Madras High Court
M/S. Kotak Mahindra Bank Limited vs T.K.Karthikeyan on 7 July, 2023
C.R.P.No.1551 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.07.2023
CORAM:
THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.1551 of 2021
1. M/s. Kotak Mahindra Bank Limited
rep. By the Authorised Officer,
7th floor, Plot No.7, Sector 125,
Near Dell Complex, Noida – 201 313
2. M/s Kotak Mahindra Bank Limited,
rep. By its Authorised Officer,
No.185, 2nd Floor, Annasalai,
Mount Road, Chennai – 600 006 ... Petitioners
Vs.
1. T.K.Karthikeyan
2. Shanthi Karthikeyan
3. Future Capital Finance Service Limited
rep. By its State Risk Head having registered
office at FCH House,
Peninsula Corporate Park,
Ganpatrao Kadam Marg,
Lower Parle, Mumbai – 400 013
4. Authorised Officer,
Capital First Limited,
Unit No.401-407, 4th Floor,
A Wing Technopolis Knowledge Park,
Chakala Road, Opp. Holy Family School,
Andheri, Mumbai – 400 093 ... Respondents
Civil Revision Petition filed under Article 227 Constitution of India to
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C.R.P.No.1551 of 2021
set aside the petition and order passed in I.A.No.4 of 2021 in O.S.No.78 of
2021 dated 12.03.2021 and to terminate the O.S.No.78 of 2021 on the file
of learned Principal Judge, Tiruvallur.
For Petitioner : Mr. V.Balasubramani
For Respondents : Mr.B.Jeyash B.Dolia Sr.Counsel for
Mr.K.Pattabhi
ORDER
The present Civil Revision Petition is filed as against the order dated
12-3 2021 made in I.A No 4 of 2021 in O.S. No 78 of 2021 and to terminate
the O.S. No. 78 of 2021 on the file of the Principal Judge. Thiruvallur.
2. The brief facts of the case are as follows:-
(i) The 1st and 2nd Respondents had obtained loan from M/s
Capital First Limited, formerly known as Future Capital Holding Limited/ 3 rd
and 4th respondents for a sum of Rs.89,82,000/- (Rupees Eighty Nine
Lakhs and Eighty Two Thousand only) upon terms and conditions
mentioned in the agreement dated 23.12.2010.
(ii) As per the said agreement, the said loan facility was repayable by
the respondents 1 and 2 in 180 equated monthly installments to the tune of
Rs. 1,16,615/-(Rupees One Lakh Sixteen Thousand Six Hundred and
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Fifteen only). The respondents 1 and 2 started to commit default in
repayment of amount.
(iii) Pursuant to the default in making the repayment of amount,
Capital First Limited has invoked the Arbitration proceedings and an award
was passed on 29.01.2015 directing the respondents 1 and 2 to pay a sum
of Rs.93,35,927.62/- together with interest at the rate of 15.25% per annum
from 09.10.2014. Despite the receipt of award, the respondents 1 and 2
have not paid the amount. Consequently, their loan account was classified
as Non Performing Assets (NPA) by Capital First Limited on 31.01.2016.
The said Capital First Limited, vide Deed of Assignment dated 08.07.2016
inter alia sold, transferred, assigned in favour of the petitioners.
(iv) Thereafter the petitioners issued notice to the respondents 1 and
2 on 06.02.2017 under Section 13 (2) of the SARFAESI ACT 2002 and
called upon them to pay an amount of Rs.1,18,34,766/- (Rupees One Crore
Eighteen Lakhs Thirty Four Thousand Seven Hundred and Sixty Six only)
as on 06.02.2017 with interest at 15.25% per annum from 07.02.2017 until
payment in full within 60 days from the date of receipt of said notice. Since
the said amount was not paid within the stipulated period, the petitioners
had taken symbolic possession of the property in excise of power conferred
on them under Section 13 (4) of SARFAESI ACT read with Rules 8 and 9
on 24.04.2017 and issued a Sale Notice dated 19.02.2021.
