Punjab-Haryana High Court
Puja Jain And Another vs Kotak Mahindra Bank Ltd. And Others on 8 January, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:000268
CR No.1249 of 2020(O&M) -1- 2024:PHHC:000268
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.1249 of 2020(O&M)
Reserved On: 30.11.2023
Pronounced On:08.01.2024
Puja Jain and another
...Petitioners
Versus
Kotak Mahindra Bank Ltd. and others
...Respondents
CORAM: HON'BLE MR JUSTICE ANIL KSHETARPAL
Present: Mr. Rupinder S. Khosla, Sr. Advocate, with
Mr. Dinesh Arora, Advocate,
for the petitioners.
Mr. Hemant Saini, Advocate
for respondent no.1.
Mr. J.S.Pannu, AAG, Haryana
for respondent no.3.
ANIL KSHETARPAL, J.
1. In this revision petition, filed under article 227 of the
Constitution of India, the plaintiffs assail the correctness of the concurrent
orders passed by the courts below while allowing the respondent-bank's
application for rejection of the plaint on an application filed under Order
VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as
CPC) read with Section 34 of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter
referred to as 'the 2002 Act').
2. The plaintiffs, namely, Smt. Puja Jain wife of Sh. Anil Jain and
Sh. Anil Jain son of Sh. Satish Kumar Jain filed a suit for declaration with
consequential relief of permanent injunction and mandatory injunction
against respondent no.1-Bank and others. They challenged the correctness
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of notice issued under Section 13(2), 13(4) and proceedings under Section
14 of the 2002 Act. In substance, the plaintiffs are the Directors of M/s
Acropolymers Private Limited. M/s Apra Auto (India) Private Limited
availed various credit facilities from respondent no.1-bank. M/s
Acropolymers Private Limited signed a corporate guarantee and mortgaged
three different properties with the bank in order to secure the re-payment of
loan to defendant no.2-M/s Apra Auto (India) Private Limited. Since there
was a default in the re-payment of the loan amount, a notice under Section
13(2) of the 2002 Act was issued by the Bank on 26.04.2017. However,
neither any reply was filed nor payment was made. Ultimately, a notice
under Section 13(4) of the 2002 Act was issued by the Bank on 13.07.2017
and the symbolic possession of the property was taken which was also
published in the newspapers. Thereafter, the bank filed an application under
Section 14 of the 2002 Act before the District Magistrate. At this stage, the
plaintiffs filed the civil suit. It may be noted here that in the beginning Sh.
Satish Kumar Jain, father-in-law of plaintiff no.1 and father of plaintiff no.1
along with Sh. Sandeep Jain, brother of plaintiff no.2 filed SA No.239 of
2017 in Debt Recovery Tribunal, Delhi, which was dismissed on
21.09.2017. Thereafter, M/s Acropolymers Private Limited through. Sh.
Anil Jain (Plaintiff no.2) filed an application under Section 17 of the 2002
Act i.e. SA No.764 of 2017, which was dismissed on 02.11.2017, by the
Debt Recovery Tribunal, Chandigarh.
3. The plaintiffs allege that their digital signatures have been
misused and the bank record has been tampered with. Thus, the plaintiffs
have tried to make out a case that the bank has committed fraud against
them. An application under Order VII Rule 11 CPC read with 34 of the
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2002 Act was filed which has been allowed. It has been disclosed in the
application that another SA No.6843 of 2017 has also been filed.
4. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book.
5. The learned counsel representing the petitioner while relying
upon para 51 of the judgment passed in Mardia Chemicals Limited Etc.
Etc. vs. Union of India and others Etc. Etc., 2004(4) SCC 311 and
Gurdeep Singh vs. Punjab and Sind Bank and others, 2015 (9) RCR Crl.
101, contends that the courts below have erred in rejecting the plaint. He
submits that a fraud has been alleged in accordance with Order VI Rule 4
CPC and therefore, the Civil Court has the jurisdiction.
6. On the other hand, the learned counsel representing the
respondent while contesting the revision petition has submitted that both the
courts have correctly held that the plaint is liable to be rejected.
7. This court has examined the various judgments passed by the
Supreme Court on the aforesaid issue.
8. In Mardia Chemicals case (supra), it was held that under
Section 17 of the 2002 Act, the Tribunal has a wider jurisdiction. However,
in para 51 of the judgment, a small window was left for the civil court to
examine the matter if the action of the secured creditor is alleged to be
fraudulent or their claim is so absurd and untenable that it does not require
any proof. Thereafter, Section 17 of the 2002 Act was amended by the
Enforcement of Security Interest and Recovery of Debts Laws and
Miscellaneous Provisions (Amendment) Bill,2016. The scope of Section 17
of the 2002 Act was further enlarged after the said amendment. Again the
matter came up for consideration before the Supreme court in The
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Authorized Officer State Bank of India vs. M/s Allwyn Alloys Pvt. Limited
and others (2018) 8 SCC 210. The Supreme Court held that the jurisdiction
of the civil court is barred particularly when Section 17 provides for a
sufficient opportunity to anyone to file petition before the Debt Recovery
Tribunal. The aforesaid view was reiterated in M/s Sree Anandhakumar
Mills Ltd. vs. Indian overseas Bank. (2019) 4 SCC 758. Recently, in
Electro Steel casting Ltd. vs. UV Asset Reconstruction Company, (2022)2
SCC 573, the Supreme Court has held that the jurisdiction of the civil court
is barred under Section 34 of the 2002 Act. The same view was reiterated in
Charu Kishor Mahte, 2022 SCC Online SC 1962. Very recently in Punjab
& Sind Bank vs. Frontline Corp. Ltd. (2023) SCC Online SC 1209, the
Supreme Court held that the jurisdiction of the civil court is barred under the
provisions of the 2002 Act.
9. This court has also carefully examined the copy of the plaint
from the record which was requisitioned. It is evident that in substance, the
plaintiffs while claiming to be Directors of M/s Acropolymers Private
Limited alleged that their digital signatures have been forged and the
property of the company was never mortgaged against the loan and there is
some manipulation in the amount which was extended as the credit facility
that can be examined by the Debt Recovery Tribunal which is also normally
presided over by officer of the rank of District Judge. This court has also
carefully read the judgment passed in Gurdeep Singh's case (supra). The
Division Bench of Delhi High Court in a petition filed under Section 226 of
the Constitution of India restrained the Debt Recovery Tribunal from
proceeding further in a matter where a civil court is at the advance stage and
the court also held that it will not be appropriate to permit the continuation
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of proceedings under Section 19 of the Recovery of Debts Due to Bank and
Financial Institutions Act, 1993. Hence, the aforesaid judgment passed by
the Division Bench in Gurdeep Singh's case(supra) is not applicable to the
present case.
10. Keeping in view the aforesaid facts and discussion, finding no
merits, the revision petition is dismissed.
11. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
th
08 January, 2024 JUDGE
nt
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
Neutral Citation No:=2024:PHHC:000268
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