Delhi District Court
Sh. Amit Pahwa vs State Bank Of India on 30 July, 2016
IN THE COURT OF SH. SHAILENDER MALIK:ADJ
16(CENTRAL) TIS HAZARI COURTS: DELHI
Suit No. 413/16/04
New No. 612345/16
In the matter of :
Sh. Amit Pahwa
S/o Shri N. M. Pahwa
24, Furniture Block,
Kirti Nagark, New Delhi. ..... Plaintiff
Vs.
1. State Bank of India
South Extension, PartI
New Delhi,
Through its Branch Manager
2. State Bank of India
Parliament Street,
New Delhi
Through it Gen. Manager
3. Shri Ashok Parida
147, Malviya Nagar
New Delhi
CS No.413/16/2004 Page No. 1/23
4. Smt. Neelima Bagaria
W/o Shri Saroj Bagaria
F2/3, Okhla Industrial Area
Phase - I, New Delhi
5. Standard Chartered Bank
Narain Manzil
23, Barakhamba Road
New Delhi - 110001 ....Defendants
JUDGMENT
1 By this order I proposed to adjudicate upon following preliminary issues:
1. Whether the suit of the plaintiff is not maintainable under Section 18 of "recovery of Debt due to bank and Financial Institution Act 1993?"
2. Whether the Civil Court has no jurisdiction to entertain the present suit in view of the provision under Section 17 Read with Section 34 SARAFSI Act?
2 Brief facts necessary for deciding the above mentioned issues are that plaintiff has filed the present suit for relief of declaration, injunction with the claim that he is owner in possession of property bearing No. C4, West End Colony, New Delhi (suit property) having purchased the same from defendant no. 3 Ashok Parida by virtue of registered sale deed dated 18.01.2003. Defendant no. 3 stated to have CS No.413/16/2004 Page No. 2/23 purchased the property from defendant no. 4 Smt. Neelam Bagaria on 10.01.1995. It is mentioned that at the time when Smt. Neelam Bagaria had purchased the property from Ajit Singh s/o Bhishan Singh the property was leasehold property and after completing the formalities, DDA converted the property into freehold and executed a Conveyance Deed dated 18.02.1994. It is stated all the above said chain of documents pertaining to suit property is in possession of plaintiff.
3 It is further mentioned in the plaint that plaintiff after purchasing the property in question when started doing some renovation work in February 2003, he came to know that property has been sealed by Vasant Vihar Police Station by order of Ld. MM. Immediately, thereafter plaintiff stated to have moved to the court of Ld. MM New Delhi, by filing an application, plaintiff was told that said property has already been released from the proceedings, which are pending before Hon'ble DRT as said property has been attached in the proceedings pending before DRT.
4 Upon making inquiries from DRT plaintiff learnt that at request of defendant no. 4 as Director of M/s. Vishal Global Ltd. credit facility was granted by State Bank of India in the year 1999 and to secure the loan, it created charge by way of hypothecation CS No.413/16/2004 Page No. 3/23 over its whole of movable properties and assets and furnished personal guarantee of husband of defendant no. 4 and that as a collateral security it created an equitable mortgage by deposit of title documents of property bearing Plot no. 4 in Block C, Diplomatics Enclave Extension Cooperative Society now know as Westered Colony, New Delhi and she personally visited the branch of Bank on 03.05.1999 to deposit the title documents. The facility was availed by the company and the finance was not repaid and to recover the outstanding amount in the year 2000 suit was filed by the bank and during the pendency of the matter the plaintiff approached the Recovery Officer claiming himself as the owner of the suit property as the same was sold to him by way of registered sale deed dated 18.01.2003 by defendant no. 3 who was Power of Attorney Holder of defendant no. 4. The Recovery Officer vide order dated 27.08.2003 held that it cannot ascertain originality of documents of both the parties and that the said development is beyond his jurisdiction and directed the parties to approach the competent Civil Court for declaration of title vis a vis the said property.
