Idbi Bank vs Minor Sri Hari Aadharsh
2021 Latest Caselaw 14757 Mad

Citation : 2021 Latest Caselaw 14757 Mad
Judgement Date : 23 July, 2021

Madras High Court

Idbi Bank vs Minor Sri Hari Aadharsh on 23 July, 2021

                                                                           C.R.P.(PD) No.3315 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 23.07.2021

                                                     CORAM:

                               THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                            C.R.P.(PD) No.3315 of 2018
                                            and C.M.P.No.18803 of 2018


                     IDBI Bank,
                     Salem Branch,
                     Rep. by its Manager
                     Mr.V.Gopalakrishnan,
                     No.3, K.T.Tower, Omalur Main Road,
                     Four Road, Salem Town.                                       ... Petitioner
                                                     Vs

                     1.Minor Sri Hari Aadharsh
                     2.Minor Geetha Sri
                     3.K.Venkatraman
                     4.Dineshkumar
                     5.Suganya
                     6.Prabavathi
                     7.Gayathri
                     (Respondents 1 and 2 rep. by their next friend grandmother T.Gandhimathi)
                                                                                 ... Respondents

                     Prayer: Civil Revision Petition filed under Article 227 of the Constitution

                     of India, against the fair and decreetal order dated 12.06.2018 made in

                     I.A.No.534 of 2017 in O.S.No.115 of 2017 on the file of the Principal

                     District Judge, Namakkal.
                     1/8

https://www.mhc.tn.gov.in/judis/
                                                                                  C.R.P.(PD) No.3315 of 2018

                                         For Petitioner  : Mr.Shivakumar and Suresh
                                         For Respondents : No Appearance

                                                           **********
                                                           ORDER

This Civil Revision Petition is filed against the fair and decreetal

order 12.06.2018 made in I.A.No.534 of 2017 in O.S.No.115 of 2017 on the

file of the Principal District Judge, Namakkal, thereby dismissing the

application for rejection of plaint.

2. The petitioner herein is the 6th defendant and the respondents 1

and 2 herein are the plaintiffs in the said suit. The respondents 1 and 2

herein filed the said suit for partition in respect of the suit property.

3. The case of the respondents 1 and 2 herein is that the suit property

is the ancestral property of the first respondent herein and also the property

purchased by the third respondent herein in the name of the 6th respondent

herein out of the income derived from the ancestral property. Therefore, the

respondents 1 and 2 herein are entitled to have 2/9 share in the property.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD) No.3315 of 2018

4. The petitioner herein filed an application in I.A.No.534 of 2017 for

rejection of plaint on the ground that the respondents 3 to 7 herein have

mortgaged the suit property of the title deeds with the petitioner's bank and

availed loan to the tune of Rs.29.54 crores on 15.11.2016. Thereafter, they

failed to repay the dues and hence the loan was classified as Non

Performing Asset (NPA). Therefore, the petitioner herein issued a notice

under Section 13(2) of the SARFAESI Act on 30.12.2016. Inspite of the

notice, the respondents 3 to 7 herein failed to pay any dues. Therefore, the

petitioner herein issued notice for possession under Section 13(4) of

SARFAESI Act on 26.04.2017.

5. Challenging the same, the respondents 3 to 7 herein filed an

application before the Debt Recovery Tribunal, Madurai in I.A.No.1131 of

2017 in S.A.No.217 of 2017 to stay further proceedings of the petitioner's

bank with regard to the notice issued under Section 13(4) of SARFAESI

Act. The Debt Recovery Tribunal passed a conditional Order and thereby

directed the respondents 3 to 7 to pay a sum of Rs.1,79,25,000/-. They did

not comply the order passed by the Debt Recovery Tribunal.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD) No.3315 of 2018

6. Therefore, the symbolic possession of the suit property was taken

by the petitioner's bank under Section 13(4) of SARFAESI Act. While

being so, the respondents 1 and 2 herein colluded with the other respondents

herein and filed the present impugned suit for partition before the Principal

District Judge, Namakkal. They are none other than the third respondent's

daughter and son. The petitioner's bank initiated proceedings under

SARFAESI Act and the Civil Court has no jurisdiction to entertain any suit

as per Section 34 of the SARFAESI Act. Therefore, the suit cannot be

sustained further.

7. It is also seen that while pending this Civil Revision Petition, the

respondents 1 and 2 herein also filed a petition challenging the SARFAESI

proceedings in S.A.SR.No.2324 of 2019 before the Debt Recovery Tribunal,

Coimbatore and the same was dismissed on 03.04.2019. Aggrieved by the

same, they preferred an appeal before the Debt Recovery Tribunal in AIR

(SA) 192 / 2019 and the same was also dismissed on 06.08.2019. Therefore,

the present suit is nothing but clear abuse of process of law and preventing

the petitioner's bank to proceed as against the respondents 3, 4, 6 and 7

herein under the SARFAESI Act.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD) No.3315 of 2018

8. A similar and identical issue was dealt by the Division Bench of

the Hon'ble Supreme Court of India with regard to the jurisdiction of the

Civil Court to try the suit filed by the borrower against the Bank or

Financial Institution for recovery of debt under SARFAESI Act. Now the

matter has been referred before the Larger Bench. However, the learned

counsel relied upon a Judgment in the case in Authorised Officer, State

Bank of India Vs. Allwyn Alloys Private Limited and others reported in

2018 (8) SCC 120, wherein it is observed as follows:

“After having considered the rival submissions of the parties, 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”.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD) No.3315 of 2018

Following the same, this Court is of the view that no Civil Court can

exercise jurisdiction to entertain any suit or proceedings in respect of any

matter, which a DRT or DRAT is empowered by or under the SARFAESI

Act to determine and Section 34 of the SARFAESI Act clearly bars filing of

a civil suit. Accordingly, the judgment referred to above squarely applies to

the present case.

9. In view of the above, the Order dated 12.06.2018 made in

I.A.No.534 of 2017 in O.S.No.115 of 2017 on the file of the Principal

District Judge, Namakkal is set aside. The plaint in O.S.No.115 of 2017 is

hereby rejected.

10. Accordingly, this Civil Revision Petition is allowed. No order as