Delhi High Court

Neha Aggarwal vs Pnb Housing Finance Ltd & Ors on 7 July, 2016

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 7th July, 2016

+                 RFA No.524/2015 & CM No.14116/2015 (for stay).

        NEHA AGGARWAL                                    ..... Appellant
                   Through:            Mr. H.C. Mittal with Mr. Amit
                                       Kumar, Advs.
                                    versus
    PNB HOUSING FINANCE LTD & ORS              ..... Respondents

Through: Mr. Satish Kumar and Mr. Satyapal Dullar, Advs. for R-1.

Mr. Sanjeev Narula and Mr. Abhishek Ghai, Advs.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908

(CPC) impugns the judgment and decree dated 16th March, 2015 of the Court of

the Additional District Judge (ADJ)-04 (NW), Rohini District Courts, Delhi of

dismissal of CS No.261/14 filed by the appellant/plaintiff consequent to

decision against the appellant/plaintiff on the preliminary issue framed in the

suit.

2. Notice of the appeal was issued and trial court record requisitioned and

though in response thereto the counsels for the respondent no.1 PNB Housing

Finance Ltd. (PNBHFL) and respondent no.2 Allahabad Bank appeared but

none appeared for the respondent no.3 The South Indian Bank Ltd. (SIBL)

despite service. Notice issued to the respondents no.4 to 7 namely Shri Joginder

Pal Gupta, Shri Tarun Gupta, Smt. Neelam Gupta and Shri Sita Ram was

ordered to be served by publication but the appellant/plaintiff did not get the

same effected and on the contrary on 26th April, 2016 the counsel for the

appellant/plaintiff pressed for interim relief contending that the appeal would

become infructuous in the absence thereof. It was also his contention that the

respondents no.4 to 7 Shri Joginder Pal Gupta, Shri Tarun Gupta, Smt. Neelam

Gupta and Shri Sita Ram were not appearing before the Trial Court as well. In

this view of the matter, service of the respondents no.4 to 7 was dispensed with

and the counsels for the appellant/plaintiff and the appearing

respondents/defendants were heard and order reserved. The trial court record

has been perused.

3. The appellant/plaintiff on 10th December, 2012 instituted the suit from

which this appeal arises pleading (i) that plot no.130, Pocket D-14, Sector-7,

Rohini, Delhi was sold by the Delhi Development Authority (DDA) vide

Conveyance Deed dated 9th February, 2001 in favour of one Shri Amar Lal; (ii)

Shri Amar Lal vide Sale Deed dated 23rd August, 2004 sold the said property to

one Smt. Sunita Gupta; (iii) the said Smt. Sunita Gupta vide Sale Deed dated

11th August, 2005 sold first and second floors of the aforesaid property to one

Shri Mohinder Khurana; (iv) the said Shri Mohinder Khurana sold the first

floor without roof rights of the said property vide Sale Deed dated 22 nd

December, 2005 to the respondent/defendant no.6 Smt. Neelam Gupta; (v) the

respondent/defendant no.6 Smt. Neelam Gupta sold the said first floor vide Sale

Deed dated 23rd December, 2008 to the appellant/plaintiff and put the

appellant/plaintiff in possession thereof and the appellant/plaintiff since then

has been residing in the said property; (vi) that respondent/defendant no.6 Smt.

Neelam Gupta while purchasing the said first floor from Shri Mohinder

Khurana as aforesaid had taken a house loan of Rs.9 lacs from Union Bank of

India, Model Town, Delhi by mortgaging the said flat with the said Bank on

22nd December, 2005 by deposit of title deed and which loan was paid off by

the respondent/defendant no.6 Neelam Gupta to the said Bank on 2nd June,

2008 and the flat redeemed; (vii) that the appellant/plaintiff on 16th March,

2009, for the purposes of getting the said flat whitewashed had temporarily

removed her goods/articles therefrom but on which date the said flat was sealed

by the respondent no.1 PNBHFL; (viii) that the appellant/plaintiff on making

enquiries learnt that the respondents/defendants no.4 & 5 Shri Joginder Pal

Gupta and Shri Tarun Gupta had taken loan from the respondent no.1 PNBHFL

on 9th April, 2007 by giving alleged title deeds of the said flat to the respondent

no.1 PNBHFL; that the said title deeds are forged and fabricated; (ix) that the

said loan was granted owing to conspiracy of senior officials of the respondent

no.1 PNBHFL; (x) that the appellant/plaintiff challenged the notices dated 18 th

February, 2009 of the respondent no.1 PNBHFL of sale of the subject flat by

filing SA No.107/2009 before the Debt Recovery Tribunal (DRT)-III, Delhi;

