Delhi High Court
Syndicate Bank vs Smt. Sheela Aggarwal & Anr. on 3 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 586/2013
% 3rd December , 2014
SYNDICATE BANK ......Petitioner
Through: Mr. V.Sudeer, Adv.
VERSUS
SMT. SHEELA AGGARWAL & ANR. ...... Respondents
Through: Mr. Ankit Jain, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India is
filed by the petitioner, and which is the defendant no.2 in the suit,
impugning the order of the trial court dated 4.4.2013 by which the trial court
has refused to dismiss the suit under Section 11 of the Code of Civil
Procedure, 1908 (CPC).
2. No doubt, the plaintiff in the suit/respondent no.1 herein had
filed objections in the recovery proceedings before the Recovery Officer of
the Debt Recovery Tribunal and which objections were dismissed by the
recovery officer on 29.8.2007, and the appeal before the Debt Recovery
CM(M) No. 586/2013 Page 1 of 3
Tribunal (DRT) was also dismissed on 4.9.2008 as also the further appeal to
the Debt Recovery Appellate Tribunal, however, the issue is not with respect
to whether the respondent no.1/plaintiff can obtain an interim order in the
suit filed for claiming rights to suit property bearing industrial plot no.52,
Sector 34, situated at Technology Park, Gurgaon (Haryana) but, whether the
suit itself is maintainable. The respondent no.1/plaintiff claims right as the
prior right holder in the suit property on account of an alleged agreement to
sell executed prior to the mortgage of the suit property in favour of the Bank.
3. This aspect as to whether a suit lies in spite of dismissal of the
objections filed in the recovery proceedings before the DRT has been dealt
with by the Supreme Court recently in the judgment in the case of Nitin
Gunwant Shah Vs. Indian Bank & Ors. (2012) 8 SCC 305 and the
Supreme Court in paras 37 and 38 clearly holds that even if objections are
dismissed, an unsuccessful objector has right to file a civil suit to establish
his right for possession of the property. These paras read as under:-
"37. Rule 47 stipulates that any person other than the
defaulter against whom an order under Rule 42 is passed is
entitled to file a civil suit to establish his right for possession of
the property.
38. The scheme of the above provisions clearly establishes an
alternative procedure for the eviction of a person (third party
to the proceedings) in occupation of a property which is
CM(M) No. 586/2013 Page 2 of 3
brought to sale pursuant to a Recovery certificate issued under
the 1993 Act. We have already taken note that there is a
possibility of a person other than the judgment-debtor being in
possession of the property of the judgment-debtor is
recognised even under Order 21 of the Code of Civil Procedure
and under Rule 98. It provides for the eviction of such persons
in an appropriate case where it is found that the person in
possession is not legally entitled for the same The Rules under
the Income Tax Act which are adopted for the purpose of the
Recovery of debts due to the financial institution and Banks
under the 1993 Act also provide a similar authority of law. The
law further provides under Rule 47 that any person so evicted
is entitled to file a separate suit to establish his legal claim.
Obviously, such a right is acknowledged in recognition of the
fact that an enquiry of the claim of the third party under the
Rules is summary in nature by a Quasi-Judicial Forum and
therefore, an examination of the issue by a Judicial Forum
would adequately protect the interests of such third party or
the purchaser, as the case may be."
4. The trial court therefore has rightly dismissed the application
under Section 11 CPC by the impugned order in view of the ratio of the
Supreme Court in the case of Nitin Gunwant Shah (supra) and which
judgment is referred to in para 9 of the impugned judgment.
5. In view of the above, there is no merit in the petition and the
same is therefore dismissed, leaving the parties to bear their own costs.
DECEMBER 03, 2014 VALMIKI J. MEHTA, J.
ib
