Bombay High Court
Aditya Birla Housing Finance Ltd., … vs Shri. Rajeev S/O Late Shri. Chunnilal … on 28 March, 2025
2025:BHC-NAG:3320
Judgment
378 cra77.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.77 OF 2024
Aditya Birla Housing Finance Limited, a Financial
Institution having one of its Branches at 701/A,
Shree Ram Shyam Towers, LIC Square, Sadar
Nagpur acting through one of its Authorised
officer, having authority to file the application
which includes the authority to verify and sign the
application. ..... Applicant.
:: V E R S U S ::
1. Shri Rajeev s/o Late Shri Chunnilal
Agrawal, aged about 60 years,
occupation : business, r/o 301,
Ashirwad Enclave, 222 Khare Town,
Dharampeth, Nagpur-440 010.
2. Shri Durwas s/o Shrawanji Vaidya,
aged about 62 years, occupation:
service, r/o plot No.46, flat No.101
Shravaan Apartment,
Vidhya Nagar, Pandhan Road,
Wathoda, Nagpur-441 107.
3. Shri Rahul s/o Prabhakar Chole,
aged about 44 years, occupation:
not known, r/o house No.990,
Tulsibagh Road, Chitnavispura,
opposite Chhatrapati High School,
.....2/-
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Mahal, Nagpur-440 032.
4. Shri Saddan Alia Javed Ali,
aged about 32 years, occupation:
private, r/o plot No.46, flat No.401,
Shravaan Apartment,
Vidhya Nagar, Pandhan Road,
Wathoda, Nagpur-441 107
and also at Navaj Nagar,
Uppalwadi, Nagpur-440 008. ..... Non-applicants.
Shri M.Anilkumar, Counsel for the Applicant.
Shri Sahil Dewani, Counsel for NA No.1.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 17/02/2025
PRONOUNCED ON : 28/03/2025
JUDGMENT
1. Challenging the order passed by learned 8th Joint
Civil Judge Senior Division, Nagpur in SCS No.1040/2023
below Exh.15 by which application for rejection of plaint
under Order VII Rule 11 of the CPC which is rejected by
order dated 1.11.2023, the present revision application is
preferred.
…..3/-
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2. The applicant is original defendant No.4, a
Financial Institution registered as the Securitization and
Reconstruction Company pursuant to Section 3 of the The
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI
Act). The non-applicant No.1 is the original plaintiff who
filed the suit for declaration, permanent injunction, and
cancellation of sale deed. As per the contention of the
plaintiff, he is owner of structure comprising
apartment/flat No.401, situated at 4th floor of the building
to be known as “Shraawan Apartment” admeasuring 820
square feet and part and parcel of land khasra No.49/4 of
mauza Wathoda. Original defendant No.1 Durwas Vaidya
has purchased land bearing plot No.46 from Kailash
Sahakari Gruh Nirman Sanstha vide sale deed dated
6.9.1985. Defendant No.1 who was owner of the said
plot developed the said plot by constructing building. The
…..4/-
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plaintiff approached the defendant No.1 to purchase a flat
and entered into registered agreement of sale for
consideration of Rs.30.00 lacs on 15.11.2019. Since the
construction work was in progress, it was agreed between
the plaintiff and defendant No.1 that the sale deed would
be executed on completion of remaining work. Defendant
No.1 also executed power of attorney in favour of the
plaintiff for executing sale deed on 15.11.2019. As per
the plaintiff, though the sale deed was not executed in his
favour, possession was handed over to him on
15.11.2019. The sale deed was executed in his favour on
8.7.2021. It is alleged by the plaintiff that on 7.2.2023 he
came to know that the applicant who is original
defendant No.4 issued possession notice. On enquiry, it
revealed that defendant No.1 fraudulently executed
power of attorney in favour of defendant No.2 dated
6.7.2020 authorizing defendant No.2 to sale the suit
…..5/-
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property. The defendant No.2 executed sale deed of suit
property in favour of defendant No.3 on 20.5.2021.
Defendant No.3 mortgaged the suit flat availing loan of
Rs.27,42,291/- from defendant No.4 that is the present
applicant. As the defendant No.3 committed defaults in
repayments, the present applicant had classified the loan
account as non performing assets (NPA) and consequently
took the recourse of provisions of the SARFAESI Act
against the defendant No.3. The applicant issued
possession letter on 7.2.2023. It is alleged by the plaintiff
that defendant No.3 had availed the loan facility by
mortgaging the said flat on 20.5.2021 although plaintiff
was legal and absolute owner of the said flat and was in
possession since 15.11.2019. It is further alleged that
applicant who is defendant No.4 governed by the RBI and
was under legal obligation to verity or scrutinize or
proper verification before sanctioning the loan which is
…..6/-
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not followed by the applicant and, therefore, the plaintiff
issued notice to the applicant on 9.6.2023. As per the
contention of the plaintiff, the said flat cannot be subject-
matter of possession under the SARFAESI Act. The
plaintiff already approached to the Debt Recovery
Tribunal and challenged the notice under Section 17 of
the SARFAESI Act and the present suit is filed for
declaration and injunction.
3. On service of the notice, the present applicant
appeared and filed an application under Order VII Rule
11 of the CPC on the ground that in view of Section 34 of
the SARFAESI Act, the civil court has no jurisdiction to try
and entertain the suit. The further ground raised is that
the plaintiff has already initiated the action under Section
17 of the SARFAESI Act and on the similar cause of
action, the suit is not maintainable. It is further
contended that in fact no cause of action arose against the
…..7/-
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applicant as the suit property is lawfully mortgaged by the
owner. Defendant No.4 has taken the possession of the
property on 7.2.2023 pursuant to the provisions of the
SARFAESI Act. Learned CJSD by observing that civil
court has jurisdiction to decide the civil rights of the
plaintiff who is neither borrower nor guarantor to the
loan advanced by the applicant to the defendant No.3
and, therefore, the suit is not maintainable and rejected
the application.
4. Being aggrieved and dissatisfied with the same, the
present revision application is preferred.
