Madras High Court
Mohammed Imthiyas vs The Branch Manager on 3 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.495 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
A.S.No.495 of 2022 and
C.M.P.No.17983 of 2022
1. Mohammed Imthiyas
2. Mohammed Faizal .. Appellants
Versus
1. The Branch Manager
Lakshmi Vilas Bank Ltd
R.S.Pillai Street, Thindivanam Town,
Villupuram District.
2. M/s.Reliance Asset Reconstruction Co Ltd.
Rep by its Associate Vice President-Legal
Mr.P.Satheesh Kumar,
Having Registered Office at
11th floor, North side
R-Tech Park, Western Express Highway,
Goregano (East),
Mumbai – 400 063. .. Respondents
(R2 is impleaded vide order of Court dated
08.11.2024 made in C.M.P.No.25157 of 2024
in A.S.No.495 of 2022 (SSKJ)
First Appeal filed under Section 96 of C.P.C against the judgment and decree
in I.A.No.11 of 2020 in O.S.No.2 of 2020 dated 26.07.2022 on the file of the
learned II Additional District Judge, Tindivanam.
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A.S.No.495 of 2022
For Appellants : M/s.V.Srimathi
For Respondents : M/s.Gautam S.Raman
JUDGMENT
Appeal Suit has been filed against the judgment and decree in I.A.No.11 of 2020 in O.S.No.2 of 2020 dated 26.07.2022 on the file of the learned II Additional District Judge, Tindivanam.
2. Originally the suit in O.S.No.2 of 2020 was filed by the Plaintiff seeking relief of partition which was pending on the file of the learned II Additional District Judge, Villupuram at Tindivanam against the Defendants 1 to 4. Defendant-5 is the Lakshmi Vilas Bank, Tindivanam and Defendant-6 is the General Manager, Lakshmi Villas Bank, Pondicherry.
3. The plaint averments are as follows:
As per the plaint averments, the Plaintiffs are the minors, and they are the grand sons of Late. Abdul Mannan. The property is in the name of Abdul Mannan. The Plaintiffs are the grand sons of Abdul mannan through his daughter, Shakila. The suit properties belong to the maternal grand father of 2/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 the minor plaintiffs.
3.1 The maternal grand father Abdul Mannan purchased the property from S.Deivasigamani, S/o. Samuel through a registered sale deed dated 21.06.1979 bearing document No.1174 of 1979. From 1979, he is in lawful possession and enjoyment of the property without any hindrance and paid the necessary kist. Abdul Mannan expired on 25.06.1992 at his home at Tindivanam leaving behind his wife Rahima Begum and his two sons and two daughters. The Defendant-5 extended loan facility to the 2nd Defendant Syed Ibrahim.
3.2 Without vetting any appropriate documents for the development of the rice Mill owned by maternal grandfather, Abdul Mannan, which was functioning under the name and style of M.A.S Modern Rice Mill, in which the mother of the Plaintiffs, Shakila, was one of the legal heirs of Abdul Mannan, and she had a share in the suit property, for which the Bank 5 th Defendant had extended loan facility, without verifying the legal heirs of Late.
Abdul Mannan. Therefore, it is not attributable to the minor plaintiffs. The 5th Defendant had extended the loan to the M.A.S Modern rice Mill based on relinquishment deed dated 22.04.2010 and registered it in the Office of the Sub 3/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 Registrar, Tindivanam as Document No.603 of 2010 in which the mother of the Plaintiffs Shakila was not a party. It cannot be enforced in the eyes of law and when it is not enforceable in the eyes of law, then the extension of loan for the development of the Rice Mill cannot be sustained in the eyes of law and will not bind the the minor plaintiffs.
3.3 It is further contended by the Plaintiffs that for the extent of loan facility for the development of the said rice mill there are infirmities and lacuna. Therefore, the question of issuing of statutory notice dated 03.11.2018 by the 5th Defendant is not maintainable in the eyes of law. On the strength of such notice, auction scheduled for 29.04.2019 is not required considering the legal position of the subject matter of the property. Therefore, the auction sale notice dated 29.04.2019 is to be withdrawn by the 6 th Defendant as the Plaintiff's share cannot be auctioned for loan facilities availed by the 2nd Defendant. Also on the above auction notice, the auction of the subject matter cannot be held on 31.05.2019 because it has infirmities and lacuna.