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(v) Consequent to the same, the respondents 1 and 2 filed a suit in
O.S.No.78 of 2021 before the District Court, Thiruvallur and ad-interim
exparte injunction was granted against the petitioners till 31.03.2021 in
I.A.No.4 of 2021 filed by them. The petitioners has filed the present petition
to set aside the order of the trial court and also to strike off the plaint.
3. The learned counsel for the petitioners submits that the order
passed by the Court below dated 12.03.2021 in I.A.No.4 of 2021 is bad in
law and the same is liable to be quashed and set aside in view of the fact
that the acts of the petitioner is covered under SARFAESI Act, 2002, which
would be decided by the Recovery Tribunal or Appellate Tribunal not by the
Civil Court. Also, the court below failed to appreciate the fact that the 1 st
and 2nd respondents are defaulting borrowers, who have succeeded in
hindering and stalling the recovery process of the petitioners, just prior to
the auction sale scheduled on 25.03.02021.
4. Besides the above, the learned counsel for the petitioners would
rely upon the order passed by the Hon'ble Supreme Court in Harshad
Goverdhan Sondagar Vs. International Assets Reconstruction Co., Ltd., and
Ors., reported in 2014 (6) SCC 1, to substantiate that no civil court shall
have jurisdiction to entertain any case, where action has been taken under
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SARFAESI Act, thereby pleaded to set aside the order passed by the court
below in I.A.No.4 of 2021 in O.S.No.78 of 2021.
5. Per contra, the learned senior counsel appearing for the
respondents submitted that the respondents 1 and 2 have neither
participated in the arbitration proceedings nor engaged any counsel and
hence the entire proceedings are void. Further, the suit is of civil in nature
and according to Section 9 of Civil Procedure Code, there is no bar under
Section 34 of SARFAESI Act and the Civil Court has jurisdiction to try any
case of civil nature.
6. Also, the learned senior counsel for the respondents relied on the
Judgment of the Hon'ble Supreme Court reported in AIR 1969 SC 78
[Dulabahi Vs. State of Madhya Pradesh] and submitted that if the
provisions of a particular act have not been complied with or the statutory
tribunal has not acted in conformity with the judicial procedure then, bar
against the civil court cannot sustain. Further, relied on the Judgment of the
Hon'ble Division Bench reported in 2004 (2) CTC 759 [V.Tulasi Vs.Indian
Overseas Bank] to state “that the jurisdiction of the civil court can be
invoked only when the action of a secured creditor is alleged to be
fraudulent or his claim is so absurd or untenable.”
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7. That apart, the learned senior counsel for the respondents
submitted that the transaction in this case is a mortgage transaction and the
mortgage right being a right in rem cannot be probed through arbitration, as
per Booz Allen and Hamilton Inc., V. SBI Home Finance and others,
reported in 2011 (5) SCC 532 and according to Sukanya Holdings Vs.
Jayesh H Pandya reported in (2003 5 SCC 531) page 31, Mortgage
transactions cannot split in arbitration proceedings.
8. Lastly, the learned senior counsel for the respondents contends
that as per Central Government, Notification S.O.2641 dated 05.08.2016 in
order to invoke Sections 13 to 19 of the SARFAESI Act, the principal debt
amount should be One Crore and above but in this case, the amount
pertains to Rs.89 Lakhs only and as per Section 26D of SARFAESI Act, the
privilege of invoking provisions of the Act especially Sections 13 to 19 is
given only to those who register the transaction in a central registry /
CERSAI, however, as per CERSAI report, the transaction is not registered
in the central registry and hence the invocation of the SARFAESI Act by the
petitioners against the respondents is not valid as per law.
9. Heard learned counsel on either side and perused the documents
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placed on record.
10. On perusing the documents and upon hearing the arguments of
learned Counsels of either parties, the following two issues arises for
consideration before this Court:
(i)Whether the order in I.A. No. 4 of 2021 in OS. No. 78 of 2021,
dated 12-3-2021 passed by the Principal District Judge, Thiruvallur is liable
to be set aside or not .
(ii) Whether to terminate O.S. No. 78 of 2021 on the ground of Bar of
Jurisdiction of Civil Court to entertain suits in SARFAESI proceedings.