5. Before considering the submissions, it is necessary
to reproduce the admitted facts, as under:
(1) original defendant No.1 Durwas Vaidya was
original owner who had purchased the plot No.46
…..8/-
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from Kailash Sahakari Gruh Nirman Sanstha vide
sale deed dated 6.9.1985;
(2) defendant No.1 developed the plot and
constructed building. The plaintiff approached to
him to purchase the flat and registered agreement
of sale dated 15.11.2019 was executed between
them;
(3) defendant No.1 also executed power of
attorney in favour of plaintiff for executing a sale
deed on 15.11.2019. The possession was also
handed over to the plaintiff on 15.11.2019;
(4) the sale deed was executed in favour of
plaintiff on 8.7.2021;
(5) the defendant No.1 executed power of attorney
in favour of defendant No.2 on 6.7.2020 to sale
the suit property;
…..9/-
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(6) defendant No.2 executed sale deed of the suit
flat in favour of defendant No.3 on 20.5.2021;
(7) defendant No.3 mortgaged the suit flat availing
loan of Rs.27,42,291/- from the present applicant,
and
(8) defendant No.3 committed defaults in
repayment and, therefore, the applicant has
initiated the action under the Rs.27,42,291/- and
issued possession letter on 7.2.2023.
6. Heard learned counsel Shri M.Anilkumar for the
applicant who submitted that the application is filed
under Order VII Rule 11 especially on the ground that in
view of Section 34 of the SARFAESI Act, no civil court has
jurisdiction to entertain any suit or proceeding in respect
of any matter which Debts Recovery Tribunal or the
Appellate Tribunal is empowered by or under this Act to
…..10/-
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determine and no injunction shall be granted by any court
or by any authority in respect of any action taken or to be
taken in pursuance of any power conferred by or under
this Act. Section 34 of the SARFAESI Act provides that
the said Act would have overriding effect. The plaintiff
has already initiated an action and challenged the notice
under Section 17 of the SARFAESI Act which confers right
of appeal to any person including borrower, if that person
is aggrieved by any of “measures” referred to in Sub-
section (4) of Section 13 taken by the secured creditor.
The expression “any person” has wide import and takes
within its scope not only the borrowers but also the
guarantor or any other person who may be affected by
action taken under Section 13(4) of the SARFAESI Act.
He further submitted that a Debt Recovery Tribunal or an
Appellate Tribunal is empowered to determine in respect
of any action taken or to be taken in pursuance of any
…..11/-
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power conferred under the SARFAESI Act. The civil
courts’ jurisdiction is completely barred so far as measures
taken by the secured creditor under Sub-section (4) of
Section 13 of the SARFAESI Act against which an
aggrieved person has right of appeal before the DRT or
the Appellate Tribunal to determine as to whether there
has been any illegality in the measures taken. The said
action is already taken by the plaintiff. He further
submitted that as far as the cause of action against the
present applicant is concerned, the plaintiff nowhere
discloses the same. On the contrary, the documents filed
by the plaintiff itself shows that it nowhere reflects that
the applicant was aware as to the earlier transaction by
the defendant No.1 with the plaintiff. The title
documents and the search report obtained by the present
applicant nowhere disclose that on the basis of the
agreement of sale, possession was handed over to the
…..12/-
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12
plaintiff and he obtained the title. Thus, no cause of
action arose as far as the present applicant is concerned
and, therefore, the plaint deserves to be rejected against
the present applicant.
7. In support of his contentions, learned counsel for
the applicant placed reliance on following decisions:
(1) Sunil Kumar Jain vs. Kishan, reported in 1995
LawSuits (SC) 573;
(2) Standard Chartered Bank vs. Dharminder
Bhohi and ors, reported in 2013 LawSuit (SC) 913;
(3) Jagdish Singh vs. Heeralal and ors, reported in
2013 LawSuit (SS) 1010;
(4) Savita Bhagwantrao Patil and ors vs. Shyam
Pukhraj Asopa and ors, reported in 2014 LawSuit
(Bom)678;
(5) Bank of Rajasthan vs. Suryakant Sukhdeo Gite
and ors, reported in 2014 LawSuit (Bom) 763;
(6) Axis Bank Limited vs. Madhav Prasad Aggarwal
and ors, reported in 2018 LawSuit (Bom) 2051;
(7) State Bank of India vs. Allvvyn Alloys Pvt.Ltd.
and ors, reported in 2018 LawSuit (SC) 517;
…..13/-
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(8) State Bank of India vs. Aurelio Jose DA Costa,
reported in 2017 LawSuit (Bom) 280;
(9) Bank of Baroda vs. Paramount Conductors
Limited, reported in 2019 DGLS (Bom) 1589;
(10) Punjab and Sindh Bank vs. Frontline
Corporation Ltd., reported in 2023 LawSuit (SC)
427;
(11) Charu Kishan Mehta vs. Prakash Patel,
reported in 2020 LawSuit (SC) 1369;
(12) Union Bank of India vs. M/s.Gnandrum
Enterprises, reported in 20234 LawSuit (Bom)
129;
(13) G.Vikram Kumar vs. State Bank of Hyderabad,
reported in 2023 LawSuit (SC) 485;
(14) Smita vs. Jitendra, reported in 2022 DGLS
(Bom) 1693, and
(15) Madhav Prasad Aggarwal and anr vs. Axis
Bank Ltd. and anr, reported in 2019 LawSuit (SC)
1268.
8. Learned counsel for non-applicant No.1 also filed
his written submissions and submitted that it is well
settled principle of law that only on the basis of the
averments made in the plaint, it could be ascertained as
…..14/-
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to whether cause of action is made out or not. In fact, the
entire pleading in the plaint will have to be read and that
too at its face value and defence taken by the defendants
cannot be looked into. The applicant being a non-banking
financial institution regulated by the RBI has clearly
omitted in its obligation to carry out due diligence while
advancing the loan. It was also specifically pointed out
that the reliefs which were claimed by the answering non-
applicants herein could only granted by the civil court and
not by the Debt Recovery Tribunal. The trial court while
considering, categorically concluded that civil rights of
the plaintiff who is neither the borrower nor the
guarantor are affected and rightly rejected the
application. He further submitted that the decisions
relied upon by the applicant are judicial precedent as to
the nature and extent of bar under Section 34 of
SARFAESI Act. There are certain reliefs which only can
…..15/-
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be granted by the civil court and, therefore, the revision
application is devoid of merits and liable to be dismissed.
9. In support of his contentions, learned counsel for
non-applicant No.1 placed reliance on following
decisions:
(1) Eldeco Housing and Industries Limited vs.
Ashok Vidyarthi and ors, reported in 2023 SCC
OnLine SC 1612;
(2) Bank of Baroda, thr.its Branch Manager vs.