(xi) that the respondent/defendant no.2 Allahabad Bank also issued notice dated

5th July, 2010 alleging that the respondents/defendants no.5 & 7 namely Shri

Tarun Gupta and Shri Sita Ram had got loan from the said Bank by depositing

the title deeds of the said flat; (xii) that the appellant/plaintiff filed SA

No.442/2010 before the DRT-III, New Delhi impugning the said notice dated

5th July, 2010 of the respondent/defendant no.2 Allahabad Bank; (xiii) that the

appellant/plaintiff learnt that the respondent/defendant no.2 Allahabad Bank

had filed O.A. No.246/2012 before the DRT against the respondents/defendants

no.5 & 7 Shri Tarun Gupta and Shri Sita Ram; (xiv) that the appellant/plaintiff

further learnt that the respondent/defendant no.3 SIBL has filed O.A.

No.35/2011 against the respondents/defendants no.4 & 6 Shri Joginder Pal

Gupta and Smt. Neelam Gupta before DRT-III for recovery of housing loan

secured by title deeds of the subject flat; the appellant/plaintiff got herself

impleaded in the said proceedings; (xv) that it is evident from the above that

the respondents/defendants no.4 to 7 by entering into criminal conspiracy with

the officials of the respondents/defendants no.1 to 3 PNBHFL, Allahabad Bank

and SIBL have forged and fabricated title documents of the subject flat

(detailed averments of the forgery/fabrication of documents are contained in the

plaint but reference whereto for the purposes of this appeal is not deemed

necessary); (xvi) that title documents of the subject flat in possession of the

respondents/defendants no.1 to 3 PNBHFL, Allahabad Bank and SIBL being

forged and fabricated they acquired no rights in the subject flat; and, (xvii) that

the appellant/plaintiff also learnt that the alleged loan given by

respondent/defendant no.1 PNBHFL has become time barred and the

respondent/defendant no.1 PNBHFL for this reason also is not entitled to

continue with the sale of the subject flat.

In the facts aforesaid, the appellant/plaintiff claimed the reliefs of (i)

declaration that she is the owner in possession of the subject flat and entitled to

enjoy the possession thereof; (ii) declaration that the proceedings initiated by

the respondents/defendants no.1 to 3 PNBHFL, Allahabad Bank and SIBL

before the DRT or any other authority other than Civil Court with respect to the

said flat are not lawful; (iii) mandatory injunction directing the

respondents/defendants no.1 to 3 PNBHFL, Allahabad Bank and SIBL to

remove their alleged seal, lock and notices from the subject flat; and, (iv)

permanent injunction restraining the respondents/defendants from interfering

with the appellant‟s/plaintiff‟s peaceful possession of the property.

4. The respondent/defendant no.1 PNBHFL contested the suit by filing a

written statement pleading (i) that the Sale Deed dated 23rd December, 2008 on

the basis of which the appellant/plaintiff claims to be the owner of the subject

flat was registered on 29th January, 2009; (ii) that the respondent/defendant

no.6 Smt. Neelam Gupta is the wife of the respondent/defendant no.4 Shri

Joginder Pal Gupta and mother of the respondent/defendant no.5 Shri Tarun

Gupta who are the borrowers of the respondent/defendant no.1 PNBHFL; (iii)

that the respondents/defendants no.4&5 Shri Joginder Pal Gupta and Shri

Tarun Gupta had availed of housing loan facility from the

respondent/defendant no.1 PNBHFL and in pursuance whereto the loan was

disbursed directly to Shri Mohinder Khurana aforesaid seller of the subject flat

and the said flat was mortgaged with the respondent/defendant no.1 PNBHFL

by deposit of Sale Deed dated 13th April, 2007 executed by Shri Mohinder

Khurana in favour of the respondent/defendant no.4 Shri Joginder Pal Gupta;

(iv) Shri Mohinder Khurana at least till 26th March, 2007 was residing in the

subject flat along with his family; (v) that a perusal of the Sale Deed dated 22 nd

December, 2005 executed by Shri Mohinder Khurana in favour of Smt.