5 After such observations given by the Recovery Officer, proceedings regarding suit property was drop by order dated 27.08.2003. It is though stated that appeal has been preferred by defendant no. 1 & 2 before presiding officer of DRT against the order CS No.413/16/2004 Page No. 4/23 of Recovery Officer. It is alleged by the defendant before the DRT that defendant no. 4 had equitable mortgage suit property with defendant no. 1 on 03.05.1999 by depositing the original title deeds in respect of suit property. Whereas, she had sold the said property to defendant no. 3 on 10.01.1995 by executing sale documents like registered GPA, Agreement to sell, receipt, SPA, affidavit etc. all dt 10.01.1995 and entire consideration amount was paid by defendant no. 3 to defendant no. 4. Thus, it was prayed that by decree of possession, defendant no. 1 & 2 may be given directions to hand over the possession of the suit property to plaintiff , by decree of declaration it be declared that plaintiff is the owner of the suit property, further it be declared that mortgage deed dt 3.05.1999 executed by defendant no. 4 in favour of defendant no. 1 & 2 is not a mortgage and is void as well as not binding on plaintiff. Plaintiff also prayed for injunction to restrain defendants from disturbing the possession of the plaintiff regarding suit property.
6 During the WS on behalf of defendant no. 1 & 2 was filed , taking the objection that suit is not maintainable, Civil Court has no jurisdiction to try the present suit in view of express bar of section 18 of Recovery of Debt due to Banks and Financial Institution Act 1993, otherwise also suit is not maintainable on the Doctrine of Res subjudice because the subject matter of the suit is already pending CS No.413/16/2004 Page No. 5/23 before DRT in Appeal no. 32/03. While taking various other objections, it was also pleaded that plaintiff has no locus to institute the suit as the alleged sale deed on the basis of which plaintiff claims his title in suit property , was already mortgaged by defendant no. 4 with defendant no. 1 & 2 Bank thus, the sale documents executed were void ab initio as suit property was mortgaged for credit facility taken by M/s. Vishal Global Ltd (VGL) by depositing the title deed of the suit property and since VGL failed to maintain financial discipline and defaulted in payment of outstanding amount , a sum of Rs. 7, 37,84,093.13 were outstanding against VGL regarding which recovery proceedings were initiated against VGL as well as guarantor before DRT. It is pleaded that Honble Presiding Officer DRT vide order dt 22.09.2000 had restrained defendant no. 4 i.e. Smt. Neelima Bagaria from disposing off or dealing with the suit property in any manner being a mortgage property. On application of defendant no. 1 & 2 bank being IA No. 584/01, Hon'ble DRT vide order dt 01.11.2001, had passed the order of attachment of mortgaged suit property, information regarding which was published by public notice in newspaper. It is further pleaded that presiding officer, Hon'ble DRT vide order dt 05.06.2002, had already passed final decree/ order in favour of defendant no. 1 & 2 against the certificate debtors being jointly and severally liable for sum of Rs. 7,37,84,093.13/ with pendent lite and future interest @ 17.1% per CS No.413/16/2004 Page No. 6/23 annum with quarterly rests, further ordered that above said sum may be recovered by sale of hypothecated goods / mortgaged property.
7 In the meanwhile, for initiation of recovery proceedings, before Recovery Officer, plaintiff filed the objection which was disposed off by order dt 27.08.2003, whereby Recovery Officer has erroneously come to the conclusion that dispute of title has been created and such developments was held by him to be beyond his jurisdiction. it is stated such order of the Recovery Officer was erroneous and illegal and therefore, defendant no. 1 & 2 have already filed appeal before Hon'ble presiding officer DRTI, under Section 30 of DRT Act 1993 wherein Hon'ble Presiding officer had already stayed the operation of order dt 27.08.03 passed by Recovery Officer. Therefore, the alleged sale deed of mortgaged property by defendant no. 3 in favour of plaintiff is void and illegal and no legal right has been created in favour of plaintiff. Moreover, in view of the provisions of Section 16 of Second Schedule of Income Tax Act 1961, law is well settled that alleged sale of property after the attachment order passed by the DRT, in respect of claims of defendant banks is void.
8 Defendant no. 3 & 4 did not contest the suit and thus were proceeded exparte. During the pendency of the proceedings , issues CS No.413/16/2004 Page No. 7/23 were framed on 12.07.2006. Ld. Predecessor of this court vide order dt 14.12.2004, dismissed the application of plaintiff filed under order 39 Rule 1 & 2 CPC. Reference regarding this order is necessary because in that order ld. Predecessor of this court, gave a specific conclusion that jurisdiction of civil court is barred in view of provisions of section 17 r/w section 18 of DRT Act 1993. Although, at that stage no specific preliminary issue on the question of maintainability of the suit was framed. It is also matter of record that during the pendency of the suit, an application under order 1 Rule 10 CPC was moved with the prayer for bringing on record the Standard Chartered Bank as defendant no. 1 & 2 stated to have executed a deed of assignment dt 29.03.2006 whereby their debts due from M/s. VGL with all rights and interest in security were assigned in favour of Standard Chartered Bank. Vide order dt 01.05.2015, Standard Chartered Bank was also impleaded as party being defendant no. 5.