Gopal Shriram Panda and anr, reported in 2021
SCC OnLine Bom 466;
(3) Civil Appeal No.1876/2016 (Central Bank of
India and anr vs. Smt.Prabha Jain and ors) decided
by the Hon’ble Apex Court on 91.2025, and(4) Bank of Rajasthan Limited vs. VCK Shares and
Stock Broking Services Limited, reported in
(2023)1 SCC 1.
10. In view of the admitted position, the suit is filed for
declaration and injunction as the action is taken by
issuing the notice of possession by the applicant as the
…..16/-
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defendant No.3 has committed default in payment of the
loan amount. As far as the applicant who is defendant
No.4 is concerned, allegation in the plaint is that the
applicant had legal duty and obligation to check,
scrutinize and perform proper verification of the security
before sanctioning any loan against it. The defendant
No.4 has failed to perform and not followed the rules and
regulations and by joining hands in glove to cause the loss
to the plaintiff initiated the action against the plaintiff.
The cause of action shown against the applicant is that
the plaintiff received notice from the applicant under
Section 13(2) of the SARFAESI Act. The cause of action
as per the plaintiff arose as fraud is played by the
defendant in respect of the said flat which he is in
possession. The application is filed by the applicant for
rejection of the plaint under Order VII Rule 11(a) and (d)
of the CPC on the ground that no cause of action arose
…..17/-
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against the applicant and the suit is barred in view of
Section 34 of the SARFAESI Act.
11. Before entering into the merits of the case, it would
be relevant to refer the relevant provisions of the
12. Section 13(2) of the SARFAESI Act reads as
follows:
Section 13. Enforcement of security interest.
(1) Notwithstanding anything contained …..
(2) Where any borrower, who is under a liability
to a secured creditor under a security
agreement, makes any default in repayment of
secured debt or any instalment thereof, and his
account in respect of such debt is classified by
the secured creditor as non-performing asset,
then, the secured creditor may require the
borrower by notice in writing to discharge in
full his liabilities to the secured creditor within
sixty days from the date of notice failing which…..18/-
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the secured creditor shall be entitled to exercise
all or any of the rights under sub-section (4).
13. Section 17 of the SARFAESI Act confers a right of
appeal to any person including borrower, if that person is
aggrieved by any of the measures referred to in Sub-
section (4) of Section 13 taken by the secured creditor.
Section 17 is reproduced for the reference as under:
“17. [Application against measures to recover
secured debts.] [Substituted ‘Right to appeal’ by
Act No. 44 of 2016.](1) Any person (including borrower), aggrieved by
any of the measures referred to in sub-section (4)
of section 13 taken by the secured creditor or his
authorised officer under this Chapter, [may make
an application alongwith such fee, as may be
prescribed,] [Substituted by the Enforcement of
Security Interest and Recovery of Debts Laws
(Amendment) Act, 2004 (30 ofr 2004), Section 10,
for “may prefer an appeal” (w..e.f. 21.6.2002).] to
the Debts Recovery Tribunal having jurisdiction in…..19/-
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the matter within forty-five days from the date on
which such measures had been taken:
[Provided that different fees may be prescribed for
making the application by the borrower and the
person other than the borrower.] [Inserted by the
Enforcement of Security Interest and Recovery of
Debts Laws (Amendment) Act, 2004 (30of 2004),
Section 10 (w.r.e.f. 21.6.2002).][Explanation. For the removal of doubts, it is
hereby declared that the communication of the
reasons to the borrower by the secured creditor for
not having accepted his representation or objection
or the likely action of the secured creditor at the
stage of communication of reasons to the borrower
shall not entitle the person (including borrower) to
make an application to the Debts Recovery
Tribunal under this sub-section.] [Inserted by the
Enforcement of Security Interest and Recovery of
Debts Laws (Amendment) Act, 2004 (30 of 2004),
Section 10 (w.r.e.f. 11.11.2004).](1A)[An application under sub-section (1) shall be
filed before the Debts Recovery Tribunal within the
local limits of whose jurisdiction-
(a) the cause of action, wholly or in part, arises;
…..20/-
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(b) where the secured asset is located; or
(c) the branch or any other office of a bank or
financial institution is maintaining an account in
which debt claimed is outstanding for the time
being.]
(2) [The Debts Recovery Tribunal shall consider
whether any of the measures referred to in sub-
section (4) of section 13 taken by the secured
creditor for enforcement of security are in
accordance with the provisions of this Act and the
rules made thereunder.] [ Sub-sections (2) and (3)
substituted by the Enforcement of Security Interest
and Recovery of Debts Laws (Amendment) Act,
2004 (30 of 2004), Section 10, (w.e.f. 11-11-
2004)]
(3)[If, the Debts Recovery Tribunal, after
examining the facts and circumstances of the case
and evidence produced by the parties, comes to the
conclusion that any of the measures referred to in
sub-section (4) of section 13, taken by the secured
creditor are not in accordance with the provisions
of this Act and the rules made thereunder, and
require restoration of the management or
restoration of possession, of the secured assets to
…..21/-
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the borrower or other aggrieved person, it may, by
order,-
(a) declare the recourse to any one or more
measures referred to in sub-section (4) of section
13 taken by the secured creditor as invalid; and
(b) restore the possession of secured assets or
management of secured assets to the borrower or
such other aggrieved person, who has made an
application under sub-section (1), as the case may
be; and
(c) pass such other direction as it may consider
appropriate and necessary in relation to any of the
recourse taken by the secured creditor under sub-
section (4) of section 13.]
(4) If, the Debts Recovery Tribunal declares the
recourse taken by a secured creditor under sub-
section (4) of section 13, is in accordance with the
provisions of this Act and the rules made
thereunder, then, notwithstanding anything
contained in any other law for the time being in
force, the secured creditor shall be entitled to take
recourse to one or more of the measures specified
under sub-section (4) of section 13 to recover his
secured debt.
…..22/-
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(4A) [Where-
(i) any person, in an application under sub-section
(1), claims any tenancy or leasehold rights upon
the secured asset, the Debt Recovery Tribunal, after
examining the facts of the case and evidence
produced by the parties in relation to such claims
shall, for the purposes of enforcement of security
interest, have the jurisdiction to examine whether
lease or tenancy,-
(a) has expired or stood determined; or
(b) is contrary to section 65A of the Transfer of
Property Act, 1882; or
(c) is contrary to terms of mortgage; or
(d) is created after the issuance of notice of default
and demand by the Bank under sub-section (2) of
section 13 of the Act; and
(ii) )the Debt Recovery Tribunal is satisfied that
tenancy right or leasehold rights claimed in
secured asset falls under the sub-clause (a) or sub-
clause (b) or sub-clause (c) or sub-clause (d) of
clause (i), then notwithstanding anything to the
contrary contained in any other law for the time
…..23/-
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being in force, the Debt Recovery Tribunal may
pass such order as it deems fit in accordance with
the provisions of this Act.]
