Rajasthan High Court
Shri Ram Housing Finance Co Ltd vs Prakash Chand Somvanshi S/O Late ... on 2 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 127/2018
Shri Ram Housing Finance Company Limited Branch Third Floor,
Sawariya Tower, Bhagat Singh Circle, Alwar through Branch
Manager
----Petitioner-Defendant No.1
Versus
1. Prakash Chand Somvanshi s/o Late Shri Amar Singh age 47
approximately, R/o Maa Serawali Mandir Ke Samne, Mehtab
Singh Ke Nohre Ke Peeche, Alwar Raj.
----Respondent No.1-Plaintiff
2. Lakhmi Chand Saini S/o Sorti Lal Saini, r/o 291 Scheme No.01
Arya Nagar, Alwar.
Defendant No.2/performa Defendant
For Petitioner(s) : Mr. Pramod Kumar
For Respondent(s) : Mr. Ashish Sharma Upadhyay
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
02/03/2022
Instant revision petition has been filed by petitioner assailing
the order dated 13.04.2018 passed by Civil Judge (Jr. Division)
No.1, Alwar, in civil suit No.346/2017, whereby and whereunder
application filed by petitioner under Order VII Rule 11 CPC read
with Section 34 of Securitization and Reconstruction of Financial
Assets and Enforcement of Security (interest) Act 2002 (SARFAESI
Act) has been rejected.
Learned counsel appearing for respondent-plaintiff submits
that it is not in dispute that the property in question was
mortgaged with the petitioner financial institution and before filing
of suit, proceedings under Securitisation and Reconstruction of
(2 of 4) [CR-127/2018]
Financial Assets and Enforcement of Security Interest Act, 2002
(hereinafter referred to as "SARFAISI Act, 2002") had already
been initiated. The respondent brought the suit for permanent
injunction thereafter, placing reliance on an ante dated
unregistered agreement dated 20.08.2015.
As per record, it is clear that plaintiff claimed that he
purchased the suit property from defendant No.2 through an
unregistered agreement dated 20.08.2015. The defendant No.2
mortgaged the property to defendant No.1-Bank on 29.01.2016.
The account of defendant No.2 was classified as NPA on
05.08.2016 and thereafter notice under Section 13(2) of the
SARFAISI Act, 2002 was issued on 22.10.2016 and after kaing
from the Collector the possession has been taken on 03.10.2017.
Thereafter, the mortgaged property was put for public auction and
a final sale certificate dated 18.02.2019 was issued in favour of
one Mr. Pradeep Kumar Sukhwani. The possession was also
delivered. The registered sale certificate with endorsement of
handing over the possession to the auction purchaser has been
placed on record.
The proposition of law is that after initiation of proceedings
under SARFAISI Act, 2002 in relation to the secured asset the
jurisdiction of civil court to entertain the civil on any nature is
expressly barred by virtue of Section 34 of the Act. The judgment
of Hon'ble Supreme Court reported in the case of Jagdish Singh
Vs. Heeralal & Ors., (2014) 1 SCC 479 has been referred to
substantiate the aforesaid question of law.
According, to the judgment rendered by the Hon'ble
Supreme Court in the case of Jagdish Singh (Supra), it is clear
that the civil suit for permanent injunction filed by the respondent-
(3 of 4) [CR-127/2018]
plaintiff against petitioner financial institution is without
jurisdiction and is not maintainable before the Civil Court. Even
Institution or civil suit itself was bad and same was filed misusing
the process of law.
Learned counsel for petitioner submits that respondent-
plaintiff be saddled with costs for misusing the process of law. At
this stage, the counsel appearing for respondent-plaintiff submits
that the plaintiff may be allowed to take legal action against
private defendant No.2 separately and his civil suit against
petitioner financial institution may be allowed to be withdrawn.
Learned counsel for defendant submits that he has no
objection and would not claim any cost if respondent-plaintiff is
allowed to withdraw his civil suit for permanent injunction at this
stage.
In view of submissions made by learned counsel for parties,
the civil suit for permanent injunction bearing No. 346/2017 titled
as (Prakash Chand Somvanshi Vs. Shri Ram Housing Finance Ltd.)
pending before Civil Judge (Junior Division) No.1, Alwar is allowed
to be withdrawn and as such be treated as dismissed. The copy of
this order be placed before the trial Court and the trial Court on
the basis of this order shall consign the civil suit to the record
treating the same dismissed as withdrawn w.e.f. 03.03.2022.
Since the civil suit itself has to be dismissed as withdrawn,
there is no need to pass any separate order for rejection of plaint
in the present revision petition and hence the same is disposed of
accordingly.
Any other pending application(s), also be treated to be
disposed of.
(4 of 4) [CR-127/2018]
However, it is open for the plaintiff to take appropriate legal
action against the defendant No.2 as available in law.
(SUDESH BANSAL),J
TN/71
Powered by TCPDF (www.tcpdf.org)
