Delhi High Court
Punjab National Bank vs Subhash Aggarwal & Ors. on 18 November, 2022
Neutral Citation Number 2022/DHC/004936
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: November 03, 2022
Pronounced on: November 18, 2022
+ RFA(COMM) 3/2021 & CM APPL. 5875/2021
PUNJAB NATIONAL BANK .....Appellant
Through: Mr. Hashmat Nabi with Mr. Mohit
Nagpal, Advocates.
Versus
SUBHASH AGGARWAL & ORS ..... Respondents
Through: Mr. Nitin Mittal, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
SAURABH BANERJEE, J.
1. Appellant-bank/original defendant no.1 before the learned Trial Court
has impugned the judgment dated 18.02.20201 whereby its application under
Order VII rule 11 of the Code of Civil Procedure, 19082 in a suit for
declaration instituted by respondent nos. 1, 2 and 3/ original plaintiffs3
against the appellant-bank and Union of India/respondent no.4 has been
rejected and a judgment under Order XII rule 6, CPC has been pronounced
against the appellant bank, in favour of the respondents.
2. Facts before us disclose that one Mr. Ajay Gupta4 availed loan after
mortgaging House No. H-208, Ashok Vihar, Phase-I, Delhi-1100525 with
Hereinafter referred as "Impugned Judgement"
hereinafter referred as "CPC"
hereinafter collectively referred as "respondents"
hereinafter collectively referred as "original borrower"
hereinafter referred as "property"
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Signing Date:18.11.2022
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the appellant-bank. As the said original borrower defaulted in repaying the
loan, appellant-bank initiated proceedings under Section 13 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 20026 and after taking possession, issued notice for
public auction. Respondents, vide e-auction dated 15.07.2016 bought the
property for Rs.6,10,05,000/- and deposited 25% of the bid amount
alongwith the TDS of 1% from 15.07.2016 to 17.08.2016. Sale thereof was
confirmed on 25.07.2016 and the balance sale consideration of
Rs.4,50,00,000/- was to be paid within 15 days of the date of confirmation
of sale i.e., by 10.08.2016.
3. Appellant-bank, Mayur Vihar Branch, after sanctioning loan of
Rs.4,50,00,000/- credited it to respondents on 09.08.2016. Thereafter, a Sale
Certificate was issued in favour of respondents and the possession of the
property was also handed over to them on 11.08.2016 itself. Meanwhile, the
original borrower filed S.A. No. 265/2016 titled as Ajay Gupta vs. PNB
before the Debt Recovery Tribunal-III, Delhi7, wherein, though the
appellant-bank was restrained from creating any third-party interest in the
property vide an order dated 08.09.2016 in the presence of learned counsel
for appellant-bank, the DRT was neither apprised about the auction of
property in favour of respondents nor about the issuance of Sale Certificate
dated 09.08.2016 in their favour.
4. In view thereof, as per appellant-bank, it was unable to proceed for
registration of the Sale Deed of the property in favour of respondents.
However, upon disposal of the aforesaid proceeding before the DRT in its
hereinafter referred as "SARFAESI ACT"
Hereinafter referred as "DRT"
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favour vide order dated 25.05.2017, the appellant-bank revalidated the Sale
Certificate of property on 29.05.2017 and thence also executed a Sale Deed
in favour of respondents on 30.05.2017. Though the respondents deposited
the loan amount of Rs. 4,50,00,000/- from time to time {Rs.2,00,00,000/-
from 12.06.2017 to 11.07.2017 + Rs.30,00,000/- on 04.08.2017 +
Rs.2,20,00,000/- on 06.08.2019}, however, the execution of the said Sale
Deed on 30.05.2017, was done only after an inordinate delay of 10.5
months.
5. Resultantly, respondents instituted a suit before the learned Trial
Court, inter alia, praying for passing of a decree of declaration against the
appellant-bank, claiming that in view of the re-validation of Sale Certificate
done by appellant-bank on 29.05.2017, it was estopped from claiming any
interest from them prior to 30.05.2017 i.e., the date of registration of the title
of the said property in their favour, with requisite compensation, damages
with interest alongwith other reliefs flowing therefrom. Pursuant to receipt
of summons, appellant-bank filed a written statement and an application
under Order VII rule 11, CPC pleading that the said suit was not
maintainable as Civil Court had no jurisdiction in view of Section 34 of the
SARFAESI Act.