(5) Any application made under sub-section (1)
shall be dealt with by the Debts Recovery Tribunal
as expeditiously as possible and disposed of within
sixty days from the date of such
application:Provided that the Debts Recovery
Tribunal may, from time to time, extend the said
period for reasons to be recorded in writing, so,
however, that the total period of pendency of the
application with the Debts Recovery Tribunal, shall
not exceed four months from the date of making of
such application made under sub-section (1).
(6) If the application is not disposed of by the
Debts Recovery Tribunal within the period of four
months as specified in sub-section (5), any party to
the application may make an application, in such
form as may be prescribed, to the Appellate
Tribunal for directing the Debts Recovery Tribunal
for expeditious disposal of the application pending
before the Debts Recovery Tribunal and the
Appellate Tribunal may, on such application, make
an order for expeditious disposal of the pending
application by the Debts Recovery Tribunal.
…..24/-
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(7) Save as otherwise provided in this Act, the
Debts Recovery Tribunal shall, as far as may be,
dispose of the application in accordance with the
provisions of the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 (51 of 1993)
and the rules made thereunder.”
14. Section 34 of the SARFAESI Act oust civil court
jurisdiction. For reference, Section 34 is reproduced as
under:
“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
…..25/-
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Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993).”
15. The above said Section 34 deals with that 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.
The scope of Section 34 was considered by the Hon’ble
Apex court in the case of Mardia Chemicals Limited UOI
and ors, reported in (2004)4 SCC 311 and held that a full
reading of Section 34 shows that the jurisdiction of the
civil court is barred in respect of matters which a Debt
Recovery Tribunal or appellate Tribunal is empowered to
…..26/-
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determine in respect of any action taken “or to be taken in
pursuance of any power conferred under this Act”. That is
to say the prohibition covers even matters which can be
taken cognizance of by the Debt Recovery Tribunal
though no measure in that direction has so far been taken
under sub-section (4) of Section 34. It is further to be
noted that the bar of jurisdiction is in respect of a
proceeding which matter may be taken to the Tribunal.
Therefore, any matter in respect of which an action may
be taken even later on, the civil court shall have no
jurisdiction to entertain any proceeding thereof. The bar
of civil court thus applies to all such matters which may
be taken cognizance of by the Debt Recovery Tribunal,
apart from those matters in which measures have already
been taken under sub-section (4) of Section 34.
16. Various decisions relied upon by the applicant and
the non-applicant are based on the observation of the
…..27/-
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Hon’ble Apex Court in the case of Jagdish Singh vs.
Heeralal and ors supra wherein the Hon’ble Apex Court
extensively dealt with Sections 13, 17 and 34 of the
SARFAESI Act. Section 13 deals with the circumstance of
enforcement of security interest. In view of Section
13(4), in case the borrower fails to discharge his liability
in full within the period specified in sub-section (2), the
secured creditor may take recourse to one or more of the
following measures to recover his secured debt, namely
(a) take possession of the secured assets of the borrower
including the right to transfer by way of lease, assignment
or sale for realising the secured asset; (b) take over the
management of the business of the borrower including
the right to transfer by way of lease, assignment or sale
for realising the secured asset;
Proviso to sub clause (2) of sub section (4) of Section 13
provides that the right to transfer by way of lease,
…..28/-
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assignment or sale shall be exercised only where the
substantial part of the business of the borrower is held as
security for the debt.
Second proviso to sub clause (2) of sub section (4) of
Section 13 states that where the management of whole of
the business or part of the business is severable, the
secured creditor shall take over the management of such
business of the borrower which is relatable to the security
or the debt.
17. Section 17 of the SARFAESI Act deals with the
right of the appeal which states that Any person aggrieved
by any order made by the DRT under Section 17 may also
prefer an appeal to the Appellate Tribunal under Section
18 of the Act.
18. The Hon’ble Apex Court in the case of Jagdish
Singh vs. Heeralal and ors supra interpreted the
…..29/-
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expression “any person” and observed in para Nos.17 and
18 as follows:
“17. The expression ‘any person’ used in Section 17
is of wide import and takes within its fold not only
the borrower but also the guarantor or any other
person who may be affected by action taken under
Section 13(4) of the Securitisation Act. Reference
may be made to the Judgment of this Court in
Satyavati Tondon’s case (supra).
18. Therefore, the expression ‘any person’ referred
to in Section 17 would take in the plaintiffs in the
suit as well. Therefore, irrespective of the question
whether the civil suit is maintainable or not, under
the Securitisatoin Act itself, a remedy is provided
to such persons so that they can invoke the
provisions of Section 17 of the Securitisation Act,
in case the bank (secured creditor) adopt any
measure including the sale of the secured assets,
on which the plaintiffs claim interest.”
…..30/-
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19. Sub-section (2) of Section 17 of the SARFAESI Act
cast a duty on the tribunal to consider whether measures
taken by the the secured creditor for enforcement of
security interest are in accordance with the provisions of
the Act and Rules made thereunder. If, the Debts
Recovery Tribunal, after examining the facts and
circumstances of the case and evidence produced by the
parties, comes to the conclusion that any of the measures
referred to in sub-section (4) of Section 13, taken by the
secured creditor are not in accordance with the provisions
of this Act and the rules made thereunder, and require
restoration of the management of the secured assets to
the borrower. On the other hand, if the tribunal finds that
the recourse taken by a secured creditor under sub-
section (4) of Section 13, is in accordance with the
provisions of this Act and the rules made thereunder,
then, notwithstanding anything contained in any other
…..31/-
Judgment
378 cra77.24
31
law for the time being in force, the secured creditor shall
be entitled to take recourse to one or more of the
measures specified under sub-section (4) of Section 13 to
recover his secured debt.
20. Thus, the right of appeal is provided when any
person besides the borrower or guarantor who is
aggrieved by the action taken by the secured creditor in
view of Section 13(2) or 13(4) of the SARFAESI Act.
