Madhya Pradesh High Court
Dr. Aanandchand Bansal vs Punjab National Bank on 29 March, 2022
Author: Sunita Yadav
-( 1 )- M.P. No. 4804/2021
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
MISCELLANEOUS PETITION No. 4804 of 2021
Between:-
DR. ANANDCHANDRA BANSAL S/O
LATE GANESH BANSAL, AGED ABOUT
65 YEARS, R/O NAWAB KOTHI,
KAMPOO, NAYA BAZAR, LASHKAR
GWALIOR
.... PETITIONER
(BY SHRI KAMAL MANGAL, ADVOCATE)
AND
1. PUNJAB NATIONAL BANK
THROUGH BRANCH MANAGER,
OFFICE NAYA BAZAR, LASHKAR
GWALIOR
2. GIRISHCHANDRA S/O LATE
GANESHCHANDRA BANSAL, AGED
ABOUT 67 YEARS, R/O 97, BALWANT
NAGAR, THATIPUR MURAR
GWALIOR
3. ALOKCHANDRA BANSAL S/O LATE
GANESH BANSAL, AGED ABOUT 61
YEARS, R/O SINDH BIHAN, 62 NADI
GATE, LASHKAR GWALIOR
4. SUNIL BANSAL S/O LATE GANESH
BANSAL, AGED ABOUT 63 YEARS, R/O
GARDEN HOMES, OHADPUR, CITY
CENTRE GWALIOR
-( 2 )- M.P. No. 4804/2021
5. KAMALKRISHNA BANSAL S/O LATE
GANESHCHANDRA BANSAL, AGED
ABOUT 57 YEARS, R/O KALARI VALI
GALI, LOHIYA BAZAR, LASHKAR,
GWALIOR.
....RESPONDENTS
(BY SHRI HARSHAVARDHAN TOPRE, ADVOCATE
FOR RESPONDENT NO.1)
Reserved on : 08.03.2022
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Whether approved for reporting :
ORDER
(Passed on 29th March, 2022)
Present petition is filed assailing the order dated
17/12/2021 passed in Miscellaneous Civil Appeal
No.154/2021 by Seventh Additional District Judge, Gwalior,
affirming the order dated 14/12/2021 passed by Fourth Civil
Judge, Class I, Gwalior, whereby the application under Order
39 Rule 1 and 2 read with Section 151 of C.P.C. filed by the
petitioner/ plaintiff has been rejected.
2. The facts in brief to decide the present petition are that a
suit for declaration and permanent injunction was filed by the
-( 3 )- M.P. No. 4804/2021
petitioner/ plaintiff before the Fourth Civil Judge, Class I,
Gwalior which was registered as Civil Suit No.672/2020. In
the said civil suit, it was pleaded by the plaintiff that property
in dispute bearing Municipal No.1739147, Ward No.58, Plot
No.46, which is part of Survey Nos. 225, 194, 193, 221, 224,
240 and 241, situated at Balwant Nagar, Morar, Village
Thatipur, District Gwalior, was purchased by Late
Ganeshchandra Bansal, who is the father of petitioner/
plaintiff and respondents No. 2 to 5/ defendants No. 1 to 4.
Defendant No. 1 Girishchandra by a forged Will got the
mutation done in respect to the property in dispute in his
favour. Thereafter, defendant No. 1 got the loan sanctioned in
his favour by respondent No. 1/ defendant No. 5 - Punjab
National Bank. Respondent No. 1 - bank sanctioned the loan
amount to the tune of Rs.30,00,000/- to respondent No. 2/
defendant No. 1 - Girishchandra for starting a business in the
name of M/s Shri Govinddev Enterprises by mortgaging the
original Will dated 08/12/2000. Later, loan account of
respondent No. 2/ defendant No. 1 was declared N.P.A.
because of default in non-payment. Symbolic possession of
the secure asset/ mortgaged property (suit property) was taken
-( 4 )- M.P. No. 4804/2021
by respondent No. 1 bank under the provisions of Section 13
(4) of SARFAESI Act, 2002. Petitioner/ plaintiff filed an
application before the trial Court under Order 39 Rule 1 and 2
of C.P.C. for temporary injunction to stop the proceedings
initiated by respondent No. 1/ defendant No. 5 - bank, which
was dismissed by the trial Court. Against the order of the trial
Court, petitioner/ plaintiff moved the appeal which was also
dismissed vide order impugned dated 17/12/2021.