6. As a result, learned Trial Court during the course of proceedings, vide
order dated 13.01.2020, sought clarification from the appellant-bank as to
whether any action under SARFAESI Act has been initiated by appellant-
bank against the respondents. In its reply dated 20.01.2020, appellant bank
categorically stated that though no action under SARFAESI Act had yet
been initiated against respondents, however, necessary proceedings under
the SARFAESI Act and Recovery of Debts Due to Banks and Financial
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Institutions Act, 19938 to protect the interest of the appellant-bank would be
initiated.
7. Learned Trial Court vide the Impugned Judgment, rejecting the
application under Order VII rule 11, CPC of appellant-bank, pronounced a
judgment under Order XII rule 6, CPC against the appellant-bank, in favour
of respondents on various grounds, primarily on the ground of non-
maintainability of the suit before a Civil Court under Section 34 of the
SARFAESI Act. As the appellant-bank has not raised any challenge to any
of the other findings, thus, the moot issue for consideration in the present
appeal is only with respect to non-maintainability of the suit before a Civil
Court. Accordingly, this Court is restricting itself to the necessary pleadings
qua Section 34 of the SARFAESI Act only.
8. Learned Trial Court, after hearing learned counsels for both parties
and while referring to the provisions of Section(s) 13(1), (2), (4), 17 and 34
of SARFAESI Act, noted that since the appellant-bank had not initiated any
proceedings under Section 13 of SARFAESI Act against the respondents
and that in such a case of non-initiation, the provisions of Section 13 of
SARFAESI Act were not set into motion, consequently, bar under Section
34 of SARFAESI Act cannot operate and held that even in view of the Sale
Deed dated 20.05.2017 and registration thereof on 30.05.2017, there will be
no bar under Section 34 of SARFAESI Act. Learned Trial Court further
noted that as the respondents had instituted a suit for declaration seeking
appropriate reliefs because of long delay in registration of the Sale Deed in
their favour due to the fault of appellant-bank, such reliefs could only be
hereinafter referred as "RDDBFI Act"
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granted by a Civil Court and the suit of respondents was thus maintainable.
9. Learned Trial Court, negating the applicability of the judgements in
Mardia Chemicals Ltd. v. Union of India9; Agarwal Tracom (P) Ltd. v.
Punjab National Bank10 and Radnik Exports v. Standard Chartered
Bank11 cited by learned counsel for appellant-bank to submit that the bar of
Section 34 of the SARFAESI Act would be applicable even where the
Secured Creditor is likely to take action under the SARFAESI Act, held that
the appellant-bank had not invoked the powers under Section 13(4) of the
SARFAESI Act and the jurisdiction of DRT for the purpose of enforcement
of security interest would only start when the Secured Creditor, i.e., the
appellant-bank herein would call upon the borrower i.e., the respondents in
this case, through a „Notice‟ under Section 13(1) and 13(2) of the
SARFAESI Act asking them to discharge the pending liability. Holding that
DRT does not come into picture, learned Trial Court held that the suit of the
respondents was neither barred under the SARFAESI Act nor under the
RDDBFI Act and thus dismissed the application filed by the appellant-bank
under Order VII rule 11, CPC.
10. Being aggrieved and as stated hereinbefore, relying upon Mardia
Chemicals (supra), Agarwal Tracom (supra) and Radnik Exports (supra)
as well as the reply dated 20.01.2020 wherein it had categorically stated that
though no action under SARFAESI Act had yet been initiated against
respondents but that the appellant-bank would initiate necessary proceedings
under the SARFAESI Act and RDDBFI Act to protect its interest, the
(2004) 4 SCC 311
(2018) 1 SCC 626
2014 SCC OnLine Del 3404
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learned counsel for the appellant-bank has submitted that the Impugned
Judgment is liable to be set aside as the same is against Section 34 of
SARFAESI Act whereby the jurisdiction of a Civil suit is barred even in
respect of an action to be taken in pursuance of any power conferred by or
under the SARFAESI Act or the RDDBFI Act.