Neelam Gupta relied upon by the appellant/plaintiff shows the

respondents/defendants no.4 & 5 Shri Joginder Pal Gupta and Shri Tarun

Gupta to be witnesses thereof; (vi) that the respondent/defendant no.1

PNBHFL before accepting the mortgage of the subject flat had got title search

thereof done and which disclosed Shri Mohinder Khurana and not the

respondent/defendant no.6 Smt. Neelam Gupta to be the owner of the subject

property; (vii) it is evident that the respondents/defendants no.4 to 6 Shri

Joginder Pal Gupta, Shri Tarun Gupta and Smt. Neelam Gupta have forged and

fabricated Sale Deed dated 22nd December, 2005 relied upon by the

appellant/plaintiff and thus the respondent/defendant no.6 Smt. Neelam Gupta

had no authority to sell the subject flat to the appellant/plaintiff; (viii) that the

respondent/defendant no.1 PNBHFL had on 18th February, 2009 already taken

physical possession of the subject flat under the provisions of Securitization

and Reconstruction of Financial Assets and Enforcement of Security Interest

Act, 2002 (SARFAESI Act) after serving notices dated 12th February, 2008 and

14th January, 2009 to the respondents/defendants no.4 & 5 Shri Joginder Pal

Gupta and Shri Tarun Gupta and the Sale Deed dated 23 rd December, 2008

registered on 29th January, 2009 in favour of the appellant/plaintiff is of after

the said dates; (ix) that the appellant/plaintiff is in collusion with the

respondents/defendants no.4 to 6 Shri Joginder Pal Gupta, Shri Tarun Gupta

and Smt. Neelam Gupta; and, (x) denying that the claim of the respondent no.1

PNBHFL was time barred.

5. The respondent/defendant no.2 Allahabad Bank also contested the suit

by filing a written statement pleading (i) that the respondents/defendants no.5

& 7 Shri Tarun Gupta and Shri Sita Ram had availed of a housing loan facility

for purchase of the subject flat and to secure the said loan created an equitable

mortgage of the subject flat by deposit of title deeds thereof; and, (ii) that the

said respondents/defendants no.5 & 7 Shri Tarun Gupta and Shri Sita Ram

having defaulted in re-payment of loan, proceedings under the SARFAESI Act

had been initiated and symbolic possession taken by serving a notice dated 24 th

April, 2010 and proceedings before the DRT were also pending.

6. The respondent/defendant no.3 SIBL also contested the suit by filing a

written statement pleading (i) that the plaint was liable to be rejected under

Order 7 Rule 11 of the CPC; (ii) that the respondent/defendant no.6 Smt.

Neelam Gupta had availed of a loan for purchase of a home and secured the

said loan by deposit of title deeds; (iii) that upon default in payment of the said

loan, proceedings under SARFAESI Act before the DRT were initiated; (iv)

that the sale even if any of the subject flat by the respondent/defendant no.6

Smt. Neelam Gupta in favour of the appellant/plaintiff has to be subject to the

mortgage; (v) that the suit is barred by Section 34 of the SARFAESI Act; and,

(vi) that the appellant/plaintiff could not maintain both i.e. the suit as well as

SAs and impleadment applications preferred before the DRT.

7. Though the replication filed by the appellant/plaintiff to the aforesaid

written statements are also on trial court record but need to refer thereto is not

felt.

8. The respondents/defendants no.4 to 7 Shri Joginder Pal Gupta, Shri

Tarun Gupta, Smt. Neelam Gupta and Shri Sita Ram before the Trial Court

also are found to have been ordered to be served by publication which was

effected and inspite whereof they did not appear and were proceeded against ex

parte.