21. Here, in the present case, the plaintiff has already
filed an appeal by invoking the provisions of the
SARFAESI Act. One of the contentions raised by the
applicant is that there is express bar under Section 34 as
to the jurisdiction of the civil court. Section 34 of the
SARFAESI Act is having overriding effect. The purpose
behind the establishment of the tribunal is to put the
controversy to resolve between the banks and the
…..32/-
Judgment
378 cra77.24
32
borrowers and any third party who acquired any interest.
They have been conferred jurisdiction by special
legislation to exercise a particular power as provided
under the Act. It cannot assume the role of a court of
different nature which really can grant liberty to initiate
any action against the bank.
22. Thus, the civil court’s jurisdiction is barred so far as
the measures taken by the secured creditor under Sub-
section (4) of Section 13 of the SARFAESI Act against
which an aggrieved person has a right of appeal before
the DRT or the Appellate Tribunal to determine as to
whether there has been any illegal measures taken.
23. This aspect is considered by the Hon’ble Apex
Court in the cases of Standard Chartered Bank vs.
Dharminder Bhohi and ors supra; Jagdish Singh vs.
Heeralal and ors supra; Savita Bhagwantrao Patil and ors
…..33/-
Judgment
378 cra77.24
33
vs. Shyam Pukhraj Asopa and ors supra; Bank of
Rajasthan vs. Suryakant Sukhdeo Gite and ors supra, Axis
Bank Limited vs. Madhav Prasad Aggarwal and ors supra;
State Bank of India vs. Aurelio Jose DA Costa supra;
Bank of Baroda vs. Paramount Conductors Limited supra;
Punjab and Sindh Bank vs. Frontline Corporation Ltd
supra Charu Kishan Mehta vs. Prakash Patel supra;
Union Bank of India vs. M/s.Gnandrum Enterprises supra;
G.Vikram Kumar vs. State Bank of Hyderabad supra,
Smita vs. Jitendra, reported in 2022 DGLS (Bom)
wherein the aspect as to the jurisdiction of the civil court
in view of Section 34 is extensively dealt with. The legal
position settled is that the object of the SARFAESI Act is
very good aiming at reducing “non performing asset”.
The constitutional court had to interpret provisions of the
Act dealing with many complicated issues and keeping in
view the interest of borrowers. Many issues under the
…..34/-
Judgment
378 cra77.24
34
provisions of the SARFAESI Act are settled now. In two
important decisions in the cases of Mardia Chemicals
Limited UOI and ors supra and M/s.Transcore vs. Union
of India and ors, reported in 2007 AIR (SC)712, the
Hon’ble Apex Court has settled the legal position with
regard to the SARFAESI Act. The Hon’ble Apex Court has
settled legal position with regard to the SARFAESI Act and
made the rigor of the SARFAESI Act for recovery of NPAs
effective in letter and spirit. When the statute creating
rights and obligations constituted the form to enforce
them, such special forum ordinarily are considered right
over the above the general law. Section 9 of the CPC
makes the intention of the legislature clear. Civil court
does not have plenary jurisdiction to try all civil suits
unless barred expressly or by necessary implication.
24. It is well settled that Ouster of the jurisdiction is
not to be readily inferred. But, at the same time,
…..35/-
Judgment
378 cra77.24
35
jurisdiction cannot be conferred where there is none.
When the special Statute has provided the adequate or
sufficient alternative efficacious remedy, jurisdiction of
the Civil Court is excluded expressly or by necessary
implication.
25. When the special Statute has provided the
adequate or sufficient alternative efficacious remedy,
jurisdiction of the Civil Court is excluded expressly or by
necessary implication.
26. Section 34 of the SARFAESI Act mentions expressly
that the Civil Court has no jurisdiction to entertain the
Civil Suit in relation to the matter required to be
determined by the Debt recovery Tribunal or the
Appellate Tribunal. The Civil Court cannot grant
injunction against an action under the SURFAESI Act or
its Rules.
…..36/-
Judgment
378 cra77.24
36
27. Section 35 of the SARFAESI Act states about the
non-obstante clause which has overriding effect. If
remedy is available to get the right or obligation
adjudicated under the special Act, the suit would not be
entertained by the Civil Court as it would not lie in the
Civil Court. Plenary jurisdiction of the Civil Court under
general law could be resorted to when the statutory
Authorities/Forum/Tribunal have acted without
jurisdiction or when fundamental principles of the judicial
procedure was not complied with.
28. A Constitution Bench of the Hon’ble Apex Court in
the case of Firm and Illuri Subbayya Chetty and sons vs.
The State of Andhra Pradesh, reported in 1964 AIR SC
322 relied upon the decisions of he case of Privy Council
The Secretary Of State vs Mask And Co., reported in
(1940) 42 BOM LR 767 and Reliegh Investment Co. Ltd.
vs. Governor General in ‘Council’, 1947 AIR (PCO) held
…..37/-
Judgment
378 cra77.24
37
that, “there is a general presumption that there must be a
remedy in the ordinary civil courts to a citizen claiming
that an amount has been recovered from him illegally
and such a remedy could be held to be barred only on
very clear and unmistakable indications to the contrary.
The exclusion of jurisdiction of civil courts to entertain
civil causes will not be assumed unless the relevant
statute contains an express provision to the effect or
leads to a necessary and inevitable implication of that
nature.:
29. The Constitution Bench of the Hon’ble Apex Court
in the case of Lala Ram Swarup and ors vs. Shikar Chand
and anr, reported in 1966 AIR 893 held that the
jurisdiction of the civil courts to deal with civil causes be
excluded by the Legislature by the Special Act which may
dealt with special subject matter, but the exclusion of the
jurisdiction of the civil courts must be made by a statutory
…..38/-
Judgment
378 cra77.24
38
provision which expressly provides for it, or which
necessarily and inevitably leads to that inference.
However, the said bar would not be relevant if the plea
before the civil court goes to the root of the matter and if
upheld, leads to the conclusion that the impugned order
is a nullity.
