India; or

(iv) a subsidiary bank; or

(v) such other bank which the Central Government may, by notification, specify for the purposes of this Act.

It would thus be seen that Central Government

may notify any bank even if it is not a banking company, a

corresponding new bank, State Bank of India or a

subsidiary bank.

8. Vide S.O. 105(E), dated 28 th January, 2003,

published in the Gazette of India, Extra., Pt. II, Sec. 3(ii),

dated 28th January, 2003, Central Government has

specified cooperative banks as defined in clause (cci) of

Section 5 of Banking Regulations Act, 1949 as bank within

the meaning of Section 2(1)(c) of SARFEASI Act. This

notification finds reference in the decision of Supreme Court

in Greater Bombay Coop Bank Ltd. V. United Yarn Tex

(P) Ltd and others, (2007) 6 SCC 236. Admittedly,

defendant No.1 is a cooperative bank. In view of the

abovereferred notification, defendant No.1 is also a bank for

the purpose of SARFEASI Act.

9. Section 13(1) of SARFEASI Act provides that

notwithstanding anything contained in section 69 or section

69A of the Transfer of Property Act, 1882, any security

interest created in favour of any secured creditor will be

enforced, without the intervention of the court or tribunal,

by such creditor in accordance with the provisions of this

Act. Sub-section 2 of the above referred Section provides as

under

"Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under subsection (4)."

10. Section 17(1) of the Act, to the extent it is relevant

provides that

"Right to appeal.- (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 measures 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 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 person ( including borrower) to make an application to the Debts Recovery Tribunal under this sub-section of section 17]"

Sub-section 2 of Section 17 provides that

"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."

Sub-section 3 of Section 17 provides that

"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 of the business of the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditors as invalid and restore the possession of the secured assets to the borrower or restore the management of the business to the borrower, as the case may be, and pass such order 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."

11. The use of the expression "any person" in Section

17 of the Act is important and, therefore, not only the

borrower but any other person who is aggrieved by any

measure taken by a secured creditor in exercise of the

power conferred on it under SARFEASI Act can approach

the Debt Recovery Tribunal to satisfy it that the action

taken by the secured creditor was not in accordance with

the provisions of the Act. It is open to the Debt Recovery

Tribunal, on being satisfied that the measures taken by the

secured creditor were not in accordance with the provisions

of the Act and the rules made thereunder, to restore the

possession of the asset in question to the borrower. In this

regard, Supreme Court, in Limited Bank of India v. Satya

Wati Tandon, (2010) 8 SCC 110, observed as under:-

"The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective."

12. With regard to the jurisdiction of the civil court in

matters pertaining to the action against the secured

creditor, section 34 of the SARFEASI Act provides that 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 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.

13. The provisions of SARFEASI Act came up for

consideration before the Supreme Court in Mardia

Chemicals Ltd & others v. Union of India & others,

(2004) 4 SCC 311. As regards the scope of the jurisdiction

of civil court, Supreme Court, inter alia, held as under:-

"50. "That is to say, the prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus applies to all such matters which may be taken cognizance of by the Debts Recovery Tribunal, apart from those matters in which measures have already been taken under sub- section (4) of Section 13.

51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages."

14. The case of the plaintiffs before this Court is that a

fraud was played upon them by the officers of defendant

No.1 in connivance with defendant No.3. Defendant No.3 is

the person who has created the mortgage in favour of

defendant No.1.

15. Order 6 Rule 4 of CPC provides that that in all

cases in which the party pleading relies on any

misrepresentation, fraud, breach of trust, wilful default or

undue influence and any of other cases in which particulars

may be necessary beyond such as are exemplified in the

aforesaid forms, particulars shall be stated in the pleadings.

In Ranganayakamma and another Vs. K.S.

Prakash (dead) by LRs. and others; (2008) 15 Supreme

Court Cases 673, the Supreme Court referring to the

provisions contained in Order VI Rule 4 of the CPC held that

when a fraud is alleged, the particulars thereof are required

to be pleaded. It was observed that when a contract is said

to be voidable by reason of any coercion, misrepresentation

or fraud, the particulars thereof are required to be pleaded.