11. It is seen from the records available that the 1st and 2nd
respondents have availed loan from the 3rd respondent and thereafter, the
3rd respondent, by way of Deed of Assignment dated 08.07.2016, interalia,
transferred / assigned in favour of the petitioners, the said fact is not
disputed by either parties. However, this Court is not inclined to go in to the
aspects of whether the arbitration award is sustainable or not, which is not
the purview of the present civil revision petition. Further, the proceedings
initiated by the petitioners herein under the SARFAESI Act, does not have
any binding on the arbitral award and there is no necessity to deal with the
same and hence the arguments putforth by the respondents counsel is
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rejected on that score.
12. As far as Issue No.(i), viz., whether the order passed in I.A. No. 4
of 2021 in O.S.No.78 of 2021, dated 12-03-2021 passed by the learned
Principal District Judge, Thiruvallur is liable to be set aside or not, is
concerned, it is to be noted that according to the respondents 1 and 2 /
plaintiffs, they have entered into loan agreement with the FUTURE
CAPITAL, which is an Non-Banking Financial Company (NBFC), the NBFC
had assigned the loan to the petitioners which is illegal and not binding on
them. However, as per clause 11(b) of the Home Equity Loan Agreement
dated 07.02.2011, the lender has right to transfer or assign the mortgage
over the property in favour of any bank. As per Notification of Reserve Bank
of India in RBI/2005-06/54 DBOD.NO.BP. BC. 16 / 21.04.048/ 2005-06
dated 13 July 2005, RBI had clearly, permitted assignment of debt with or
without security in the course of banking activity and, therefore, such an
assignment was legally permissible and, therefore, enforceable. Hence it is
clear that the assignment was a permitted banking activity in law. That
apart, the respondents/plaintiffs contention is that as per RBI notification, an
Non banking financial Corporation can initiate SARFAESI Proceedings only
if the Principal amount is above Rs.1 Crore, but in the present case, the
loan has been assigned to a bank, which is a "secured creditor" within the
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meaning of section 2(zd) of the SARFAESI Act, which is entitled to initiate
SARFAESI proceedings against a debtor.
13. In this connection, it is necessary to rely upon the Judgment of
the Hon'ble Division Bench of Bombay High Court in Poorti Rent a Car
and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors
[2022 LiveLaw (Bom) 95], wherein it is held that a Bank, being a "secured
creditor" within the meaning of section 2(zd) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (SARFAESI Act), is entitled to initiate proceedings against a
debtor under Section 13 thereof, notwithstanding the fact that the assignor
of debt portfolio was not a "financial institution" at the material time.
" …13. A debt is a sum of money that is owed or due.
Once a loan agreement is entered by and between a borrower
(customer) and a lender (bank/financial institution) and
mortgage is created, an outstanding in the account of the
borrower is a debt due and payable by the borrower to the
lender. Such debt is an asset in the hands of the lender. As the
owner of the debt, the lender can always transfer its asset
unless a law or the loan agreement prohibits the same. Such
transfer in no manner affects any right or interest of the
borrower. Here, the respondent no.2 assigned its rights under a
contract and its own asset, namely, the debt, to the respondent
no.1. It is not the case of the petitioners that in so assigning,
their rights as borrowers flowing from the loan agreement has in
any manner been affected or even the asset affected. It has
also not been shown by the petitioners that the rights that the
respondent no.2 assigned to the respondent no.1 were
incapable of assignment, either under any law or under an
agreement between the petitioners and the respondent no.2.
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Law is well-settled that a claim to a simple debt is assignable
even if the debtor has refused to pay, and that the practice of
assigning or ‘selling’ debts to debt collecting agencies and credit
factors could hardly be carried on if the law were otherwise.
14. Be that as it may, bearing the above principles as well as all
other statutory provisions in mind, it needs examination as to
whether assignment of the debt by the respondent no.2 to the
respondent no.1 could preclude the former from taking
recourse to Chapter III of the SARFAESI Act....
