Madras High Court

Dr.Shahjahan vs R.Sowbagyarajan on 19 February, 2021

                                                                                C.M.A.No.913 of 2012


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 19.02.2021

                                                     CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                               C.M.A.No.913 of 2012

                     Dr.Shahjahan                                              ..Appellant
                                                         Vs.

                     1.R.Sowbagyarajan

                     2.G.Velusamy

                     3.Indian Bank,
                       Rep.by its Branch Manager,
                       Udumalpet Branch,
                       Udumalpet, Coimbatore District.

                     4.The Recovery Officer,
                       Debts Recovery Tribunal Cauvery Complex,
                       Trichy Road, Ramanathapuram,
                       Coimbatore.                                             ..Respondents


                     Prayer : Civil Miscellaneous Appeal filed under Section 43 Rule 1 (U)
                     of CPC., against the judgment and decree dated 24.08.2011 made in
                     A.S.No.15 of 2010 on the file of Court of Subordinate Judge, Udumalpet
                     remanding the matter to the trial Court by reversal of judgment and
                     decree made in C.F.R.No.3462 (Unnumbered Plaint) dated 18.09.2020
                     on the file of the Court of District Munsif, Udumalpet.


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https://www.mhc.tn.gov.in/judis/
                                                                               C.M.A.No.913 of 2012


                                    For Appellant    : Mr.J.Abishek

                                    For Respondent : Mr.V.Kalyanaraman
                                                     for M/s.Aiyar & Aalia for R3
                                                     No appearance for R2
                                                     R1-Died steps taken
                                                     R4-Tribunal


                                                 JUDGMENT

The judgment and decree dated 24.08.2011 passed in A.S.No.15

of 2010 reversing the judgment and decree dated 18.09.2010 passed in

C.F.R.No.3462 of 2010 is under challenge in the present Civil

Miscellaneous Appeal.

2.The facts in nutshell are that the mortgage of the subject

property by Mr.Velusamy (Ex.R2) was made in the year 1990 in favour

of Indian Bank / third respondent. In the year 1996, the Indian Bank

filed O.S.No.31 of 1996 for recovery and the said Civil Suit was

transferred and renumbered as T.A.No.921 of 1997 and T.A.No.514 of

2002 after constitution of DRT, Coimbatore. The suit was adjudicated

and it was decreed in favour of Indian Bank in the year 1999 and debt

recovery certificate No.78 of 1999 was issued to recover a sum of

Rs.1,36,45,461/- with interest. Pursuant to the decree, Recovery Officer

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initiates proceeding to recover the amount in R.P.No.30 of 2002. On

17.10.2006, public auction was conducted and the appellant participated

and succeeded in the auction purchase. Consequently, sale certificate

was issued and the same was registered.

3. Thereafter, in the year 2007, Mr.Sowbagyarajan (R-1) filed

I.A.No.630 of 2007 in T.A.No.514 of 2002 under Schedule II Rule 11(1)

of the 'Procedure for Recovery of Tax' claiming as follows:

14.12.1988 – Agreement of sale between Velusamy

(R-2) and Sowbagyarajan (R-1)

04.10.1994 – Sowbagyarajan (R-1) filed O.S.No.408

of 1994 against Velusamy (R-2) for specific relief.

12.01.1995 – Suit decreed ex parte

07.10.1996 – Velusamy (R-2) executed Sale deed in

favour of Sowbagyarajan (R-1)

Therefore, Sowbagyarajan is the owner of the subject property

and the sale certificate issued in favour of the appellant is invalid and

void.

4. On 23.11.2009, I.A.No.630 of 2007 dismissed by the Recovery

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Officer on the grounds that alleged sale took place subsequent to the

mortgage and the decree in the suit will not bind either the Bank or the

auction purchaser. There is no appeal filed against the provisions of

Section 30 of the RDB Act, 1993.

5. On 18.06.2010, unnumbered suit filed by Sowbagyarajan

seeking for a declaration that he is the absolute owner of the subject

property. An application to reject the plaint was filed and the trial Court

passed an order dated 18.09.2010 rejecting the claim. Challenging the

said order, plaintiff Mr.Sowbagyarajan, preferred an Appeal Suit No.15

of 2010 and the same was allowed on the ground that it is open to the

plaintiff to approach Civil Court challenging the said judgment, the

present appeal is filed.

6. The learned counsel appearing on behalf of the appellant

mainly contended that when there is an express bar under the provisions

of the R.D.B.Act, the trial Court rightly considered the provisions of the

Act and rejected the claim. The first Appellate Court erroneously arrived

a conclusion that the plaintiff is entitled to establish the title of the

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property, against which sale certificate was issued. It is not in dispute

that the suit schedule property is the subject matter of mortgage as well

as the recovery proceedings before the D.R.T. Further it is established

that the Debt Recovery Tribunal at Coimbatore, decreed the suit in

favour of the Indian Bank in T.A.No.921 of 1997 and T.A.No.514 of

2002 and thereafter Debt Recovery Certificate No.78 of 1999 was issued

to recover a sum of Rs. 1,36,45,461/- along with interest.

7. All these adjudications were done before the Debt Recovery

Tribunal and subsequently recovery proceedings were initiated by the

Recovery Officer in year 2002, a public auction was conducted

thereafter, filing a suit for declaration is not maintainable and therefore,

the claim by the plaintiff with reference to its alleged purchase from the

original owner regarding the title cannot be entertained on account of

the express bar under Sections 17 and 18 of the Recovery of Debts and

Bankruptcy Act, 1993.

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8. More specifically, Section 18 of the RDB Act stipulates bar of

jurisdiction and the same reads as under:

“Section 18 enumerates that “in relation to the matters specified in Section 17. Therefore, the scope was provided not to entertain any suit in respect of the properties which of the subject matters of the debt Recovery proceedings under the Recovery of Debts and Bankruptcy Act, 1993.” Thus, the express bar under Section 18 regarding the bar of

jurisdiction of Civil Courts are unambiguous and therefore, the Trial

Court is right in rejecting the plaint under Order 7 Rule 11 of C.P.C.

9. Section 9 of C.P.C contemplated, if there is expressed or

implied bar, suit cannot be entertained. In the present case there is an

express bar under Section 18 of the RDB Act, 1993 and therefore, in

respect of property which was mortgaged in Nationalized Bank mainly

Indian Bank subject to debt recovery certificate issued and thereafter

public auction was also conducted and the certificate was issued.

10. This being the process already completed, there is no reason to

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entertain a fresh suit on the basis that the plaintiff purchased the subject

property from its original owner, which was already recovered by the

Debt Recovery Tribunal. If at all any person is aggrieved they have to

file a proper application before the Debts Recovery Tribunal. Thus, the