9 Defendant no. 5 filed the WS taking similar objections as were taken on behalf of defendant no. 1 & 2, and has pleaded that present suit is abuse of process of law. While pleading that suit is not maintainable and while giving reference of previous background of the facts leading to passing of order dt 27.08.2003 by the Recovery Officer on the objections filed by plaintiff under Rule 11 of Second CS No.413/16/2004 Page No. 8/23 Schedule of Income Tax Act 1961, it is stated that said order dt 27.08.03, of presiding officer has already been quashed in Appeal no. 32/03 by Hon'ble Presiding officer DRT. Moreover, plaintiffs herein had preferred Appeal bearing MA No. 52/06 before Hon'ble DRAT challenging the order dt 13.10.2005 of DRT. However, Hon'ble DRAT, without interfering with order dt 13.10.2005, has remanded the matter vide order dt 24.04.2006, giving directions to the Recovery Officer to examine the correctness of the rival contentions of the parties and investigate the matter in terms of Rule 11 of Second Schedule of Income Tax Act. Moreover, as per the directions given by Hon'ble DRAT Recovery Officer has already rejected the claim of the plaintiff over the suit property vide order dt 12.02.14, holding the claim / objections of the plaintiff to be devoid of merits. It is stated that Recovery Officer has specifically concluded that documents of title as relied upon by the plaintiff appears to be forged, Recovery Officer also found that alleged purchase of suit property by objector on meager prices of Rs.10 lacs, in respect of property situated in plush area of Delhi create doubt. Moreover, objector / plaintiff herein failed to produce the original documents. It is stated that Recovery Officer while dismissing the objection had also imposed cost of Rs. 1 lacs. It is stated that order dt 12.02.14, of Recovery Officer has also been challenged in appeal no. 03/14, before DRT by the plaintiff. Said appeal is also stated to be pending disposal and DRT is already CS No.413/16/2004 Page No. 9/23 seized off the matter and therefore the civil court has no jurisdiction to entertain the suit.
10 Another application was moved under Order 39 Rule 1 & 2 CPC by plaintiff which was also dismissed by Ld. Predecessor of this court vide order dt 19.10.15. This court vide order dt 21.04.16, taking into account the pleadings as come on record and considering the specific objection taken on behalf of defendant no. 1, 2 & 5 had framed the issues under consideration and taken up them as preliminary issue.
11 I have heard ld. Counsels for the parties and has gone through the record carefully. Before we examine the facts, we need to understand the legal history of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 as well as Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 , to examine the maintainability of the suit. With a view to give impetus to the industrial development of the country, the Central and State Governments encouraged the Banks and other financial institutions to formulate liberal policies for grant of loans and other financial facilities to those who wanted to set up new industrial units or expand the existing units. Many hundred thousand took advantage of easy financing by the Banks and other CS No.413/16/2004 Page No. 10/23 financial institutions but a large number of them did not repay the amount of loan, etc. Due to lack of adequate infrastructure and non availability of manpower, the Regular Courts could not accomplish the task of expeditiously adjudicating the cases instituted by Banks and other financial institutions for recovery of their dues. As a result, several hundred crores of public money got blocked in unproductive ventures. Government of India therefore constituted a committee to examine the legal and other difficulties faced by Banks and financial institutions in the recovery of their dues and suggest remedial measures.
12 Tiwari Committee noted that the existing procedure for recov ery was very cumbersome and suggested that Special Tribunals be set up for recovery of the dues of Banks and financial institutions by following a summary procedure. The Tiwari Committee also pre pared a draft of the proposed legislation which contained a provision for disposal of cases in three months and conferment of power upon the Recovery Officer for expeditious execution of orders made by ad judicating bodies. After considering the reports of Tiwari Committee and of Committee on the Financial System headed by Shri M. Narasimham, the Parliament enacted the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'the DRT Act'). The new legislation facilitated creation of specialized Fo CS No.413/16/2004 Page No. 11/23 rums i.e. the Debts Recovery Tribunals and the Debts Recovery Ap pellate Tribunals for expeditious adjudication of disputes relating to recovery of the debts due to Banks and financial institutions. Simul taneously, the jurisdiction of the Civil Courts was barred and all pending matters were transferred to the Tribunals from the date of their establishment.