22.We do not find the challenge of the petitioners to be of any
substance at all. If indeed the provisions of the SARFAESI Act
can be applied even in respect of loan agreements entered into
before such enactment was brought into force, we see nothing
in any law to hold that the provisions thereof can never be
resorted to by a bank like the respondent no.1 in circumstances
such as the present. Upon noticing default being committed, the
account of the petitioners was classified as a non-performing
asset by the respondent no.1. The rights of the respondent
no.2 enforceable against the petitioners for default in payment
of debt having passed on to it, the respondent no.1 did have
the authority or sanction in law to resort to the provisions of the
SARFAESI Act. Applying the parameters as laid down in
paragraph 18 of the decision in M. D. Frozen Foods Exports
Pvt. Ltd. (supra), since accepted in Indiabulls Housing Finance
Limited (supra), we find that all such parameters in the
present case are fulfilled with the result that initiation of
action under Chapter III of the SARFAESI Act by the
respondent no.1, being a “secured creditor” within the
meaning of section 2(zd) thereof for the purpose of
enforcing the security interest that was created earlier, is
legally permissible. That the respondent no. 1 is the
successor-in-interest of the respondent no.2, which was
not a “financial institution” at the material time would
make no difference insofar as consequence in law is
concerned.
14. However, coming to the core- issue of jurisdiction, Section 34 of
the SARFAESI Act bars the jurisdiction of the Civil Court. The Civil Court
cannot entertain any suit or proceeding in respect of a matter which the
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DRT or the DRAT is empowered under the SARFAESI Act to determine
and no injunction can be granted in respect of any action taken in
pursuance of any power conferred by the Securitisation Act, it is pertinent to
extract Section 34 of SARFAESI Act.
"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)."
15. On perusal of the prayer made in O.S.No.78 of 2021, it is seen
that the respondents 1 and 2 / debtors had coined the prayer clubbing two
issues i.e. Arbitration Proceedings as well as the SARFAESI proceedings
together in one suit. As far as the 1st prayer to pass a decree declaring the
award passed by the Arbitrator dated 29-1-2015 as null and void is also the
prayer which is coined to avoid appeal provision under Section 34 of
Arbitration and Conciliation Act. However, as far as the prayer in the
injunction petition which is relevant to SARFAESI Act, in the opinion of this
Court seems to be barred under Section 34 of SARFAESI Act 2002. There
is a small distinction between Section 18 of Recovery of Debts due to banks
and financial institution act and the scope of 34 of SARFAESI Act, wherein
the Hon’ble Supreme Court in case reported in 2014 (1 SCC 479)
Jagadeesh Singh vs. Heeralal & Others] held that the civil court’s
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jurisdiction is ousted. A perusal of the decision would show ousting of
jurisdiction of civil court under SARFAESI Act. The Hon’ble Supreme Court
while considering the scope of Section 34 of SARFAESI Act ousting the
civil court jurisdiction, held that suit filed therein is not maintainable. The
relevant paragraph No. 24 is extracted hereunder :
".. .. .. 24. Statutory interest is being created in favour of the
secured creditor on the secured assets and when the secured
creditor proposes to proceed against the secured assets, sub-
section (4) of Section 13 envisages various measures to
secure the borrower's debt. One of the measures provided by
the statute is to take possession of secured assets of the
borrowers, including the right to transfer by way of lease,
assignment or realising the secured assets. Any person
aggrieved by any of the measures referred to in sub-section (4)
of Section 13 has got a statutory right of appeal to the DRT
under Section 17. The opening portion of Section 34 clearly
states that no civil court shall have the jurisdiction to entertain
any suit or proceeding in respect of any matter which a DRT or
an Appellate Tribunal is empowered by or under the
Securitisation Act to determine. The expression in respect of
any matter referred to in Section 34 would take in the measures
provided under sub-section (4) of Section 13 of the
Securitisation Act. Consequently, if any aggrieved person has
got any grievance against any measures taken by the borrower
under sub-section (4) of Section 13, the remedy open to him is
to approach the DRT or the Appellate Tribunal and not the civil
court. The civil court in such circumstances has no jurisdiction
to entertain any suit or proceedings in respect of those matters
which fall under sub-section (4) of Section 13 of the
Securitisation Act because those matters fell within the
jurisdiction of the DRT and the Appellate Tribunal. Further,
Section 35 says, the Securitisation Act overrides other laws, if
they are inconsistent with the provisions of that Act, which
takes in Section 9 CPC as well. .. .. .."
