Minor Jaseena vs Canara Bank
2023 Latest Caselaw 6581 Kant

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                                                         NC: 2023:KHC:33806
                                                       RSA No. 1672 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 19TH DAY OF SEPTEMBER, 2023

                                              BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   REGULAR SECOND APPEAL NO. 1672 OF 2021 (DEC/INJ)

                   BETWEEN:

                   1.    MINOR JASEENA
                         AGED ABOUT 7 YEARS
                   2.    MINOR JANNATH
                         AGED ABOUT 3 YEARS
                         BOTH ARE CHILDREN OF
                         MOHAMMED JAMAL AND
                         REPRESENTED BY THEIR NEXT
                         FRIEND AND GUARDIAN MOTHER
                         MRS. HASEENA BANU
                         W/O. MOHAMMED JAMAL
                         AGED ABOUT 28 YEARS
                         BOTH ARE R/AT NO.3-182/2,
                         BAJAL KALLAKATTE,
Digitally signed         NEAR GOVT. SCHOOL,
by SHARANYA T            BAJAL POST AND VILLAGE
Location: HIGH
COURT OF                 MANGALURU TALUK
KARNATAKA                DAKSHINA KANANDA DISTRICT-575 027.
                                                              ...APPELLANTS
                               (BY SRI RAJASHEKAR S., ADVOCATE)
                   AND:

                   1.    CANARA BANK
                         A NATIONALIZED BANK
                         FISHERIES COLLEGE CAMPUS BRANCH
                         GORIGUDDA, MANGALURU TALUK
                         DAKSHINA KANNADA DISTRICT-575 002
                         REP. BY ITS BRANCH MANAGER.
                                                              ...RESPONDENT
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                                                   NC: 2023:KHC:33806
                                                 RSA No. 1672 of 2021




     THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 11.01.2021 PASSED IN
R.A.NO.246/2019 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, MANGALURU, D.K,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 02.11.2019 PASSED ON I.A.NO.IV IN
O.S.NO.1009/2019 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, MANGALURU, D.K. ALLOWING I.A.NO.IV FILED UNDER
ORDER VII, RULE 11(a)(d) R/W. SEC.17(1) AND 34 OF
SARFAESI ACT, 2002 FOR REJECTION OF PLAINT.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellants-plaintiffs.

2. The respondent-defendant has filed an application

in I.A.No.IV under Order 7, Rule 11(a) and (d) of C.P.C. read

with Section 17(1) and 34 of SARFAESI Act to reject the plaint

of the plaintiffs as the Court has no jurisdiction to try the suit of

the plaintiffs. It is also the contention of the defendant that

suit is virtually got filed by none other than the father of the

plaintiffs namely, Mr. Mohammad Jamal, who has availed an

order draft loan facility from the defendant-bank and

committed default in paying the loan dues to the defendant-

bank. The defendant-bank has initiated legal action against the

borrower of loan Mr. Mohammad Jamal and secured assets

NC: 2023:KHC:33806 RSA No. 1672 of 2021

namely, plaint schedule property as per SARFAESI Act. The

defendant-Bank has also initiated legal action against the said

borrower before Debt Recovery Tribunal, Bangalore in addition

to possession notice issued to the borrower pertaining to plaint

schedule property. If the plaintiffs are aggrieved by issuance of

possession notice by the defendant pertaining to plaint

schedule property, the remedy for them lies only before the

Debt Recovery Tribunal at Bangalore and the Civil Court has no

jurisdiction to entertain any suit or proceedings in respect of

any matter which a Debt Recovery Tribunal or the Appellate

Tribunal is empowered by the SARFAESI Act. Hence, the plaint

is liable to be rejected.

3. On the other hand, the appellants-plaintiffs herein

have filed the objection statement contending that the entire

allegations made in the plaint are not barred under the

SARFAESI Act since, the suit is filed by the minor plaintiffs, who

are not the borrowers and the subject matter of the property is

not the secured assets It is also contended that the defendant

is not the secure creditor and the SARFAESI Act does not apply

to the facts of the case.

NC: 2023:KHC:33806 RSA No. 1672 of 2021

4. The Trial Court, having considered the grounds

urged in the application and also the nature of relief sought in

O.S.No.1009/2019, discussed with regard to Section 17 of the

SARFAESI Act and also considered the judgment of the Apex

Court in AUTHORIZED OFFICER, STATE BANK OF INDIA

VS. ALLWYN ALLOYS PVT. LTD. reported in AIR 2018 (SC)

2721 and comes to the conclusion that, if the property is

mortgaged by the father, the suit is not maintainable under

Section 34 of the SARFAESI Act and allowed the application and

rejected the plaint.

5. Being aggrieved by the said order, an appeal is filed

before the First Appellate Court in R.A.No.246/2019 and the

First Appellate Court also, on reconsideration of the grounds

urged in the application as well as the appeal memo,

formulated the point whether the Trial Court committed an

error in allowing the application filed under Order 7, Rule 11(a)

and (d) of C.P.C. read with Section 17(1) and 34 of SARFAESI

Act, rejecting the plaint on the ground that it has no jurisdiction

to entertain the suit. The First Appellate Court also, on re-

appreciation of material available on record, the grounds urged

in the application, the objection statement and also the order

NC: 2023:KHC:33806 RSA No. 1672 of 2021

passed by the Trial Court, comes to the conclusion that the

Trial Court has no jurisdiction to entertain the suit and the

contention of the appellants-plaintiffs was not accepted.

Hence, the present appeal is filed before this Court.

6. The main contention of the learned counsel for the

appellants-plaintiffs before this Court is that both the Courts

have committed an error in entertaining the application filed

under Order 7, Rule 11(a) and (d) of C.P.C. read with Section

17(1) and 34 of SARFAESI Act and the very approach of both

the Courts is erroneous and the Courts ought not to have

invoked Section 34 of SARFAESI Act when the suit schedule

property was not the secured asset and the defendant is not a

secured creditor and the plaintiffs are not the borrowers.

7. Having heard the learned counsel for the

appellants-plaintiffs and also on perusal of the material

available on record, it is not in dispute that the father had

availed loan from the bank by mortgaging the property.

Though the appellants contends that the said property is

different, the said contention cannot be accepted and also with

regard to the fact that the said property is different, no

NC: 2023:KHC:33806 RSA No. 1672 of 2021

documentary evidence is produced. When such being the case

and when there is a bar under Section 34 of SARFAESI Act,

both the Courts have taken note of the fact the suit schedule

property is the secured asset and the plaintiffs, who are the

minors are not the borrowers and they are represented by their

mother, excluding the father and the conduct of the parties was

also taken note by the Trial Court and the First Appellate Court

and when there is specific bar under Section 34 of SARFAESI

Act, I do not find any error committed by the Trial Court in

entertaining the application filed under Order 7, Rule 11(a) and

(d) of C.P.C. read with Section 17(1) and 34 of SARFAESI Act.

Hence, no grounds are made out to admit the appeal and frame

any substantial question of law.

Accordingly, the appeal is dismissed. In view of dismissal

of appeal, I.A.No.1/2021 does not survive for consideration and

the same stands disposed of.

Sd/-

JUDGE

ST