11. On the other hand, learned counsel for respondents, supporting the
Impugned Judgment and the reasoning therein, has submitted that the
learned Trial Court is at no fault in entertaining and decreeing the suit under
Order XII rule 6, CPC in view of the fact that the respondents had no other
alternative remedy available but to approach a Civil Court by instituting a
suit for declaration for seeking the reliefs sought therein. Learned counsel
for respondents, during the course of his arguments has taken this Court
through the provisions of Section 13(1), 13(2) and 34 of SARFAESI Act to
submit that as the appellant-bank had never initiated any proceedings against
respondents, they could not have approached the DRT for initiating any
proceedings against the appellant-bank under the SARFAESI Act or the
RDDBFI Act and in any way, there was no occasion for them to do so.
12. This Court has patiently heard the learned counsel for both parties at
considerable length and has expended sufficient time to go through all the
documents on record. After giving note of the factual position and giving
our thoughtful disposition to the legal issue qua maintainability of
proceedings before a Civil Court under the present facts and pondering over
the rights of a party like the appellant-bank herein, prior to proceeding on
the merits of the present dispute, this Court is of the opinion that it is
imperative to look into the relevant provisions of the SARFAESI Act,
reproduced as under, and the interpretation thereof :-
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"13. Enforcement of security interest. -- (1) Notwithstanding
anything contained in section 69 or section 69A of the Transfer of
Property Act, 1882 (4 of 1882), any security interest created in favour
of any secured creditor may be enforced, without the intervention of the
court or tribunal, by such creditor in accordance with the provisions of
this Act.
(2) 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 sub-section (4).
[Provided that--
(i) the requirement of classification of secured debt as non-performing
asset under this sub-section shall not apply to a borrower who has
raised funds through issue of debt securities; and
(ii) in the event of default, the debenture trustee shall be entitled to
enforce security interest in the same manner as provided under this
section with such modifications as may be necessary and in accordance
with the terms and conditions of security documents executed in favour
of the debenture trustee.]
(4) In case the borrower fails to discharge his liability in full within the
period specified in sub-section (2), the secured creditor may take
recourse to one or more of the following measures to recover his
secured debt, namely:--
(a) take possession of the secured assets of the borrower including the
right to transfer by way of lease, assignment, or sale for realising the
secured asset;
(b) take over the management of the business of the borrower including
the right to transfer by way of lease, assignment, or sale for realising
the secured asset:
Provided that the right to transfer by way of lease, assignment or sale
shall be exercised only where the substantial part of the business of the
borrower is held as security for the debt: Provided further that where
the management of whole of the business or part of the business is
severable, the secured creditor shall take over the management of such
business of the borrower which is relatable to the security for the debt;]
(c) appoint any person (hereafter referred to as the manager), to
manage the secured assets the possession of which has been taken over
by the secured creditor;
(d) require at any time by notice in writing, any person who has
acquired any of the secured assets from the borrower and from whom
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any money is due or may become due to the borrower, to pay the
secured creditor, so much of the money as is sufficient to pay the
secured debt.
17. [Application against measures to recover secured debts].--(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, 1 [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 measure had been taken:
[Provided that different fees may be prescribed for making the
application by the borrower and the person other than the borrower.]
34. Civil court not to have jurisdiction.--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
or to be 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 (51 of 1993).
36. Limitation. --No secured creditor shall be entitled to take all or
any of the measures under sub-section (4) of section 13, unless his
claim in respect of the financial asset is made within the period of
limitation prescribed under the Limitation Act, 1963 (36 of 1963)."
13. A perusal of Section 34 of SARFAESI Act reveals that though it is
categorically stated "No Civil Court" shall have jurisdiction to entertain any
proceeding including a suit but the same is applicable only to those matters
wherein any action taken or to be taken falls exclusively within the
jurisdiction of a "Debt Recovery Tribunal or the Appellate Tribunal" and not
for those matters which are beyond the scope thereof. Further, pendency of
such action is not relevant as the said action can be one which can be taken
in future in pursuance of the SARFAESI Act or of the RDDBFI Act.