16. It is clear from the above judgment of the Hon’ble Supreme Court
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that the scope of Section 34 is not one and the similar in its application.
While Section 34 of SARFAESI Act contemplates ousting of civil
jurisdiction to entertain any suit or proceedings in respect of any matter
which DRT or the Appellate Tribunal is empowered to determine under the
SARFAESI Act, whereas, Section 18 of Recovery of Debt Due to bank and
Financial Institution Act contemplates the bar of jurisdiction only in relation
to matters specified under Section 17 of the Act therein. Therefore, the
decision above referred would render assistance as far as the prayer
couched by the plaintiffs / debtors in O.S.No.78 of 2021 with regard to
challenge made by them in prayer C of the plaint.
17. Further, the learned senior counsel appearing for the
respondents, to substantiate his contention, has relied on case of Bank of
Rajasthan vs VCK Shares and Stocking Broking service limited in
Civil Appeal No. 8972 and 8973 of 2014, wherein at paragraph Nos.12,
14, 15, 16, 18, 53 and 54, it is held as follows:-
“12. The Division Bench of the High Court opined that as
per the view of this Court in Nahar Industrial Enterprises Ltd. v.
Hong Kong and Shanghai Banking Corporation,1 a suit filed by
a borrower against the bank was not barred before the Civil
Court, although a suit filed by the bank against the borrower
was barred. This judgment was found to be the authority on the
point as it came subsequent to the other decisions of the
Supreme Court on this issue.
14. In a later decision in Indian Bank v. ABS Marine
Products (P) Ltd. 3 a Division Bench of this Court took the view
that the jurisdiction of the Civil Courts was not barred in regard
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C.R.P.No.1551 of 2021
Jurisdiction was barred only in regard to applications by a bank
or a financial institution for recovery of its debts. It was held that
although a counterclaim and set-off may be made under sub-
Sections (6) and (11) of Section 19 of the RDB Act, no
jurisdiction was conferred on the DRT to try independent suits
or proceedings initiated by the borrowers. It was thus held that
the borrower had the option to file a separate suit before (2000)
7 SCC 357. Tthe Civil Court and the counterclaim before the
DRT was not the only remedy. Referring to the earlier judgment
in Abhijit Tea Co. Pvt. Ltd. & Others (supra), the Bench in the
Indian Bank (supra) observed that an independent suit can be
deemed to be a counterclaim and can be transferred to DRT
only if the following conditions are satisfied:
“a. The subject matter of the bank’s suit, and the suit of the
defendant against the bank, should be inextricably connected in
the sense that decision in one would affect the decision in the
other.
b. Both parties (the plaintiff in the suit against the bank and the
bank) should agree for the independent suit being considered
as a counter-claim in the bank’s application before the Tribunal,
so that both can be heard and disposed of by the Tribunal.”
15. Another Co-ordinate Bench of this Court in State
Bank of India vs. Ranjan Chemicals Ltd. and Another4 held that
there was no need to restrict the power of the Civil Court to
order joint trial by introducing a condition that a joint trial could
be ordered only with the consent of both parties. It was
observed on the basis of Abhijit Tea Co.’s case that a claim in
an independent suit could be considered as a claim for set-off
and counterclaim within the meaning of Section 19 of the RDB
Act.
16. Thus, in the reference order, it was mentioned that
subsequent to the Ranjan Chemicals Ltd. case (supra), another
Division Bench in Nahar Industrial Enterprises Ltd. case (supra)
held that the decision in Ranjan Chemicals Ltd. (supra) could
not have departed from the decision in Indian Bank case
(supra), both being Coordinate Benches. It was thus concluded
that there existed a difference of opinion between several
benches of this Court on this issue and it was considered
appropriate to refer the following questions to a larger Bench.
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“(a). Whether an independent suit filed by a borrower against a
Bank or Financial Institution, which has applied for recovery of
its loan against the plaintiff under the RDB Act, is liable to be
transferred and tried along with the application under the RDB
Act by the DRT ?
(b). If the answer is in the affirmative, can such transfer be
ordered by a court only with the consent of the plaintiff?