9. The learned ADJ vide order dated 30th August, 2014 dismissed the

application of the appellant/plaintiff under Order 39 Rules 1 & 2 of the CPC to

restrain the respondents/defendants no.1 to 7 from dealing with the subject flat

and on the pleadings aforesaid framed the following issues:-

"1. Whether the plaintiff has no right, title or interest in the suit property in question as she is not the owner of the suit property? OPD

2. Whether suit filed by the plaintiff is not maintainable and barred by the provisions of SARFAESI Act, 2002? OPD

3. Whether the suit filed by the plaintiff is not maintainable as he has not assessed the valuation of suit property as per the Suit Valuation Act and has not filed the appropriate ad-valoram court fees as per the Court Fees Act? OPD

4. Whether the plaintiff is entitled for the declaration that she is the owner of the suit property in question? OPP

5. Whether defendants have no right, title or interest in the suit property in question? OPP

6. Whether the plaintiff is entitled for the declaration that proceedings initiated before DRT or any authority other than civil court are not lawful? OPP

7. Whether the plaintiff is entitled for the decree of mandatory injunction against the defendants no.1, 2 & 3 directing them to remove their seal, lock and notice from the suit property in question? OPP

8. Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants from interfering in the peaceful enjoyment of property by the plaintiff? OPP

9. Any other relief."

And of which, Issue No.2 was ordered to be treated as a preliminary

issue.

10. The learned ADJ, after hearing arguments on the preliminary issue, vide

the impugned judgment held the suit to be not maintainable, reasoning (i) that

the appellant/plaintiff had not sought any relief of declaration that the

defendants had played any fraud on her or of declaration of the other title deeds

as forged and fabricated; (ii) that Section 34 of the SARFAESI Act bars the

jurisdiction of Civil Court to entertain any suit or proceedings in respect of any

matter which a Debt Recovery Tribunal or the Appellate Tribunal is

empowered by or under the Act to determine and from granting injunction in

respect of any action taken in pursuance to the SARFAESI Act or the Recovery

of Debts due to Banks and Financial Institutions Act, 1993 (DRT Act); (iii) that

Section 41(b) of the Specific Relief Act, 1963 also bars the grant of any

injunction restraining institution or prosecuting any proceeding in a Court not

subordinate to that from which the injunction is sought; (iv) DRT is not

subordinate to the Court of Additional District Judge; (v) DRT has the

jurisdiction to entertain the disputes as claimed in the suit and to grant reliefs as

claimed in the suit; (vi) judgment dated 19 th November, 2013 of this Court in

Ritu Gupta Vs. Usha Dhand (2013) 205 DLT 218 cited by appellant/plaintiff

was on different facts and not applicable; (vii) that the sale deed in favour of

the appellant/plaintiff is subsequent to the initiation of proceedings before the

DRT; (viii) if the appellant/plaintiff at the time of having the sale deed

executed in her favour had no knowledge of the facts as pleaded in the plaint

then she had been defrauded but which was not pleaded by her; conversely if

the appellant/plaintiff was having knowledge of the facts she shall in any case

be not entitled to any relief having not acted bona fide; (ix) reliance was placed

on (a) Mardia Chemicals Vs. UOI (2004) 4 SCC 311, (b) Nahar Industrial

Enterprises Ltd. Vs. Hongkong Shanghai Banking Corp. (2009) 8 SCC 646;

and, (c) Jagdish Singh Vs. Heeralal (2014) 1 SCC 479; and, (x) that the

jurisdiction of the Civil Court to entertain the suit was barred by Section 34 of

the SARFAESI Act read with Section 9 of the CPC.

11. The counsel for the appellant/plaintiff, before me, has generally

reiterated the contents of the plaint and otherwise not cited any case law. In the

Memorandum of Appeal, the impugned judgment and decree is assailed on the

grounds (i) that the respondents/defendants no.4 & 5 Shri Joginder Pal Gupta

and Shri Tarun Gupta were never the owners of the subject flat; (ii) that in case

of fraud and forgery the Civil Court has jurisdiction to try the suit and decide

title of the property; (iii) that the provisions of Section 18 of the DRT Act and

Section 34 of the SARFAESI Act do not apply to the present suit because the

appellant/plaintiff is neither guarantor nor the debtor of any of the

respondents/defendants no.1 to 3 PNBHFL, Allahabad Bank and SIBL; and,

(iv) that no title in immovable property by way of equitable mortgage is

created if the documents deposited are not genuine.

