Punjab-Haryana High Court
Anil Kumar Rohilla vs Religare Housing Development ... on 27 January, 2023
RSA-230-2023 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-230-2023 (O&M)
Date of decision: 27.01.2023
Anil Kumar Rohilla
...Appellant
Versus
Religare Housing Development Finance Corp. Ltd., and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S. MADAAN
Present: Mr. Ashish Yadav, Advocate for the appellant.
*****
H.S. MADAAN, J.
Briefly stated facts of the case are that plaintiff Anil Kumar
Rohilla had filed a suit against defendants Religare Housing
Development Finance Corp. Ltd., Gurugram, his brother Sunil Kumar and
sister Saroj seeking a declaration that he is owner in possession of the suit
property, which is in the form of residential house measuring 39.11 sq.
yard situated in village Garhi Harsaru, District Gurugram and notice
dated 10.11.2021 issued for taking possession by defendant
No.1/financial institution be declared null and void, besides granting a
decree for permanent injunction restraining the defendants from taking
possession of residential house or from alienating the same by way of
auction. According to the plaintiff, the residential house is his ancestral
property. Father of plaintiff had expired on 29.08.2020 and during his life
time, father of plaintiff had disowned his other brother Sunil Kumar from
moveable and immovable property by way of getting a public notice
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published. The plaintiff had not taken any land from defendant No.1 and
notice for possession is illegal.
2. Defendant No.1 financial institution had filed an application
under Order 7 Rule 11 CPC, contending that as per Section 34 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short 'the Act'), the civil Court does not
have jurisdiction.
3. The application was resisted by the plaintiff, contending that
where civil rights of persons other than the borrowers and guarantors are
involved, the civil Court shall have jurisdiction. Since the plaintiff is
neither the borrower nor the guarantor, therefore, the suit is maintainable.
4. However, vide order dated 20.09.2022 the trial Court had
allowed the application and thereby rejected the plaint, leaving the
plaintiff aggrieved and he had approached the Court of District Judge,
Gurugram, which was assigned to Addl. District Judge, Gurugram, who
vide judgment and decree dated 16.12.2022, upheld the order dated
20.09.2022 and dismissed the appeal. Now the plaintiff/appellant has
knocked at the door of this Court by way of filing the present Regular
Second Appeal.
5. I have heard learned counsel for the appellant/plaintiff
besides going through the record and I find that the appeal lacks any
merit.
6. Section 34 of the Act provides bar to jurisdiction of Civil
court dilating that no civil court shall have jurisdiction to entertain any
suit or proceeding in respect of any matter which a Debt Recovery
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Tribunal or the Appellate Tribunal is empowered by or under this 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 confered by or under this Act or under the Recovery of Debts Due
to Banks and Financial Institutions Act, 1993.
Section 35 of the Act provides that the provisions of this Act
to override other laws.-The provisions this Act shall have effect,
notwithstanding anything inconsistent therewith contained in any other
law for the time being in force or any instrument having of effect by
virtue of any such law.
7. The submissions made by counsel for the
applicant/defendant No.1 are to the effect that in this case, the suit
property is a secured asset with respondent No.1 financial institution
towards the home loan raised by father and brother of plaintiff. The
property in question was mortgaged with respondent No.1 financial
institution as security for grant of that loan. The borrowers have since
failed to repay the loan amount and which has been declared as an NPA.
Respondent No.1 financial institution has already initiated action under
the Act, moving an application under Section 14 of the Act which was
accepted and Sh. Vikas Lathar, Advocate was appointed as a Duty
Magistrate for taking the possession of the secured asset. The civil suit
has been filed by the plaintiff to defeat the process initiated under the Act.
Brother of plaintiff namely Sunil Kumar-defendant No.2 had approached
Debt Recovery Tribunal but no relief was granted to him. In the
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impugned order, the trial Court has recorded the contentions raised by
both the counsel.
9. Although counsel for the plaintiff/respondent tried to refute
the assertions made by counsel for defendant No.1 but then as it comes
out, the jurisdiction of the civil Court in such type of matters is barred.
The plaintiff seems to have invented a story just to wriggle out of
Sections 34 and 35 of the Act. The suit in question is clearly barred under
Sections 34 and 35 of the Act. If aggrieved, the plantiff can approach
DRT under Section 17 of the Act.
10. Counsel for the appellant has referred to judgments Central
Bank of India Vs. Mr. Ram Rattan @ Rattan Lal & Ors., in CR-2475-
2015 decided on 09.04.2015, Kaaiser Oils Pvt. Ltd. & Ors. Vs.
Allahabad Bank & Ors. in FAT-166-2017 decided on 30.08.2017, Ritu
Gupta & Ors. Vs. Usha Dhand & Ors., in CS (OS) 188-2011 decided
on 19.11.2013 and Punjab National Bank Vs. Ram Kishan in CR-101-
2014 decided on 13.01.2014. These judgments are not applicable due to
different facts, circumstances and the context in which such observations
have been made.
11. The impugned order/judgment are quite detailed and well
reasoned. Those do not suffer from any illegality or infirmity. There is no
merit in the instant Regular Second Appeal. No substantial question of
law arises in this appeal. The appeal stands dismissed accordingly.
27.01.2023 (H.S. MADAAN)
sumit.k JUDGE
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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