14. Essentially, for Section 34 of SARFAESI Act to come into play, the
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ball will start rolling only when the party being a Secured Creditor,
primarily Banks such as the appellant-bank herein, initiates appropriate steps
for realization of its security interest against any borrower such as the
respondents herein under Section 13(1) and 13(2) of SARFAESI Act in case
of the borrower failing to realize its liability under the SARFAESI Act and
thereafter such Secured Creditor proceeds further by taking appropriate steps
under Section 13(4) of SARFAESI Act. It is only then that "any person
(including borrower)" against the measures taken by the Secured Creditor
under Section 13(4) of SARFAESI Act may take appropriate steps under
Section 17 of SARFAESI Act, meaning thereby, that, recourse to Section 17
of SARFAESI Act can only be taken once the appropriate steps have already
been taken under Section 13(4) of SARFAESI Act. In case the aforesaid
steps are not followed, the borrower is left remediless and the whole purpose
of SARFAESI Act will be nugatory and redundant, which could never have
been the intention of the legislature.
15. Lastly the words "... ...in respect of any action taken or to be taken...
..." forming a part of Section 34 of SARFAESI Act are in itself granting a
two-fold protection to a party, essentially a bank, one when the action has
already been "taken" signifying that the proceedings have well been initiated
and the ball has been set rolling and another when the action is yet "to be
taken" signifying that the proceedings are yet to be initiated and can be
initiated in future. The word "taken" forming a part of Section 34 of
SARFAESI Act is clear and unambiguous and nothing calls for this Court to
dissect or determine the meaning thereof, however, the words "to be taken"
forming a part of Section 34 of SARFAESI Act are the words which call for
a determination by this Court, as the counsel for the appellant-bank heavily
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relying upon the same, has contended that the right of the appellant-bank to
initiate proceedings against respondents in times ahead is open and it can act
against the respondents at any point of time in the future.
16. We are afraid, this does not, cannot and ought not to be so as the same
will amount to granting impregnable rights to a party like the appellant-bank
who chose to sleep over its rights in a deep slumber, as the provisions of
Section 34 of SARFAESI Act have to be read together with the laws of
limitation available under Section 36 of the SARFAESI Act which mandates
a party like the appellant-bank to initiate an action under the SARFAESI Act
within the prescribed period of time as per the Limitation Act, 1963. The
law of limitation is squarely dependent upon when the cause of action
accrued in favour of the party initiating such action. The period of limitation
begins to run from the inception of the cause of action and no intermittent
actions by a party can extend limitation unless it involves a continuous cause
of action. In the present case, though no cause of action has been spelt out
by either of the parties before this Court, however, the facts and
circumstances of this case disclose that the cause of action to initiate
appropriate proceedings under the SARFAESI Act arose in favour of the
appellant-bank long back in 2016 or so and since then much water has flown
under the bridge. In view thereof and as per the factual position before us,
the reply dated 20.01.2020, of appellant-bank before the learned Trial Court
was itself time barred as it had already lost its chance to file/initiate
appropriate proceedings against respondents before the appropriate forum
within the stipulated period of limitation under Section 36 of SARFAESI
Act. Even if we take that the cause of action arose anytime after 2016,
admittedly as the appellant-bank has till date not filed/initiated any
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proceedings under the SARFAESI Act against the respondents, the
appellant-bank has long missed the bus and has been left stranded.
17. According to us, the words "to be taken" forming a part of Section 34
of SARFAESI Act cannot have an ethereal meaning giving infeasible rights
to a party de hors the law of the land. Section 34 of the SARFAESI Act is
not a stand-alone provision and as stipulated in Section 36 therein, it must be
read along with the provisions contained in the Limitation Act, 1963.
18. In Mardia Chemicals (supra) wherein though the aforesaid words "...
...in respect of any action taken or to be taken... ..." forming a part of
Section 34 of SARFAESI Act were explained, but, in our view, rightly so,
no extension of time for initiating such action to be taken was granted and it
was held as under:-
"50. ...That is to say, the prohibition covers even matters which can
be taken cognizance of by the Debts 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. ..."
19. It is thus clear that recourse to Mardia Chemicals (supra) will be of
no assistance to the learned counsel for appellant-bank as the provisions
mandated in Section 34 of the SARFAESI Act have to be read together with
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the provisions of Section 36 of the SARFAESI Act.
20. None of the parties have argued the aforesaid proposition of limitation
before this Court, and seemingly, the position was the same before the
learned Trial Court as there is neither any recording nor any finding qua the
same in the Impugned Judgment. Be that is it may, this Court cannot
overlook the same as it forms the most vital aspect of any litigation. Legal
plea of limitation is fundamental to all proceedings before a Court of law.