12. Significantly, the appellant/plaintiff in the Memorandum of Appeal also

has not controverted the reasoning of the learned ADJ of the appellant/plaintiff

in the suit having not claimed any relief of declaration of having been

defrauded or of the title documents on the basis whereof the

respondents/defendants no.1 to 3 PNBHFL, Allahabad Bank and SIBL are

claiming title to the property being forged and fabricated.

13. The counsel for the respondent/defendant no.1 PNBHFL besides on the

judgments referred to by the learned ADJ, in addition, referred to United Bank

of India Vs. Satyawati Tondon (2010) 8 SCC 110.

14. I have considered the controversy.

15. The appellant/plaintiff, in the suit from which this appeal arises is

claiming the reliefs as aforesaid (a) of declaration of the proceedings initiated

by the respondents/defendants no.1 to 3 PNBHFL, Allahabad Bank and SIBL

before the DRT, as not lawful; (b) of restraining the respondents/defendants

from enforcing their rights if any under the SARFAESI Act; and, (c) of

mandatory injunction directing the respondents/defendants no.1 to 3 PNBHFL,

Allahabad Bank and SIBL to undo what they have already done under the

SARFAESI Act. The said reliefs are found by me to be in the teeth of Section

18 of the DRT Act which bars the Civil Court from exercising any jurisdiction

or power „in relation to‟ the matters specified in Section 17 thereof (i.e. to

entertain and decide applications for recovery of debts due to banks and

financial institutions) and Section 34 of the SARFAESI Act which bars the

jurisdiction of the Civil Court to entertain any suit or proceeding in respect of

any matter which DRT is empowered by or under the said Act to determine and

bars grant of injunction in respect of any action taken or to be taken in

pursuance of any power conferred under the said Act or under the DRT Act.

Section 35 of the SARFAESI Act makes the provisions thereof override other

laws.

16. Supreme Court in Jagdish Singh supra was concerned with a suit for

reliefs (i) of declaration that the defendants therein had no right to mortgage or

attach or auction the property and that the mortgage or auction or sale was not

binding on the plaintiff‟s share; (ii) of partition of the plaintiff‟s share; and (iii)

of permanent injunction restraining the defendants from transferring,

auctioning or interfering with the plaintiff‟s share over the property. It was the

claim of the plaintiff therein also that he was a bona fide purchaser of the

property. It was held (a) that the words „any person‟ used in Section 17 of the

SARFAESI Act interpreted in Satyavati Tondon supra take 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) of the SARFAESI Act and

would take a person such as the plaintiff therein also within its ambit; (b)

therefore irrespective of the question whether the civil suit was maintainable or

not, under the SARFAESI Act itself remedy was provided to such person

claiming interest in the property; (c) the words "in respect of any matter" in

Section 34 of the SARFAESI Act would take in the measures provided under

Section 13(4) thereof; consequently if any person has got any grievance against

„any measures‟ taken by the borrower under Section 13(4), the remedy open to

him is to approach DRT or the Appellate Tribunal and not Civil Court; (d)

Civil Court in such circumstances has no jurisdiction to entertain any suit or

proceedings in respect of those matters which fall under Section 13(4) because

those matters fell within the jurisdiction of DRT and the DRAT; (e) vide

Section 35, SARFAESI Act overrides other laws if they are inconsistent with

the provisions of the Act and which takes in Section 9 CPC as well; (f) civil

court‟s jurisdiction is completely barred, so far as the "measure" taken by a

secured creditor under Section 13(4), against which an aggrieved person has a

right of appeal before the DRT or DRAT to determine as to whether there has

been any illegality in the "measures" taken; and, (g) once the Bank or financial

institution is found to have proceeded only against the secured asset, Civil

Court has no jurisdiction to examine whether the measures taken by the

secured creditor under Section 13(4) were legal or not.