3. Learned counsel for the petitioner has argued that the
order impugned is against the settled principle of law, perverse
and bad in law. He has further argued that the Courts below
have not considered that for grant of temporary injunction,
only three grounds have to be taken into consideration. They
are; (i) prima facie case, (ii) balance of convenience, and (iii)
irreparable injury, and all the three grounds are proved in
favour of the petitioner/ plaintiff. The trial Court has ignored
the fact that the suit was found to be maintainable, therefore,
provisions of Section 34 of SARFAESI Act do not attract.
Learned counsel for the petitioner has placed reliance upon the
judgment passed in the case of State Bank of India vs.
Pramod Deshmukh and Anr., [(2011) AIR (Bombay) 144].
-( 5 )- M.P. No. 4804/2021
4. On the other hand, learned counsel for the bank argued
that the order impugned is in accordance with law. The
jurisdiction of Civil Court to grant injunction against any
action taken or to be taken under the SARFAESI Act or
measures taken or to be taken under Section 13 (4) of the
SARFAESI Act is specifically and precisely barred under
Section 34 of SARFAESI Act. The petitioner has remedy of
appeal before the recovery tribunal under the SARFAESI Act.
Petitioner does not have prima facie case, balance of
convenience and irreparable loss against the bank as the
proceedings of recovery of loan amount has been lawfully
initiated under the provisions of SARFAESI Act.
5. Heard learned counsel for the rival parties and perused
the available record.
6. Learned counsel for the petitioner has relied upon the
case of State Bank of India (supra) and argued that the
Courts below have erred in dismissing the application of the
petitioner on the ground that the jurisdiction of the Civil Court
is barred under the provisions of Section 34 of SARFAESI Act
but the above argument of learned counsel for the petitioner
has no weight because the Bombay High Court in the
-( 6 )- M.P. No. 4804/2021
aforesaid matter has held that the jurisdiction of Civil Court is
barred to the extent of matter the Debt Recovery Tribunal or
the Appellate Tribunal is empowered to determine. Therefore,
the cited case law does not support the contention of the
petitioner.
7. In the case of Manoj Kumar Jain and Anr. vs.
Corporation Bank and Anr., [2008 (1) MPLJ 619], it is held
that Section 34 of SARFAESI 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 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". It was further held that Debt
Recovery Tribunal was empowered to deal with matter under
Section 17 of SARFAESI Act.
8. In the case of Jagdish Singh vs. Heeralal and Ors.,
[2014 (1) SCC 479], the Apex Court has held that "in respect
of any matter" referred to in Section 34 of SARFAESI Act
-( 7 )- M.P. No. 4804/2021
would take in measures provided under Section 13 (4) of
SARFAESI Act. Consequently, any person aggrieved against
any "measures" can approach D.R.T. or Appellate Tribunal
and not Civil Court. Civil Court has no jurisdiction in said
matters. Besides SARFAESI Act overrides other laws in terms
of Section 35, if they are inconsistent with provisions of the
SARFAESI Act, which takes in Section 9 of C.P.C. as well.
9. In the case of Kanaiyalal Lalchand Sachdev and Ors.
vs. State of Maharashtra and Ors., [Criminal Appeal No.
338 -340 of 2011 decided on 07/2/2011], the Apex Court has
held that it is well settled that ordinarily, relief under Articles
226/227 of Constitution of India is not available if an
efficacious alternative remedy is available to any aggrieved
person.
10. In view of the above discussion, the order impugned by
which the Courts below refused to grant interim injunction to
the petitioner cannot be flawed warranting interference by this
Court.
11. Accordingly present petition being devoid of any merit
is hereby dismissed.
ALOK (SUNITA YADAV)
KUMAR
2022.03.31 AKS JUDGE
16:21:10
+05'30'
11.0.23