13 An analysis of the provisions of the DRT Act shows that pri mary object of that Act was to facilitate creation of special machinery for speedy recovery of the dues of Banks and financial institutions. This is the reason why the DRT Act not only provides for establish ment of the Tribunals and the Appellate Tribunals with the jurisdic tion, powers and authority to make summary adjudication of applica tions made by Banks or financial institutions and specifies the modes of recovery of the amount determined by the Tribunal or the Appel late Tribunal but also bars the jurisdiction of all courts except the Supreme Court and the High Courts in relation to the matters speci fied in section 17. The Tribunals and the Appellate Tribunals have also been freed from the following procedure contained in the Code of Civil Procedure. So in other words, the DRT Act has not only brought into existence special procedural mechanism for speedy recovery of the dues of Banks and financial institutions, but also made provision CS No.413/16/2004 Page No. 12/23 for ensuring that defaulting borrowers are not able to invoke the ju risdiction of Civil Courts for frustrating the proceedings initiated by the Banks and other financial institutions.
14 Thereafter, survey conducted by the Ministry of Finance, Gov ernment of India revealed that as in 2001, a sum of more than Rs.1,20,000/ crores was due to the Banks and financial institutions and this was adversely affecting the economy of the country. There fore, the Government of India asked the Narasimham Committee to suggest measures for expediting the recovery of debts due to Banks and financial institutions. In its Second Report, the Narasimham Committee noted that the nonperforming assets of most of the pub lic sector Banks were abnormally high and the existing mechanism for recovery of the same was wholly insufficient. The Andhyarujina Committee constituted by the Central Government for examining Banking sector reforms also considered the need for changes in the legal system. Both, the Narasimham and Andhyarujina Committees suggested enactment of new legislation for securitisation and em powering the Banks and financial institutions to take possession of the securities and sell them without intervention of the court. The Government of India accepted the recommendations of the two com mittees and that led to enactment of the Securitization and Re CS No.413/16/2004 Page No. 13/23 construction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SRFAESI Act'), which can be termed as one of the most radical legislative measures for ensuring that dues of secured creditors including Banks, financial institutions are recovered from the defaulting borrowers without any obstruction.
15 Section 13 of the SRFAESI Act contains detailed mechanism for enforcement of security interest. Section 13 (1) lays down that any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or Tribunal, by such creditor in accordance with the provisions of this Act. Sub section (4) of section 13 specifies various modes which can be adopted by the se cured creditor for recovery of secured debt. The secured creditor can take possession of the secured assets of the borrower and transfer the same by way of lease, assignment or sale for realising the se cured assets. In terms of section 14, the secured creditor can file an application before the Chief Metropolitan Magistrate or the District Magistrate, within whose jurisdiction the secured asset or other doc uments relating thereto are found for taking possession thereof. If any such request is made, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, is obliged to take possession CS No.413/16/2004 Page No. 14/23 of such asset or document and forward the same to the secured credi tor.
16 Section 17 speaks of the remedies available to any person in cluding borrower who may have grievance against the action taken by the secured creditor under Sub section (4) of section 13. Such an aggrieved person can make an application to the Tribunal within 45 days from the date on which action is taken under that sub section. Section 18 provides for an appeal to the Appellate Tribunal. Section 34 lays down that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Tribunal or Appellate Tribunal is empowered to determine. It further lays down that no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken under the SRFAESI Act or the DRT Act. Section 35 of the SRFAESI Act is substantially simi lar to section 34(1) of the DRT Act. It declares that the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.
17 Several writ petitions were filed in the High Courts and Supreme Court questioning validity of this Act, matter was finally CS No.413/16/2004 Page No. 15/23 decided by Hon'ble Apex Court in Mardia Chemicals v. Union of India, (2004) 4 SCC 311 and the validity of the SRFAESI Act was upheld except the condition of deposit of 75% amount enshrined in section 17(2). The Court referred to the recommendations of the Narasimham and Andhyarujina Committees on the issue of constitu tion of Special Tribunals to deal with cases relating to recovery of the dues of Banks etc. Supreme Court then held that the borrower can challenge the action taken under section 13(4) by filing an applica tion under section 17 of the SRFAESI Act and a civil suit can be filed within the narrow scope and on the limited grounds on which they are permissible in the matters relating to an English mortgage en forceable without intervention of the Court.
