Madhya Pradesh High Court
Ashok Kumar C.K. vs Mahesh Bal on 24 January, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 24th OF JANUARY, 2025
SECOND APPEAL No. 968 of 2018
ASHOK KUMAR C.K. AND OTHERS
Versus
MAHESH BAL AND OTHERS
Appearance:
Shri Madhur Pabra - Advocates for the appellants.
ORDER
This case was heard and reserved for orders on admission on
25.11.2024.
2. This Second Appeal has been filed by the appellants/plaintiffs
who have lost in both the courts.
3. In short, the case of the appellants is that he filed a Civil Suit in
the Trial Court for declaration and permanent injunction, stating that the suit
property which is situated in Village Damkheda, Sainath nagar, Shri Ram
Jan Kalyan Grha Nirman Sahkari, Samiti Maryadit, Kolar Road, Tehsil,
Huzoor, District Bhopal has been mortgaged fraudulently by defendant No.1
(Mahesh) to defendant No.2 (UCO Bank), therefore, the proceeding for
auction of the suit property by defendant No.2 -Bank be stayed by granting
relief of declaration of title and permanent injunction.
4. This Civil suit No.114A/2012 was dismissed by judgment and
decree dated 30.04.2014 by the learned 5th Civil Judge, Class I, Bhopal.
Plaintiffs filed an appeal and the same was also dismissed by the learned
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First Appellate Court, i.e. 20th Addl. District Judge, Bhopal in Civil Appeal
No.132A/2014 but with the liberty to plaintiffs that defendant No.1 sold the
suit property to plaintiff concealing the fact that property was mortgaged
with Bank, therefore, They, if inclined, may file criminal proceeding against
the defendant No. 1 and plaintiff can also raise their pleas before the Debts
Recovery Tribunal. Being aggrieved against the decision of First Appellate
Court the plaintiffs moved this Second Appeal.
5. Learned counsel for appellants relied on the judgment of Hon'ble
Division Bench of this Court in First Appeal No.303/2020 (Sagar Singh Vs.
Deepak Damor) delivered on 04.12.2021 wherein the plaintiff had submitted
that by forge and fake power of attorney defendant No.1 had mortgaged the
suit property with the Bank. The suit was dismissed by the trial Court but
Hon'ble Division Bench held that Civil Court had jurisdiction and trial Court
wrongly allowed application under Order 7 Rule 11 CPC filed by defendant
Nos.2 to 4, read with the provision of section 34 of Securitisation and
Reconstruction Of Financial Assets And Enforcement Of Security Interest
Act 2002 and the matter was remanded to the trial Court for deciding on
merit as per law.
6. In the matter before this Court case of the appellant/plaintiff who
lost in both the Court is that he was the bonafied purchaser and fact of
mortgage with the bank was hidden by him (defendant No.1.).
7. Perused the record and considered the arguments. In the case of
Bank of Rajasthan Vs. VCK Share And Stock Broking Service Ltd.) 2022
live law SC 941 order dated 10.11.2022 (Civil Appeal No. 8972-8973/2014,
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Hon'ble Three Judge Bench of Supreme Court in Paras 43, 45 and 56 has in
substance held that "Jurisdiction of Civil Court to try a Civil Suit filed by the
borrower against the Bank or Financial Institution is not ousted by virtue of
scheme of aforesaid Recovery of Debt & Bankruptcy, Act 1993. It is matter
of choice of defendant that he may file counter claim, or he may be desirous
of availing of the more strenuous procedure established under the Code. And
under Order 7 Rule 10 of CPC an independent suit filed by the borrower
against the bank cannot be transferred to be tried along with an application
under the RDB Act. Proceeding under the RDB Act will not be impeded in
any manner by filing of a separate suit before the Civil Court. The Defendant
cannot take recourse to the civil Court to seek a stay on the decision of the
DRT awaiting the verdict of his suit the before the civil Court as it is the
matter of his choice.
8. Regarding the case in hand i.e. Ashok Kumar Vs. Mahesh Bal, it
is seen that all factual situation, have been considered by both the courts.
Nothing arise in this appeal by way of substantial question of law to admit it
for final hearing.
9. In Murtaza Malik v. LIC Housing Finance Ltd. F.A. No. 1871 of
2022, order dated 14.03.20023, this Court was faced with a similar issue:-
"8. The sole question which falls for the consideration of this court is
whether the civil suit between the parties seeking relief of declaration can
only be decided by the civil court or the same can also be adjudicated by the
DRT under the provisions of DRT/ SARFAESI Act. In this regard, first of
all, the governing provisions, i.e., S.13, 17 and 34 of the SARFAESI Act are
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required to be looked into and the same (relevant excerpts only) reads as
under:-"
****
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)."
****
10. In this context, it would also be germane to refer to the decision
rendered by the Supreme Court in the case of SBI v. Allwyn Alloys (P) Ltd.,
(2018) 8 SCC 120, the relevant paras of the same read as under:-
"8 After having considered the rival submissions of the parities, we
have no hesitation in acceding to the argument urged on behalf of the Bank
that the mandate of Section 13 and, in particular, Section 34 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short "the 2002 Act"), clearly bars filing of a
civil suit. For, no civil court can exercise jurisdiction to entertain any suit or
proceeding in respect of any matter which a DRT or DRAT is empowered by
or under this Act to determine and no injunction can be granted by any court
or authority in respect of any action taken or to be taken in pursuance of any
power conferred by or under the Act.
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11. So far as the decision dated 22.01.2020 rendered by the Karnataka
High Court in the case of Sri Raghvan S Vs. Sri. N.B. Rajeev (Regular F.A.
1947/2016) is concerned, the relevant paras of the same read as under:-
"34. Therefore, the prohibition or the bar of jurisdiction of a Civil
Court does not extend to any matter over which the Debts Recovery Tribunal
or an Appellate Authority could adjudicate. In other words, if a person is
aggrieved by any of the measures initiated by a secured creditor under
Section 13 or any other Sections of the SARFAESI Act, in such a situation,
the aggrieved party could approach the Debts Recovery Tribunal or the
Appellate Tribunal under Sections 17 and 18 respectively. Therefore, no suit
could be filed as per Section 9 of CPC to challenge any of the measures
initiated by a secured creditor under the provisions of the SARFAESI Act.
Hence, the Civil Courts' jurisdiction to entertain a suit for the purpose of
declaration of a title of a secured asset or to seek any other relief in respect
of that asset is not barred as Debts Recovery Tribunal or an Appellate
Tribunal cannot grant such reliefs.
12. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact under Section 100 of the Code of Civil Procedure is well
defined by catena of decisions of the Supreme Court. This Court cannot
interfere with the finding of fact until or unless the same is perverse or
contrary to material on record. [See: Narayan Rajendran and Anr. v.
Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul
Majeed and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and
Antoher, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC
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158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288,
Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7
SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4
SCC 264] The concurrent findings of fact recorded by the courts below are
based on meticulous appreciation of evidence on record which by no stretch
of imagination can be said either to be perverse or based on no evidence.
13. In the result, this Court is of the considered opinion that the trial
court and first appellate Court on meticulous appreciation of evidence
available on record, recorded findings which cannot be interfered with. No
substantial question of law arise in this appeal. Hence, it is dismissed at
admission stage itself.
(AVANINDRA KUMAR SINGH)
JUDGE
NRJ