This Court at the appellate stage is free to take up any legal issue which has
a material bearing and which is germane to the issue, and forms the very
essence thereof. In any event, the same is instrumental for the purposes of
adjudication of the present dispute as the suit of the respondents was not
arising out of the either SARFAESI Act or the RDDBFI Act
21. Interestingly, earlier the „Long Title‟ of SARFAESI Act, 2002, as it
then was, read as under: -
"An Act to regulate securitisation and reconstruction of financial
assets and enforcement of security interest and for matters connected
therewith or incidental thereto"
After its substitution by Act 44 of 2016 the same now reads as under:-
"An Act to regulate securitisation and reconstruction of financial
assets and enforcement of security interest and to provide for a
Central database of security interests created on property rights, and
for matters connected therewith or incidental thereto."
22. Thus, in a nutshell, the underlying principle forming the basic layout
and purpose of the introduction of the SARFAESI Act has remained
unchanged since the time of its incorporation. It is abundantly clear from a
bare reading of Section 34 of SARFAESI Act that the same is applicable to
only such cases which are governed by and thus are within the purview of
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the SARFAESI Act or the RDDBFI Act. A perusal of the whole SARFAESI
Act reveals that there is no bar of any kind for a Civil Court to proceed with
such actions which are beyond the domain of the SARFAESI Act of the
RDDBFI Act. The jurisdiction of a Civil Court has not been ousted and has
only been restricted by introduction of the SARFAESI Act. The Hon‟ble
Supreme Court in a recent judgment in Bank of Rajasthan Ltd. vs VCK
Shares & Stock Broking Services Ltd.12, though pertaining to RDDBFI Act,
which contains the para materia provisions as the SARFAESI Act, while
dealing with the transfer of civil proceedings, has held as under:-
"45 We are thus of the view that there is no provision in the RDB
Act by which the remedy of a civil suit by a defendant in a claim by the
bank is ousted, but it is the matter of choice of that defendant. Such
defendant may file a counterclaim, or may be desirous of availing of
the more strenuous procedure established under the Code, and that is
a choice which he takes with the consequences thereof."
"46 ...The Legislature did not, at any stage, make any further
amendment for excluding the jurisdiction of the Civil Court in respect
of a claim of a defendant in such a proceeding being filed along with
the suit. The Legislature in its wisdom has also not considered it
appropriate to bring any amendment to enhance the powers of the
DRT in this respect."
47. We may also refer to the judgment of this Court in Transcore
(supra) opining that the DRT, being a Tribunal and a creature of the
Statute, does not have any inherent power which inheres in Civil
Courts such as Section 151 of the Code."
23. The facts of the present case disclose that the respondents instituted a
suit for declaration qua reliefs arising out of non-issuance of Sale Deed and
for waiver of wrongful imposition of interest by the appellant-bank
alongwith other reliefs dependent thereupon, which reliefs were beyond the
scope of the SARFAESI Act or the RDDBFI Act and resultantly, the only
2022 SCC OnLine SC 1557
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forum, which could/can grant such reliefs, was/is a Civil Court. Admittedly,
though the appellant-bank in its reply dated 20.01.2020 categorically stated
that no action under SARFAESI Act had yet been initiated against
respondents and that it would initiate necessary proceedings under the
SARFAESI Act and RDDBFI Act to protect its interest, till date no
proceedings of any kind have been initiated to that effect. If at all the
appellant-bank had/has any case, certainly it would have initiated
appropriate proceedings under the SARFAESI Act against the respondents
within the allotted time frame in terms of Section 36 of the SARFAESI Act
and not proceed on the basis of a statement. Even otherwise, the Statute
requires a party to follow the rule of law and fall within the basic tenets of
the law of limitation. We are afraid, appellant-bank having lost its chance to
exercise its remedy in taking recourse to the principles of law, cannot be
allowed to urge something which is beyond the scope of Statutes.
24. It is worthy of noting that it is also not in dispute that though the sale
of the property was confirmed on 25.07.2016 and the respondents were to
make the repayment of Rs.4,50,00,000/- within 15 days from the said date of
confirmation of sale meaning thereby, by 10.08.2016, however, as noted
hereinbefore, the respondents made the payments at subsequent stages from
time to time, which admittedly, have been accepted by the appellant-bank
without any protest, demur, objection or claims till now. Not only that, the
appellant-bank itself issued the Sale Certificate and executed the Sale Deed
in favour of respondents.