30. The Hon’ble Apex Court in the case of Punjab and
Sindh Bank vs. Frontline Corporation Ltd. supra, relied
upon by the applicant, by taking into consideration catena
of decisions observed in para No.12 that, the issue as to
the exclusion of the jurisdiction of a civil court is no more
res integra. The provisions of Section 34 of the SARFAESI
Act have been considered by a Bench of three Judges of
this Court in the case of Mardia Chemicals Limited and
Others v. Union of India and Others supra. It will be
relevant to refer to the following observations of this
Court in the said case
…..39/-
Judgment
378 cra77.24
39
“50. It has also been submitted that an appeal is
entertainable before the Debts Recovery Tribunal
only after such measures as provided in sub-section
(4) of Section 13 are taken and Section 34 bars to
entertain any proceeding in respect of a matter
which the Debts Recovery Tribunal or the Appellate
Tribunal is empowered to determine. Thus before
any action or measure is taken under sub-section
(4) of Section 13, it is submitted by Mr Salve, one
of the counsel for the respondents that there would
be no bar to approach the civil court. Therefore, it
cannot be said that no remedy is available to the
borrowers. We, however, find that this contention
as advanced by Shri Salve is not correct. A full
reading of Section 34 shows that the jurisdiction of
the civil court is barred in respect of matters which
a Debts Recovery Tribunal or an Appellate Tribunal
is empowered to determine in respect of any action
taken “or to be taken in pursuance of any power
conferred under this Act”. That is to say, the
prohibition covers even matters which can be
taken cognizance of by the Debts Recovery
Tribunal though no measure in that direction has
…..40/-
Judgment
378 cra77.24
40
so far been taken under sub-section (4) of Section
13.”
31. The Division Bench of this Court in the case of
Bank of Baroda, thr.its Branch Manager vs. Gopal Shriram
Panda and anr supra wherein the reference was made for
answering the following question:
Whether the jurisdiction of the civil court to decide
all the matters of civil nature excluding those to be tried
by the DRT under Section 17 of the SARFAESI Act in
relation to enforcement of security interest of secured
creditor is barred by Section 34 of the SARFAESI Act and
while answering the same, observed that:
(A) Jurisdiction of the Debts Recovery Tribunal, to
decide all matters relating to Sections 13 and 17 of the
SARFAESI Act, is exclusive.
…..41/-
Judgment
378 cra77.24
41
(B) In all cases, where the title to the property, in
respect of which a ‘security interest’, has been created in
favour of the Bank or Financial Institution, stands in the
name of the borrower and/or guarantor, and the borrower
has availed the financial assistance, it would be only the
DRT which would have exclusive jurisdiction to try such
matters, to the total exclusion of the Civil Court. Any
pleas as raised by the borrowers or guarantors, vis-a-vis
the security interest, will have to be determined by the
DRT.
(C) The jurisdiction of the Civil Court to decide all
the matters of civil nature, excluding those to be tried by
the Debts Recovery Tribunal under Sections 13 and 17 of
the SARFAESI Act, in relation to enforcement of security
interest of a secured creditor, is not barred by Section 34
of the SARFAESI Act.
…..42/-
Judgment
378 cra77.24
42
(D) Where civil rights of persons other than the
borrower(s) or guarantor (s) are involved, the Civil Court
would have jurisdiction, that too, when it is prima facie
apparent from the face of record that the relief claimed, is
incapable of being decided by the DRT, under Section 17
of the DRT Act, 1993 read with Sections 13 and 17 of the
SARFAESI Act.
32. Thus, the consistent view in various decisions is
that the civil court’s jurisdiction is completely barred so
far as measures taken by the secured creditor under Sub-
section (4) of Section 13 of the SARFAESI Act against
which an aggrieved persons has right of appeal before
DRT or the Appellate Tribunal to determine as to whether
there has been any illegality in the measures taken.
33. The Bank in the instant case has proceeded only
against the secured assets of the borrowers on which the
…..43/-
Judgment
378 cra77.24
43
plaintiff has claimed the rights on the basis of agreement
to sale executed in his favour before creating security
interest in respect of the secured assets.
34. Looking to the entire purpose and object of the Act,
it is evident that the Act provides for various remedies to
the secured creditors for recovery of the dues. An
effective remedy of the application to DRT is also
provided to the aggrieved person under Section 17(1) of
the Act and as per Section 34 of the Act therefore the
jurisdiction of the civil court is expressly barred in respect
of any matter which the DRT is empowered to determine.
It is also specifically provides that no injunction can be
granted by any court in respect of any action taken in
pursuance of any act due to the Banks and Financial
Institutions Act. As observed earlier, Section 35 of the Act
shall have overriding effect, on provisions of any other
law time being in force. Thus, it can be seen that the
…..44/-
Judgment
378 cra77.24
44
SARFAESI Act is complete code in itself which provides
effective measures for the banks and financial institutions
to recover their dues without intervention of the court
and adequate remedies are also provided in the Act itself
to the persons aggrieved by those measures.
35. Thus, consistent view is that the civil court has no
jurisdiction to entertain the suit as far as the action or
measures taken by the financial institutions are
concerned. Even, the Division Bench of this court in the
case of Bank of Baroda, thr.its Branch Manager vs. Gopal
Shriram Panda and anr supra, while considering the
reference on question Whether the jurisdiction of a Civil
Court to decide all the matters of civil nature, excluding
those to be tried by the Debts Recovery Tribunal under
Section 17 of the Securitisation Act, in relation to
enforcement of security interest of a secured creditor, is
barred by Section 34 of the Securitisation Act, held that
…..45/-
Judgment
378 cra77.24
45
the jurisdiction of the Civil Court to decide all the matters
of civil nature, excluding those to be tried by the Debts
Recovery Tribunal under Sections 13 and 17 of the
SARFAESI Act, in relation to enforcement of security
interest of a secured creditor, is not barred by Section 34
of the SARFAESI Act. Thus, in the reference, the Division
Bench of this court clarified that excluding the issue lies
under Sections 13 and 17 of the SARFAESI Act cannot be
questioned as it is barred under Section 34 of the
SARFAESI Act.
36. While considering the interpretation of “barred by
any law” the Hon’ble Apex Court in Prem Lala Nahata and
anr vs. Chandi Prasad Sikaria, reported in (2007)2 SCC
551 held that, “Order VII Rule 11 (d) speaks of the suit
being “barred by any law”. According to the Black’s Law
Dictionary, bar means, a plea arresting a law suit or legal
claim. It means as a verb, to prevent by legal objection.
