Gujarat High Court
Jigna vs Bank on 28 January, 2010
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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SCA/14/2010 6/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14 of 2010
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JIGNA
MANOJBHAI TANTI - Petitioner(s)
Versus
BANK
OF BARODA & 3 - Respondent(s)
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Appearance :
Ms.Sangeeta
Pahwa for MR TEJAS P SATTA for Petitioner(s) :
1,
MS NALINI S LODHA for Respondent(s) : 1 - 2.
None for
Respondent(s) : 3 -
4.
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 28/01/2010
ORAL
ORDER
1. I have heard Ms.Sangeeta Pahwa,learned counsel for the petitioner and Ms.Nalini S.Lodha, learned counsel for the Caveators(respondents Nos.1 and 2). It is submitted by Ms.Sangeeta Pahwa, learned counsel for the petitioner that the petitioner is an unmarried daughter staying in the ancestral property, being a residential house, with her father. The father of the petitioner, against her will and consent has mortgaged the said ancestral property to the respondent No.1 and proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short The Securitisation Act ) have been initiated. The petitioner filed a Suit stating that she has a share in the undivided property as an unmarried daughter under Hindu law,and, therefore, no action be taken, and the possession of the petitioner in the residential property be not snatched away. It is further contended by Ms.Sangeeta Pahwa that the question to be decided is one flowing from the rights of the petitioner under Hindu law, as the partition of the joint family property has not been carried out. However, the application at Exh.5 filed by the petitioner has been rejected by the Trial Court by passing order dated 5-11-2009, which order has been confirmed by the lower Appellate Court by the impugned judgment and order dated 21-12-2009. It is submitted by the learned counsel for the petitioner that both the impugned orders of the courts below are erroneous, inasmuch as the application of the petitioner has been thrown out solely on the ground that the Civil Court lacks jurisdiction, in view of the provisions of Section 34 of the Securitisation Act, whereas it is stated in the said provision of law that the Debts Recovery Tribunal('DRT' for short) or the Appellate Tribunal is empowered under the Securitisation Act, to determine a question in respect of matters specified in the provisions of the Act which does not include rights under Hindu law. Referring to the provisions of Section 17(3) and Section 13(4) of the Securitisation Act, the learned counsel for the petitioner has submitted that the DRT can entertain or is empowered to determine, issues provided for in the Securitisation Act and not under the Hindu law and for this purpose, the DRT would not have any jurisdiction, as the Civil Court is the only forum that can adjudicate upon and determine this question. From the provisions of the Securitisation Act it is clear that the DRT or the Appellate Tribunal are not empowered to adjudicate upon issues arising out of rights flowing from Hindu law. Referring to the plaint filed by the petitioner, it is submitted by Ms.Sangeeta Pahwa that, at several places, namely paragraph Nos.3,4,5,6 and 12, to name a few, the petitioner has clearly stated that she has filed the suit as a member of a joint Hindu family, in respect of her right of one-third share in the residential premises, and her right of residence and the prayers in the plaint, more specifically the prayer No.3 which is to the effect that the petitioner may not be dispossessed by the respondents Nos.1 and 2, have been made in this context. In support of the above submissions, the learned counsel for the petitioner has placed reliance upon the following judgments:
(a) Vysya Co-operative Bank Ltd. v. Ms.G.Keerthana and others, AIR 2008 Karnataka 25
(b) Dena Bank v. Shri Sihor Nagarik Sahakari Bank Ltd. and others, 2008(2) GLH 218 1.1 Referring to the judgment in Dena Bank v. Shri Sihor Nagarik Sahakari Bank Ltd. and others (Supra), it is submitted by the learned counsel for the petitioner, that the case of the petitioner herein is on a better footing as in that judgment, the petitioner was a tenant, whereas, in the present case, the petitioner is a coparcener of the suit property and has been staying in the suit property from her birth. Referring to the impugned order of the Trial Court, the learned counsel for the petitioner has emphatically stated that the Trial Court, at the initial stage of the Exh.5 application, has recorded findings that could only have been arrived at, during the final decision of the suit. The findings recorded in paragraphs 12 and 13 of the impugned judgment,as confirmed by the lower Appellate Court, to the effect that the Civil Court has no jurisdiction and the petitioner has an alternative remedy available to her, could not have been arrived at, when the Court is at the stage of Exh.5, as they have the effect of non-suiting the petitioner, without the suit being tried. It is further submitted that the impugned orders of both the courts below have been passed only on the assumption that the petitioner has a remedy under the Securitisation Act, while ignoring the specific averments made in the plaint and the application at Exh.5 that the petitioner is claiming her right of residence in the residential house, as an unmarried daughter, and a coparcener of a joint Hindu family.