In Ramesh B. Desai Vs. Bipin Vadilal Mehta;

(2006) 5 SCC 638, Supreme Court observed that Order VI

Rule 4 of CPC requires that complete particulars of fraud

shall be stated in the pleadings. A similar view was taken in

Sangramsinh P. Gaekwad Vs. Shantadevi P. Gaekwad;

(2005) 11 SCC 314.

16. The plaintiffs before this Court have not given any

particulars of the alleged fraud, either in the plaint or in

reply to the application of defendant No.1. In the absence of

such particulars, it is not possible for the Court to

investigate into the fraud alleged by the plaintiffs. More

importantly, there could have been no fraud with the

plaintiffs for the simple reason that the mortgage with

defendant No.1 bank was created in April, 2009 whereas the

sale deed in favour of the plaintiffs was executed on

7.5.2010. Since the plaintiffs were nowhere in picture,

when loan was taken and mortgage was executed by

defendant No.3 in favour of defendant No.4, there cannot be

any possible fraud on the part of any officer/official of

defendant No.1 bank on the plaintiffs. Defendant No.3 has

not come forward to the Court alleging any fraud on the part

of the bank officers with her. If at all there were to be a

fraud on the part of any officer/official of defendant No.1, it

could have been towards defendant No.3 alone. In any case,

this is not the case of the plaintiffs that any fraud was

played on defendant No.3 by the officers/officials of

defendant No.1 bank. Their case is that she connived with

the officers/officials of defendant No.1 in practicing a fraud

on the plaintiffs.

17. Section 17 of the Indian Contract Act, 1872

provides as under:-

"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.

Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.

There is no averment either in the plaint or in reply

to the application which may constitute fraud within the

meaning of Section 17 of Contract Act. During the course of

arguments, it was contended by the learned counsel for the

plaintiffs that the mortgage documents have been ante-

dated by the bank officers in connivance with defendant

No.3. I, however, find no such averment either in the plaint

or in the reply to the application and therefore cannot take

note of the argument.

18. I, therefore, have no hesitation in holding that

since no case of fraud is made out and there is nothing to

even suggest that the claim of defendant No.1 bank is

absurd and ex facie untenable, the jurisdiction of civil court

is barred in view of the provisions contained in Section 34 of

SARFEASI Act.

If the case of the plaintiffs is that no mortgage was

created by defendant No.3 in favour of defendant No.1 bank

by the time they purchased the second floor of property

No.E-9, Kalindi Colony, New Delhi, on 7.5.2010, it is very

much open to them to approach Debt Recovery Tribunal

under Section 17 of the aforesaid Act and satisfy the

tribunal that in fact there was no bona fide mortgage and

defendant No.3 was not the owner of the second floor on the

date the mortgage was actually created in favour of

defendant No.1. It would also be pertinent to note here that

defendant No.2 - Shakuntla Rani Raizada has already filed

S.A No. 75/2010 before Debt Recovery Tribunal-I and the

same is pending adjudication. Nothing prevents the

plaintiffs from approaching the tribunal in a similar

manner.

19. The learned counsel for the plaintiffs has referred

to the decision of Supreme Court in Greater Bombay Coop

Bank Ltd. (supra), wherein it was held that a cooperative

bank constituted under State Cooperative Assets Act or

Multi States Cooperative Acts, 2002 was not a „banking

company‟ within the meaning of Banking Regulations Act,

1949.

However, in view of the power specifically conferred

on Central Government by Section 2(1)(c) (v) of SARFEASI

Act empowering it to notify any other bank as bank for the

purpose of aforesaid Act and the notification dated

28.1.2003 issued in exercise of this power, this judgment is

of no help to the plaintiffs.

20. Order 7 Rule 11 of the Code of Civil Procedure to

the extent it is relevant provides that the plaint shall be

rejected where the suit appears from the statement in the

plaint to be barred by any law. Moreover, Rule 11 of Order

VII does not exhaust the power of a Civil Court to reject the

plaint. It only mandates rejection of the plaint, if one or

more grounds stated therein are made out. If the Civil

Court lacks inherent jurisdiction to try a suit, the plaint can

always be rejected on this ground alone.

21. Since the suit to the extent it pertains to defendant

No.1 is barred by Section 34 of SARFEASI Act, the plaint

qua defendant No.1 is rejected.

(V.K. JAIN) JUDGE FEBRUARY 28, 2011 'sn'