Calcutta High Court (Appellete Side)
Mrinal Kanti Baur vs Bank Of India & Ors on 9 November, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
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38.
09.11.2011.
d.d.
SAT No.311 of 2010
(CAN 6621 of 2010)
Mrinal Kanti Baur
Vs.
Bank of India & Ors.
Mrs. Usha Maity
...... For the Appellant.
Being aggrieved by and dissatisfied with the judgment dated
19-04-2010 and the decree dated 29-04-2010 passed by the
learned Additional District Judge, Arambag, Hooghly in Title Appeal
No.24 of 2009 affirming the judgment dated 25-05-2009 and the
decree dated 05-06-2009 passed by the learned Civil Judge, Junior
Division, First Court, Arambag, Hooghly in Title Suit No.43 of 2008
for declaration, injunction and other consequential reliefs, this
second appeal has been filed.
The facts of the case as briefly stated in the plaint is that the
plaintiff is the proprietor of one M/s. Satyanarayan Bedding Centre
and availed a cash credit facility from the Bank of India for a sum
of rupees four lakhs. It appears that the said loan was also covered
under the Securitization and Reconstruction of Financial Assets
and Enforcement of Security Interest (for short 'SARFAESI') Act. It
is the case of the plaintiff that the said Act is not applicable in the
case of the plaintiff and accordingly, the plaintiff claimed perpetual
injunction restraining the defendant Bank from implementing a
notice which was issued under Section 13(4) of the SARFAESI Act.
The defendant duly contested the suit in question by filing
written statement and made a prayer in view of the provisions of
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Section 34 of the said Act that the Civil Court has no jurisdiction to
entertain the suit which has been filed by the plaintiff. The
following issues were framed by the Court below:
1.Whether this court has jurisdiction to entertain, try and decide the suit in view of the provisions of Section 34 of the Securitization Act?
2. Is the suit bad for the non joinder of necessary parties.
3. Is the plaintiff entitled to get the decree as prayed for?
4. To what other relief, if any, the plaintiff is entitled to as per law and equity?
The trial Court, after considering the materials placed before it and the Act in question, came to the conclusion that the Civil Court has no jurisdiction to entertain the suit in view of the specific bar created under Section 13(4) of the SARFAESI Act. Hence, the suit was dismissed.
Being aggrieved, the appeal was filed before the appellate Court below by the appellant being Title Appeal No.24 of 2009 which was also heard out by the Additional District Judge, Arambagh. The appellate Court below, after going through the records and the materials placed before it, came to the conclusion that in view of the specific bar laid in Section 34 of the said Act, the suit is not maintainable and affirmed the decree for dismissal by dismissing the appeal on contest.
Being aggrieved, this appeal has been filed by the appellant/plaintiff.
We have also examined the documents and the materials placed before us. We have also considered the decision of the Supreme Court in United Bank of India Vs. Satyawati Tondon & 3 Ors., reported in (2010) 8 Supreme Court Cases, 110. The Supreme Court held that Section 13 of the SARFAESI Act contains detailed mechanism for enforcement of security interest and further held that appropriate remedies available to any person including the borrower who may have secured creditor under sub-section (4) of Section 13 by making an application to the Tribunal within forty- five days on which action is taken under such sub-section and in particular, it has been specifically dealt with Section 34 which lays down that no civil court has jurisdiction to entertain any suit or proceeding in respect of any matter which a Tribunal or Appellate Tribunal is entitled to determine. It further lays down that no injunction can be granted by any court or other authority in respect of any action taken or to be taken under the SARFAESI Act or the DRT Act.
Therefore, it appears to us that the jurisdiction of the Civil Court has been specifically barred under the said provisions of the SARFAESI Act. In view of that, we do not find that there is any reason or any substantial question of law is involved in terms of Section 100 of the Code of Civil Procedure to admit this appeal under Order XLI Rule 11 and the same is accordingly dismissed. Consequently, the application being CAN 6621 of 2010 is disposed of.
Urgent certified photostat copy of this order, if applied for, be supplied to the appellant subject to compliance of all requisite formalities.
( Pinaki Chandra Ghose, J ) 4 ( Dr. Mrinal Kanti Chaudhuri, J )