18 After understanding the background, object & scope of "Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ( 'DRT Act') as well as of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( 'SRFAESI Act'). Coming now to present case, counsel for Plaintiff, in light facts of suit as discussed above, submitted with great amount positivity, that jurisdiction of Civil Court is not out rightly ousted by provisions of Section 17 Of DRT Act, he submits that for adjudication of proprietary rights in a property, can be adjudicated upon by civil Court, while refereing to section 17 it is submitted that this provision CS No.413/16/2004 Page No. 16/23 confers jurisdiction on the DRT to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. It is submitted that this provision does not cover the right of a person to approach civil court for his civil rights in respect of property of which he bona fide purchaser, he submitted that even such facts may have even come in defence in proceedings before recovery officer but those proceedings before recovery officer by itself, do not take away jurisdiction of civil court to adjudicate on these issues. Ld. Counsel has relied upon judgment in Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corporation, (2009) 8 SCC 646, judgment of High Court of Mumbai, Nagpur Branch in "Authorized officer Vs. Shri Sagar and ors. " decided on 11.02.2011.
19 On other hand Ld. Counsel for defendant submitted that jurisdiction of Civil court is expressly barred, specifically when the object of DRT Act is to ensure speedy adjudication & enforcements of recovery claims of banks and financial institutes against creditors, more specifically in present case when the objections of plaintiff here in has already been dismissed by recovery officer and plaintiff is also filing appeal against that order of recovery officer before |DRT and simultaneously pursuing this suit. It is submitted that the spirit of law does not permit the plaintiff to prosecute his claim in two CS No.413/16/2004 Page No. 17/23 parallel judicial proceedings, he submits that provisions of section 17 r/w 18 of DRT Act clearly contemplates consideration of all the objections which can be raised even including claim regarding title , by recovery officer or other forums under the DRT Act and therefore, civil court has been expressedly barred to entertain such suits in respect of secured / mortgaged properties.
20 Having considered the submissions of Ld. Counsels for parties and having considered facts of present case, before I discuss facts of case, I find that scope of section 17 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 vis a vis jurisdiction of civil court to entertain the suit, has been considered by High Court in Radnik Exports Vs Standard Chartered Bank 211 (2014) DLT 436, wherein it was held that section 17 has the jurisdiction, power and authority to decide on the defence to an application for recovery of debt filed before it. Once the DRT is held to have such a power, the jurisdiction of the Civil Court to declare existence of a state of affairs which is a defence to a claim before the DRT, has to be necessarily held to be barred. Hon'able High Court has observed as:
"The preamble to the DRT Act describes the same as "an Act to provide for the establishment of tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions CS No.413/16/2004 Page No. 18/23 and for matters connected therewith or incidental thereto"; Section 3 thereof provides for establishment of tribunals to be known as DRTs, to exercise the jurisdiction, power and authority conferred thereon by the Act. Section 17 provides that such a tribunal shall exercise the jurisdiction, power and authority to entertain and 'decide' applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. Section 18 provides that no Court or other authority shall have or be entitled to exercise any jurisdiction, powers or authority in relation to the matters specified in Section 17. Section 19, while laying down the procedure to be followed by the DRTs, in sub Section (1) thereof provides for filing of an application by the bank or the financial institution which has to recover any debt from any person; in Sub Section (4) thereof provides for issuance of notice to show cause by the DRT to the person from whom recovery is sought, as to why the relief of recovery prayed for should not be granted; Sub Section (5) thereof provides for such person from whom recovery is sought to present a written statement of his defence; Sub Section (20) thereof provides for passing of a final order by the DRT on such application of the bank for recovery, after giving the applicant bank and the defendant an opportunity of being heard..... From the procedure prescribed in Section 19, to be followed by the DRT, it is evident that the DRT, in adjudication/decision of the applications of the bank/financial institution for recovery of debts, while deciding on the entitlement of the bank/financial institution to such debt is to also CS No.413/16/2004 Page No. 19/23 adjudicate/decide the cause shown by the defendant in such application, of the bank/financial institution being not entitled to the relief of recovery sought. If the DRT were to be not authorized, or to not have jurisdiction or power or authority to decide on such defence of the defendant to an application for recovery filed before it, Sub Sections (4) and (5) of Section 19 would not have provided for issuance of a notice to show cause to such a defendant or for filing of a written statement/defence by such defendant and passing of an order on the application for recovery only thereafter....The use in Section 17(1) of the Act of the words "decide applications from the banks and financial institutions for recovery of debts due" entails, in the light of the aforesaid provisions of Section 19 a decision also on the defence raised to such applications. This is further reenforced from Subsections (6) and (8) of Section 19 which permit a defendant to such an application, to besides presenting his defence, also claim a setoff or make a counterclaim and from Subsections (7) and (9) which provide for such set off and counterclaim to be having the same effect as a cross suit and which require the DRT to pass a final order not only on the claim of the bank but also on the setoff or counterclaim of the defendant to such an application. This is yet further fortified from Section 20 providing for appeals to the DRAT not only by the bank but also by any person aggrieved from the order of the DRT. If the DRT were not to adjudicate and decide of the defence of the defendant to the application for recovery of debt, there would have been no need to provide for an appeal to the DRAT by such CS No.413/16/2004 Page No. 20/23 a defendant."