(c). Is the jurisdiction of a Civil Court to try a suit filed by a
borrower against a Bank or Financial Institution ousted by virtue
of the scheme of the RDB Act in relation to the proceedings for
recovery of debt by a Bank or Financial Institution?”
18. The Supreme Court of India in Indian Bank case
(supra), Ranjan Chemicals Ltd. case (supra) and Nahar
Industrial Enterprises Ltd. case (supra) has had no cleavage of
opinion regarding the first question referred to a larger bench as
they held that an independent suit by a borrower can be
transferred and tried along with the original application by the
bank under the RDB Act. The difference of opinion arose only
with respect to consent of the parties. These decisions have
set no bar in law regarding the transfer of independent suit filed
by the borrower against the bank to be decided as a
counterclaim/set-off by the DRT in an original application filed
by the bank.
53. We certainly would not like that the process
envisaged under the RDB Act be impeded in any manner by
filing of a separate suit if a defendant chooses to do so. A claim
petition before the DRT has to proceed in a particular manner
and would so proceed. There can be no question of stay of
those proceedings by way of a civil proceeding instituted by a
defendant before the Civil Court. The suit would take its own
course while a petition before the DRT would take its own
course. We appreciate that this may be in the nature of parallel
proceedings but then it is the defendant’s own option. We see
no problem with the same as long as the objective of having
expeditious disposal of the claim before the DRT under the
RDB Act is not impeded by filing a civil suit. Thus, it is not open
to a defendant, who may have taken recourse to the Civil
Court, to seek a stay on the decision of the DRT awaiting the
verdict of his suit before the Civil Court as it is a matter of his
choice.
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54. We thus make it abundantly clear that in case of such
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an option exercised by the defendant who filed an independent
suit, whatever be the nature of reliefs, the claim petition under
the RDB Act would continue to proceed expeditiously in terms
of the procedure established therein to come to a conclusion
whether a debt is due to a bank and/or financial institution and
whether a recovery certificate ought to be issued in that behalf.”
18. On the reading of the above Judgment, it is categorically clear
that the bar under Section 34 is absolute and civil jurisdiction is ousted to
entertain any suit or proceedings in respect of any matter, which the DRT or
appellate tribunal is empowered under the SARFAESI Act. Having invoke
the SARFAESI provision and the sale notice issued dated 19-2-2021
under the SARFAESI Act, the debtor/plaintiffs before the Principal District
Judge, Thiruvallur has couched the prayer engrossing the SARFAESI
Jurisdiction into the Civil Court as far as prayer B & C in the plaint, which
the civil court has no jurisdiction to try as there is absolute bar under
Section 34 of SARFAESI Act.
In the above said facts and circumstances of the case, this Court
has no hesitation to set aside the order dated 12-3-2021 made in I.A. No. 4
of 2021 in O.S. No. 78 of 2021. However, with regard to the second limb of
the prayer made in the present civil revision petition to terminate O.S.
No.78 of 2021 is allowed partly by rendering the prayer B & C, as
terminated owing to lack of jurisdiction to the civil court on the ground that
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there is absolute bar under Section 34 of SARFAESI Act to entertain any
issue, which Debt Recovery Tribunal or Appellate Tribunal is empowered to
determine.
With the above direction the Civil Revision Petition is partly allowed.
Consequently, connected miscellaneous petitions are closed. No costs.
07.07.2023
Index:Yes/No
Internet:Yes/No
Speaking / Nonspeaking order
ssd
To
1. Future Capital Finance Service Limited
rep. By its State Risk Head having registered
office at FCH House, Peninsula Corporate Park,
Ganpatrao Kadam Marg,
Lower Parle, Mumbai – 400 013
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C.R.P.No.1551 of 2021
2. Authorised Officer,
Capital First Limited,
Unit No.401-407, 4th Floor,
A Wing Technopolis Knowledge Park,
Chakala Road, Opp. Holy Family School,
Andheri, Mumbai – 400 093
V.BHAVANI SUBBAROYAN J.
ssd
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C.R.P.No.1551 of 2021
C.R.P.No.1551 of 2021
07.07.2023
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