2. On the other hand, Ms.Nalini S.Lodha, learned counsel for the caveators (respondents Nos.1 and 2) has vehemently contested the admission of the petition and grant of interim relief. Drawing the attention of the Court to the prayers made in the plaint, the learned counsel for the caveators has submitted that the prayers are directed against the action under the Securitisation Act, therefore, the remedy of the petitioner lies before the DRT and not before the Civil Court. The jurisdiction of the Civil Court has been barred in matters in which the DRT is empowered to take action, and the impugned judgments have rightly been rendered by both the courts below. The petitioner is aggrieved by the notices issued under the Securitisation Act and as per the provisions of Section 17 of the said Act, the petitioner could have approached the DRT within the stipulated period of time. The suit has only been filed in order to circumvent the provisions of law. The learned counsel for the caveators has sought to distinguish the judgment of the Karnataka High Court in Vysya Co-operative Bank Ltd. v.
Ms.G.Keerthana and others (Supra) relied upon by the learned counsel for the petitioner by stating that the judgment of the Karnataka High Court is not applicable, as the same has been rendered in a Suit for partition and the judgment of the Gujarat High Court has been rendered in a tenancy case. It is further submitted by Ms.Nalini S.Lodha,learned counsel for the respondents Nos.1 and 2 that there is no material on record to suggest that the petitioner is a member of a Hindu Undivided Family and she has not sought any declaration to that effect, in the suit. Referring to the order dated 5-3-2009 passed in Special Civil Application No.1405 of 2009, a copy of which is annexed as Annexure C to the petition, it is submitted by Ms.Nalini S.Lodha that the father of the petitioner did not abide by an undertaking given by him, therefore, the petition filed by him has been dismissed by this Court, which fact has not been revealed in the Suit.
3. In rebuttal, Ms.Sangeeta Pahwa, learned counsel for the petitioner submits that the said petition has no relevance to the suit as the petitioner has brought the suit under Hindu law whereas, the petition had been filed by the father of the petitioner challenging the action taken under the Securitisation Act.
4. I have heard learned counsel for the respective parties at length and in great detail, and considered the rival submissions as well as the judgments cited at the Bar. There does not appear to be any doubt regarding the aspect that specific averments have been made in the plaint to the effect that the petitioner has a right in the residential house, the possession of which has since been taken over by the respondents Nos.1 and 2, as an unmarried daughter and a member of the Hindu Undivided Family. It is specifically stated in the plaint that the petitioner is residing in the said residential house since her birth and she has a one-third share in the residential property and a right to use the entire house. Similar averments have been made in the application at Exh.5. May be, a declaration to the effect that the petitioner is a member of the Hindu Undivided Family has not been sought for, but it appears that the prayer regarding protection from dispossession flows from the said averments in the plaint. At this stage, when the Court is dealing with a petition challenging the orders passed below Exh.5, this aspect need not be gone into in detail as the Suit is yet to be decided. Deeper questions of law qua the applicability of the provisions of the Securitisation Act, vis-a-vis the jurisdiction of the Civil Court, which is plenary in nature, arise for determination in the petition. Besides, the question of the rights of the petitioner under Hindu law is also to be examined,which cannot be done at the threshold. The Court is informed that after the passing of the orders below Exh.5 and before the filing of the petition, possession of the property has already been taken over by the respondents Nos.1 and 2. Be that as it may, in view of the submissions made by the learned counsel for the petitioner, and the judgments cited at the Bar, prima facie, a case has been made out for admission of the petition and grant of interim relief.
5. Hence, Rule is issued, making it returnable on 24-2-2010. The respondents Nos.1 and 2 shall maintain status-quo, qua the disputed property, till then.
(Smt.Abhilasha Kumari,J) arg Top