21 Thus, it is clear that civil court has no jurisdiction on issues already raised before recovery officer & decided upon. So far as judgment of Hon'ble Apex Court in Nahar Industrial Enterprises Ltd. (SUPRA) now doubt in that case, it was held that plaintiff being dominus litus may institute a suit, and civil court is not barred to entertain a suit of civil nature and a person who is not the debtor can maintain a suit before civil court, but it must be kept in mind that facts of that case were altogether different as in that case, Hon'ble Supreme Court was considering the issue as to whether High Court of Supreme Court has power to transfer a suit pending in a civil court of one state to DRT situated in another state. In that case, High Court on application moved by bank , while exercising the power under section 24 of CPC, transferred a civil suit to DRT before which bank had already initiated recovery proceedings on the basis of same agreements / transactions. Reading the judgment of Apex Court in Nahar's case would clearly indicate that Hon'ble Supreme Court was not considering the question of maintainability of civil suit vis a vis bar of section 18 of DRT Act. Therefore, that judgment of Hon'ble Supreme Court is of no help to counsel for the plaintiff in the present case. Similarly , the another judgment of Nagpur Bench of High Court of Mumbai in Authorized Officer vs. Shri Sagar CS No.413/16/2004 Page No. 21/23 (SUPRA) , is also distinguishable in the factual and legal context.
In that case, issue as to maintainability of the suit under section 34 of SRFAESI ACT 2002 , in that case, it was held while discussing the provisions of act of 2002 and also considering the judgment of Apex Court in Mardia Chemicals Ltd.'s case that in certain aspects, civil court has jurisdiction to entertain the suit. Apparently, the observation given on that judgment were altogether on a different context and thus can be of no help for plaintiffs in the present suit.
22 Moreover, the present suit was filed precisely on the basis of findings given by the Recovery Officer earlier vide his order dt 27.08.2003, when Recovery officer concluded that issue regarding title raised by the plaintiff in that objection is beyond his jurisdiction and same can be seen only by the civil court. Such findings of the recovery officer has already been quashed by DRT in appeal no. 32/03 vide order dt 13.10.2005 and such order of DRT has been upheld even by DRAT vide order dt 20.04.2006, whereby recovery officer was given directions to examine the correctness of claims made by plaintiff in his objections before Recovery officer. Recovery officer has already dismissed the objections of the plaintiff vide order dt 12.02.14, specifically holding the documents of title relied upon by the plaintiff in support of his objections (as they have been relied upon in the present suit also) appears to be forged. Even if the CS No.413/16/2004 Page No. 22/23 findings rendered by Recovery Officer vide order dt 12.02.14 are challenged by way of appeal no. 03/14, before DRT, this court cannot be over and above the jurisdiction of DRT when matter is already seized before Hon'ble DRT thus I find the present suit is not maintainable before the civil court and therefore, present suit is barred by section 18 of DRT Act 1993, as well as section 34 of SRFAESI ACT 2002. Both the issues thus decided against the plaintiff and suit is held to be not maintainable.
ANNOUNCED IN THE (SHAILENDER MALIK)
OPEN COURT ON ADJ16 (CENTRAL)
30.07.2016 TIS HAZARI COURTS:DELHI
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