…..46/-
Judgment
378 cra77.24
46
According to Ramanatha Aiyar’s Law Lexicon, ‘bar’ is that
which obstructs entry or egress; to exclude from
consideration. It is therefore necessary to see whether a
suit bad for misjoinder of parties or of causes of action is
excluded from consideration or is barred entry for
adjudication. As pointed out already, on the scheme of the
Code, there is no such prohibition or a prevention at the
entry of a suit defective for misjoinder of parties or of
causes of action. The court is still competent to try and
decide the suit, though the court may also be competent
to tell the plaintiffs either to elect to proceed at the
instance of one of the plaintiffs or to proceed with one of
the causes of action. On the scheme of the Code of Civil
Procedure, it cannot therefore be held that a suit barred
for misjoinder of parties or of causes of action is barred by
a law. This may be contrasted with the failure to comply
with Section 80 of the Code. In a case not covered by sub-
…..47/-
Judgment
378 cra77.24
47
section (2) of Section 80, it is provided in sub-section (1)
of Section 80 that “no suit shall be instituted”. This is
therefore a bar to the institution of the suit and that is
why courts have taken the view that in a case where
notice under Section 80 of the Code is mandatory, if the
averments in the plaint indicate the absence of a notice,
the plaint is liable to be rejected. For, in that case, the
entertaining of the suit would be barred by Section 80 of
the Code. The same would be the position when a suit hit
by Section 86 of the Code is filed without pleading the
obtaining of consent of the Central Government if the suit
is not for rent from a tenant.”
37. By applying these principles, if the facts and the
pleadings of the present case are taken into consideration,
it reveals that by the suit, the plaintiff has challenged
notice issued by the present applicant for possession of
the suit property. Thus, admittedly, the measures taken
…..48/-
Judgment
378 cra77.24
48
by the applicant against the borrower is challenged by the
plaintiff by filing the suit. In the suit, in fact, no prayer is
made against the present applicant.
38. As far as the cause of action raised by the plaintiff
is that the present applicant has issued the notice of
possession against borrower and the plaintiff has also
challenged the execution of the sale deed in favour of
defendant No.3 by the defendant No.1 when the
agreement of sale was executed in his favour. As
observed earlier, the plaintiff has an alternative remedy to
challenge the action of the present applicant by invoking
the provisions under Section 17 of the SARFAESI Act.
39. The expression ‘any person’ used in Section 17 is of
wide import and takes within its fold not only the
borrower but also the guarantor or any other person who
may be affected by action taken under Section 13(4) of
…..49/-
Judgment
378 cra77.24
49
the Securitisation Act. Reference may be made to the
Judgment of this Court in United Bank of India vs.
Satyavati Tondon and ors, reported in (2010)8 SCC 110
case. Thus, while interpreting the expression “any
person” referred to in Section 17, the Hon’ble Apex Court
held that besides the borrower and guarantor any other
person who affected by action or measures taken under
Section 13(4) of the SARFAESI Act can challenge the
legality or illegality of the action before the DRT or the
Appellate Tribunal as Section 17 confers right of appeal to
any person if that person is aggrieved by any or measures
referred to in Sub-section (4) of Section 13 of the
SARFAESI Act taken by the secured creditor.
40. In the present case, the plaintiff has already filed
an appeal under Section 17 before the Appellate Aribunal
or DRT.
…..50/-
Judgment
378 cra77.24
50
41. The application has been filed by the applicant
under Order VII Rule 11 of the CPC on the ground that no
cause of action arose and the suit is barred in view of
Section 34 of the SARFAESI Act.
42. In view of the above discussion, admittedly,
jurisdiction of the civil court is barred under Section 34 of
the SARFAESI Act when the action of taking measures
under Section 13 are challenged. The consistent view is
that civil court’s jurisdiction is completely barred so far as
measures taken by a secured creditor under Sub-section
(4) of Section 13 of the SARFAESI Act is concerned
against which an aggrieved person has right of appeal
before the DRT or the Appellate Tribunal to determine
whether there has been illegality in the measures taken.
43. Under Order VII Rule 11 of the CPC, duty casts
upon a court to determine whether the plaint discloses a
…..51/-
Judgment
378 cra77.24
51
cause of action by scrutinizing the averments in the plaint
read in conjunction with the documents relied upon or
whether the suit is barred by any law. While considering
an application, under Order VII Rule 11 of the CPC, it is
not only the plaint averments but also the documents
annexed with the plaint can be looked into for the
purposes of determining whether requirements under
Order VII Rule 11 of the CPC are satisfied. The logic on
which it is based appears to be that the documents
annexed with the plaint are relied upon by the plaintiff
for the purposes of the plaint averments and thus formed
an integral part of the plaint. The matter, therefore, has
to be viewed in the light of the above legal position.
Even, the decision in Eldeco Housing and Industries
Limited vs. Ashok Vidyarthi and ors supra relied upon by
learned counsel for the plaintiff also by referring various
judgments held that the law applicable for deciding an
…..52/-
Judgment
378 cra77.24
52
application under Order VII Rule 11 of the CPC was
summoned up by this court in Dahiben vs. Arvindbhai
Kalyanji Bhanusali (Gajra), dead through legal
representatives and others , reported in AIR 2020 SC
3310. The remedy under Order VII Rule11 CPC is an
independent and special remedy where the court is
empowered to summarily dismiss the suit at the threshold
without proceeding to record evidence and conducting
trial on the basis of the evidence adduced, if it is satisfied
that the action should be terminated on any of grounds
contained in this provision.
44. The decision in Bank of Rajasthan Limited vs. VCK
Shares and Stock Broking Services Limited, relied upon by
learned counsel for the plaintiff, is not helpful as the same
is not identical with the present case.
…..53/-
Judgment
378 cra77.24
53
45. Now, only question whether the plaint can be
rejected against some of the defendants or it is to be
rejected as a whole.
46. In Sejal Glass Limited vs. Navilan Merchants
Private Limited, reported in (2018)11 SCC 780 and
Madhav Prasad Aggarwal and anr vs. Axis Bank Ltd. and
anr supra wherein it is held that it is not permissible to
reject plaint qua any particular portion of a plaint
including some of defendants and continued the same
against the others.
47. In the case of The Church of Christ Charitable Trust
& Educational Charitable Society, represented by its
Chairman vs. M/s.Ponniamman Educational Trust
represented by its Chairperson/Managing Trustee,
reported in (2012)8 SCC 706 which is a prior decision of
Madhav Prasad Aggarwal and anr vs. Axis Bank Ltd. and
…..54/-
Judgment
378 cra77.24
54
anr supra wherein the Hon’ble Apex Court had ruled that
the plaint as a whole can be rejected against some of
defendants in terms of Order VII Rule 11 of the CPC. On
going through the decision in the case of The Church of
Christ Charitable Trust & Educational Charitable Society
supra it is ruled that a plaint as a whole can be rejected
against some of defendants. The said decision was
rendered by two judges bench of the Hon’ble Apex Court.