25. Had appellant-bank any dispute or concern with respondents, it is
highly implausible to believe that the appellant-bank, with all the arsenal
and force at their disposal, would have chosen not to proceed against the
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respondents and instead to proceed with the aforesaid documentation in
favour of respondents and rely upon their statement of initiating proceedings
against them in future. This is besides any logical reasoning. Appellant-bank
cannot be allowed to approbate and reprobate. As the lid is closed and there
is nothing surviving against the respondents, in such a scenario, any party
like the respondents herein, who have neither been declared as defaulters nor
against whom appellant-bank has initiated any action or against whom there
is no scope of initiation of any action left, cannot be made to suffer the
ignominy of eternal wait for no wrong attributable to it. Respondents cannot
be left at the mercy of the appellant-bank, without any clarity and for no
plausible reason. This, surely could never have been the intention of the
legislature.
26. SARFAESI Act is a piece of beneficial legislation brought in to aid
the financial institutions and others related with them or in transactions with
them and thus cannot be seen from a myopic point of view. Interestingly,
this Court finds that though the legislature has brought about various
amendments from time to time by amending the name, amending or
incorporating new Section(s) in the SARFAESI Act but there have been no
changes to Section 34 as contained therein, which has stood the test of time.
Recourse to Section 34 and other provisions of SARFAESI Act should be
taken, following and keeping in mind the principles of natural justice.
27. Taking an overall view of the matter, whence no claim or scope
thereof was left to be adjudicated for appellant-bank to initiate proceedings
under the SARFAESI Act, the respondents could not have been and
certainly cannot be rendered remediless. In any event, the intention of the
legislature could not have been to take away the integral right of respondents
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to take legal recourse by instituting a suit for their claims. Appellant-bank in
such circumstances cannot be allowed to take cover of/for its in-action(s)
under the SARFAESI Act as the same cannot and does not come in the way
of any party like respondents to initiate a suit for seeking remedies before a
Court of law being a Civil Court which are conferred by or under
SARFAESI Act or the RDDBFI Act. Reliance is placed upon Ganga Bai vs.
Vijay Kumar13 wherein it is held as under:-
"15. There is a basis distinction between the right of suit and the
right of appeal. There is an inherent righty in every person o bring a
suit of civil nature and unless the suit is barred by statute one may, at
one's peril, bring suit of one's choice. It is no answer to a suit,
howsoever frivolous to claim, that the law confers no such right to
sue. A suit for its maintainability requires no authority of law and it is
enough that no statute bars the suit."
28. Thus, the present appeal is not maintainable either in law or on facts.
Appellant-bank cannot be permitted to carry dead remains to flog a dead
horse and cannot be perpetually allowed to hunt for something which is non-
existent and which it, in fact, cannot be permitted under law.
29. Taking recourse to the prevalent clear position of law, reliance by
learned counsel for appellant-bank upon Mardia Chemicals (supra); Radnik
Exports (supra) and Agarwal Tracom (supra) is misplaced, as these
judgments are not applicable to the facts of the present case and in view of
the various provisions of the Statute, including the discussion hereinabove
we find no merit in the present appeal.
30. We concur with the decision of the learned Trial Court that the suit of
the respondents before it, being a Civil Court, was maintainable as it is the
solitary forum which could try and entertain, hear, and adjudicate the matter
(1974) 2 SCC 393
Signature Not Verified
Digitally Signed
By:BABLOO SHAH
Signing Date:18.11.2022
15:12:29
Neutral Citation Number 2022/DHC/004936
to arrive at a conclusive decision upon the reliefs claimed by them against
the appellant-bank, as they were outside the purview of the SARFAESI Act
or the RDDBFI Act. The respondents had exercised the right remedy by
taking recourse to filing the suit before the learned Trial Court.
31. In terms thereof, finding no merit, the present appeal, is dismissed
alongwith the pending application(s), if any. The parties are left to bear
their own costs.
(SAURABH BANERJEE)
JUDGE
(SURESH KUMAR KAIT)
JUDGE
NOVEMBER 18, 2022/rr
Signature Not Verified
Digitally Signed
By:BABLOO SHAH
Signing Date:18.11.2022
15:12:29