17. That takes me to Ritu Gupta supra and no appeal whereagainst is found

to have been preferred. This Court therein was concerned with a suit for

declaration of title to immovable property and for declaration of the sale deeds

on the basis whereof the banks, defendants therein, were claiming to be secured

creditors as null and void and for permanent injunction restraining the

defendants including the banks from dealing with the property. This Court,

referring to para 51 of Mardia Chemicals Vs. Union of India (2004) 4 SCC

311, to the effect that the jurisdiction of the Civil Court can be invoked to the

limited extent where the action of the secured creditor is alleged to be

fraudulent or the claim of the secured creditor is found to be absurd and

untenable which may not require any probe and reiterated in Nahar Industrial

Enterprises Ltd. supra, held that it could thus not be said that the jurisdiction of

Civil Court could not be invoked in any circumstances. The decision in

Jagdish Singh supra was distinguished by holding that the claim in the plaint

therein did not involve any allegation of fraud by any of the parties. It was

further reasoned that though mortgage by deposit of title deeds is recognized in

law but when the title deeds forming the basis of such mortgage are themselves

questioned as being fraudulent, the position would be different. Finding that

the appellant/plaintiff therein had pleaded fraud and that the defendants Banks

also did not dispute that the sale deeds deposited with them were prima facie

bad in law, the suit was held to be falling within the exceptional category

carved out by the Supreme Court in Mardia Chemicals supra but with a caveat

that it was premature for the Court to express any view as to which of the

parties had been privy to the fraud.

18. Supreme Court in Mardia Chemicals supra, after holding as under in

para 50:-

"A full reading of Section 34 shows that the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or an Appellate Tribunal is empowered to determine in respect of any action taken "or to be taken in pursuance of any power conferred under this Act". 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 any 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 Debt Recovery Tribunal, apart from those matters in which measures have already been taken under sub- section (4) of Section 13."

in paras 51 and 52 went on to hold:-

"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. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely, V. Narasimhachariar AIR at pp.141 and 144, a judgment of the learned Single Judge where it is observed as follows in para 22: (AIR p. 143)

22. The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought: Adams v. Scott.(1859) 7 WR 213, 249. I need not point

out that this restraint on the exercise of the power of sale will be exercised by courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Ghose, Rashbehary: Law of Mortgages, Vol.II 4th Edn., p. 784)."

52. The other decision on which reliance has been placed is A. Batcha Saheb v. Nariman K. Irani, AIR 1955 Madras DB 491 more particularly on paragraph 8."

19. The aforesaid exception carved out by the Supreme Court has led to

persons interested in defeating the actions of the banks and financial

institutions under the SARFAESI Act inundating the civil courts with

pleadings to bring their cases within the exception aforesaid. Unless the civil

courts, before entertaining any such suits, scrutinize the pleadings in the

plaint carefully, the same will result in Section 34 of the SARFAESI Act

being rendered illusory and thereby also frustrating the very objective of

enactment of SARFAESI Act. Supreme Court in Mardia Chemicals supra

carved out an exception, if I may humbly so opine, only in respect of claims

by a mortgagor of the action of the secured creditor to be fraudulent. Though

the Supreme Court chose not to expand as to what facts may qualify for an

action of the mortgagee to be called fraudulent, an inkling thereof is evident

from the reference therein to the two decisions supra of the Madras High

Court. The claim of the mortgagor therein was of the power to sell under

Section 69 of the Transfer of Property Act, 1882 being exercised by the

mortgagee contrary to the terms of the mortgage i.e. a mortgagee seeking to

do what it was not entitled to do under the terms of mortgage. However we

are herein concerned with a claim of the appellant/plaintiff to title to the

mortgaged property adversely to the title professing which the mortgagor

had created the mortgage. Such a claim, in my view would not qualify

within the exception carved out by the Supreme Court and would be within

the jurisdiction of the DRT under Section 17 of the SARFAESI Act and

hence the jurisdiction of the civil court would be barred with respect thereto.