The later decision in Madhav Prasad Aggarwal and anr
supra is also rendered by two Judges bench of the Hon’ble
Apex Court wherein the earlier decision in the case of The
Church of Christ Charitable Trust & Educational
Charitable Society supra was not considered. In this
context, the Hon’ble Apex Court in the case of Sundeep
Kumar Bafna vs. State of Maharashtra and anr, reported
in (2014)16 SCC 623 observed that he decision rendered
by co-equal bench or larger bench earlier in time would
…..55/-
Judgment
378 cra77.24
55
prevail. The relevant observations in this regard are as
follows:
The Constitution Bench in Union of India vs.
Raghubir Singh, 1989(2) SCC 754, has come to the
conclusion extracted below:
“27. What then should be the position in regard to
the effect of the law pronounced by a Division
Bench in relation to a case raising the same point
subsequently before a Division Bench of a smaller
number of Judges? There is no constitutional or
statutory prescription in the matter, and the point is
governed entirely by the practice in India of the
courts sanctified by repeated affirmation over a
century of time. It cannot be doubted that in order
to promote consistency and certainty in the law laid
down by a superior Court, the ideal condition
…..56/-
Judgment
378 cra77.24
56
would be that the entire Court should sit in all
cases to decide questions of law, and for that reason
the Supreme Court of the United States does so.
But having regard to the volume of work
demanding the attention of the Court, it has been
found necessary in India as a general rule of
practice and convenience that the Court should sit
in Divisions, each Division being constituted of
Judges whose number may be determined by the
exigencies of judicial need, by the nature of the
case including any statutory mandate relative
thereto, and by such other considerations which the
Chief Justice, in whom such authority devolves by
convention, may find most appropriate. It is in
order to guard against the possibility of
inconsistent decisions on points of law by different
Division Benches that the Rule has been evolved, in
…..57/-
Judgment
378 cra77.24
57
order to promote consistency and certainty in the
development of the law and its contemporary
status, that the statement of the law by a Division
Bench is considered binding on a Division Bench of
the same or lesser number of Judges. This principle
has been followed in India by several generations of
Judges. …”
48. In view of the foregoing settled position of law, I
am of the view that earlier decision rendered by the
Hon’ble Apex Court in the case of The Church of Christ
Charitable Trust & Educational Charitable Society supra
needs to be followed which has laid down that the plaint
as a whole can be rejected against some of defendants.
This position has also been considered by the Division
Bench of this Court in the case of Sheela Ram Vidhani and
ors vs. S.K.Trading Company and ors, reported in 2021(4)
ABI 713.
…..58/-
Judgment
378 cra77.24
58
49. Looking to the entire purpose and object of the Act,
it is evident that the Act provides various remedies to the
secured creditor for recovery of dues. An effective
remedy of making an application to DRT or the appellate
tribunal is also provided to the aggrieved persons under
Section 17 of the SARFAESI Act and as per Section 34 of
the Act, the jurisdiction of the civil court is expressly
barred in respect of any matter which DRT is empowered
to determine. It also specifically provides that no
injunction can be granted by any court in respect of any
action taken in pursuance of the Act under the The
Recovery of Debts Due to Banks and Financial Institutions
Act, 1993. Section 35 of the Act further provides that the
provisions of the SARFAESI Act shall have overriding
effect. The provisions of this Act shall have effect,
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.
…..59/-
Judgment
378 cra77.24
59
50. Thus, it can be seen that the SARFAESI Act is
complete self contained code in itself, which provides
effective measures for the banks and financial institutions
to recover their dues without intervention of the courts
and adequate remedies are also provided in the act itself
to the persons aggrieved by those measures.
51. The facts of the present case, if taken into
consideration, by which the action of the present
applicant is questioned, learned trial court has not
considered this aspect and rejected the application. The
settled position of law laid down by the Hon’ble Apex
Court and now the issue as to the exclusion of jurisdiction
of the civil courts is no more res integra.
52. Learned counsel counsel appearing for the
applicant bank is justified in contending that in what
essence the challenge raised by the plaintiff is the action
…..60/-
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378 cra77.24
60
undertaken by the applicant under Section 13(4) of the
SARFAESI Act. The question as to whether the action
taken is legal or not can clearly be agitated under Section
17 of the SARFAESI Act which the court below completely
failed to consider while passing the impugned order. The
trial court also failed to consider the words used in
Section 34 of the SARFAESI Act which states that no civil
courts shall have jurisdiction to entertain any suit or
proceeding in respect of any matter, which the tribunal is
empowered to entertain under the provisions of the
53. In the present case, the nature of grievances sought
to be raised by the non-applicant could have been
agitated only under Section 17 of the SARFAESI Act and
the DRT and Appellate Tribunal have powers to grant
relief to the plaintiff. The plaintiff has already filed
appeal before the said tribunal and, therefore, no cause of
…..61/-
Judgment
378 cra77.24
61
action arose to the plaintiff to proceed against the present
applicant. Whether the action taken by the applicant was
not in consonance with the provisions of the SARFAESI
Act and the rules framed thereunder, the tribunal has
power to grant relief to the plaintiffs.
54. As observed earlier, applying the law laid down by
the Hon’ble Apex Court in the case of The Church of
Christ Charitable Trust & Educational Charitable Society
supra to the facts of the present case and accepting the
contentions raised by the applicant which is justified and
amounts to rejection of plaint as a whole, it cannot be
said that the plaint is being split and that only a part of
plaint is being rejected which is not permitted.
55. In view of the above, the impugned order passed
by the trial court is unsustainable. As such, following
order is passed:
…..62/-
Judgment
378 cra77.24
62
ORDER
(1) The Civil Revision Application is allowed.
(2) The order impugned passed by learned 8 th Joint Civil
Judge Senior Division, Nagpur in SCS No.1040/2023
below Exh.15 by which application for rejection of plaint
under Order VII Rule 11 of the CPC which is rejected by
order dated 1.11.2023 is quashed and set aside.
(3) The application filed by the applicant under Order VII
Rule 11 of the CPC for rejection of the plaint is allowed to
the extent of applicant-defendant No.4.
The Civil Revision Application stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 02/04/2025 11:14:48
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