Punjab-Haryana High Court
State Bank Of India vs Sonia Saini And Ors on 24 May, 2018
Author: Amit Rawal
Bench: Amit Rawal
CR No.693 of 2018 {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CR No.693 of 2018
Date of decision:24.05.2018
State Bank of India ... Petitioner
Vs.
Sonia Saini and others ... Respondents
CR No.710 of 2018
State Bank of India ... Petitioner
Vs.
Dharamjit Kaur and others ... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:- Mr. Vikas Chatrath, Advocate
for the petitioner.
Mr. Ashwani Sharma, Advocate, for
Mr. Deepak Gupta, Advocate
For respondent No.1.
AMIT RAWAL J. (Oral)
This order of mine shall dispose of two revision petitions bearing Nos.693 and 710 of 2018.
Since the facts and question of law involved in the revision petitions are identical, the facts are being taken from CR No.693 of 2018.
The present revision petitions are directed against the impugned order dated 05.12.2017 (Annexure P-7), vide which the 1 of 5 ::: Downloaded on - 08-07-2018 23:04:21 ::: CR No.693 of 2018 {2} application filed by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of CPC has been allowed without adjudicating the application under Order 7 Rule 11 of CPC, for rejection of the plaint.
Sonia Saini and others-respondent/plaintiffs in CR No.693 of 2018 (hereinafter called as "first revision petition") and Dharamjit Kaur and other-respondent-plaintiffs in CR No.710 of 2018 (hereinafter called as "second revision petition") instituted the suit for permanent injunction against the landlords and as well as Bank of forcible interference and dispossession being tenants in the suit premises on the ground that Bank purportedly under the provisions of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Act 2002, (in short "2002 Act"), had initiated the proceedings against the landlords, i.e., borrower may not take possession from the respondent-plaintiff being tenant. Alongwith aforementioned suit, ad interim application under Order 39 Rules 1 and 2 of CPC was filed. The trial Court in the suit tilted as "Dharamjit Kaur Vs. Charan Kamal Singh and others" had granted the interim stay but in other case, there is no interim stay.
On receipt of the notice, the Bank which was impleaded as defendant no.5 submitted an application under Order 7 Rule 11 of CPC for rejection of the plaint, for, jurisdiction of the Civil Court as per the amended provisions of Section 17(4-A) of 2002 Act specifically prohibits the filing of the suit of aforementioned nature, as tenant had been given right to avail the remedy by approaching the Debt Recovery Tribunal.
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CR No.693 of 2018 {3}
Mr. Vikas Chatrath, learned counsel appearing on behalf of the petitioner submits that the trial Court erroneously dismissed the application holding that it was mixed question of facts and law and would be decided only at an appropriate stage. The trial Court dismissed the application by relying upon the judgment of the Hon'ble Supreme Court rendered in Vishal N. Kalsaira Vs. Bank of India and others 2016(1) Civil Court Cases 696. He further submits that aforementioned judgment was rendered on 20.01.2016, whereas, legislature caused amendment by inserting sub-section 4-A in Section 17 of 2002 Act, w.e.f. 01.09.2016. In this regard, he has drawn the attention of this Court to the aforementioned amended provisions which read thus:-
"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
© 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
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(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 © or sub- clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act."
Therefore, the aforementioned judgment would not be applicable to the present cases.
Per contra, Mr. Ashwani Sharma, Advocate appearing on behalf of respondent No.1 submits that finding arrived at by the trial Court is perfectly legal and justified, for, adjudication of the application under Order 7 Rule 11 CPC, only averments made in the plaint have to be seen and not defence. If at all, the Bank is aggrieved, can always file the written statement and press for maintainability of the suit which could be adjudicated, if possible, as preliminary but not for rejection of the plaint and thus, urges this Court for upholding the order under challenge.
I have heard the learned counsel for the parties, appraised the paper book and of the view that there is force and merit in the submissions of Mr.Chatrath, for, concededly, the judgment cited (supra) was pronounced on 20.01.2016 and at that relevant point of time, there was no provision for availing the alternative remedy at the behest of the tenant. The aforementioned amendment as noticed above came to be promulgated on 4 of 5 ::: Downloaded on - 08-07-2018 23:04:22 ::: CR No.693 of 2018 {5} 01.09.2016. In view of such matter, the tenant has remedy as she is not required to pay the Court fee, thus, in my view, the findings of the Court below suffered from infirmity, illegality and perversity.
At this stage, it is pointed out by Mr. Ashwani Sharma that since the trial Court had already protected the possession of the tenant in CR No.710 of 2018, interim injunction granted by the trial Court may be ordered to be maintained till tenant avails the remedy as per the amended provision of 2002 Act.
The aforementioned prayer of Mr. Sharma, is fair and honest. As an upshot of my findings, the orders under challenge are hereby set aside. The application filed by the Bank is allowed and suit is rejected. However, one month time is granted to respondent-plaintiff to file the petition alongwith application for interim stay as per the provisions of Section 17(4-A) of 2002 Act. The interim injunction granted in second revision petition shall continue. It is made clear that there is no interim stay in first revision petition.
Resultantly, the revision petitions stand allowed.
(AMIT RAWAL)
JUDGE
May 24, 2018
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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