3.4 It is the further case of the Plaintiffs that the Relinquishment deed entered among the other legal heirs of Abdul Mannan on 22.04.2010 leaving 4/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 behind the children of Shakila W/o. Hyder Ali itself is a lacuna and infirmities. Therefore, in the eye of law infirmities cannot be imposed. Therefore, the loan facilities extended for the development of M.A.S rice mill will not bind the minor Plaintiffs.
3.5 It is the further contention of the Plaintiffs that their mother Shakila W/o. Hyder Ali who expired on 14.09.2006 at Puducherry was legitimately entitled to her share in the suit property. It is pertinent to mention that all the other legal heirs of Abdul Mannan got their due shares in the suit property. But the mother of the Plaintiffs was left out and was ignored in the partition which was entered on 22.04.2010. The 5th Defendant in the suit extended the loan facility for the development of the rice mill. The mother of the plaintiffs, Shakila was not a party to both the partition effected on 22.04.2010 and the loan facilities such as the term loan and OCC facility up to the year 2016 which had become Non-Performing Assets account. Therefore the 6 th Respondent issued statutory notice under SARFAESI Act, 2002 and tried to bring the suit property on auction sale including the plaintiff's share inspite of the infirmities and lacuna in extending the loan.
4. The 5th Respondent had extended the loan facility to the 2nd 5/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 Respondent without vetting all the documents and other documents regarding the legal heirs of the late Abdul Mannan. Therefore, Shakila W/o. Hyder Ali and daughter of Abdul Mannan was not given her due share as she expired on 14.09.2006 at Puducherry. The Plaintiffs stated that whatever the loan facility extended to the 2nd Defendant by the 5th Defendant without verifying the legal heirs of the late Abdul Mannan was his wrong doing of the 5th Respondent, for which the Plaintiffs are not responsible, since the mother of the minor Plaintiffs, Shakila W/o. Hyder Ali, is the daughter of late Abdul Mannan, and therefore the 5th Defendant cannot snatch the legitimate rights of the Plaintiff by claiming that they had extended the loan facility and therefore needed to bring the suit Property on auction in spite of infirmities and lacuna in extending the loan facility.
5. It is the claim of the Plaintiffs that the 5th and 6th Defendants are attempting to bring the property for auction. Therefore, this Court may be pleased to restrain 5th and 6th Defendants from bringing the property for auction sale. Therefore, the Plaintiff has filed the suit for partition of 1/5 share of the Plaintiff’s mother’s share in the suit property.
6. As per the plaint averments, the Plaintiffs mother died on 14.09.2006. 6/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 As per the plaint averments, the Defendants had executed Mortgage of the suit property with the 5th Defendant Bank for the purpose of developing the rice mill by obtaining loan from the Lakshmi Vilas Bank in the petition under Order VII Rule 11 of C.P.C. The Official of the Bank had clearly stated that the mother of the Plaintiff had executed the mortgage along with other Defendants, where the share of the suit property of the mother of the Plaintiffs was a security to the availing loan and she was unable to repay the debt. Whether there was a fraud committed by the other defendants is subject matter of the suit.
7. Pending suit, Defendant-5 and Defendant-6 filed petition under Order VII Rule 11 of C.P.C that the suit for partition filed by the Plaintiff is not maintainable as the suit property is a secured asset pending with the Defendant-5 and Defendant-6 as per Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act ).
8. The Civil Court has no jurisdiction to entertain regarding the assets which are secured assets with the Bank. On that ground, the Defendant-5 and Defendant-6 filed the petition under Order VII Rule 11 of C.P.C that the suit is 7/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 barred as per Section 34 of the SARFAESI Act, 2002.
9. The learned II Additional District Judge, Villupuram at Tindivanam on the basis of the contention raised by the Respondent-5 and Respondent-6 in I.A.No.11 of 2020 in O.S.No.2 of 2020 by order dated 20.07.2022 rejected the plaint. Aggrieved, the Plaintiffs in O.S.No.2 of 2020 have preferred this Appeal raising the following grounds.
10. It is the contention of the learned Counsel for the Appellant that the Plaintiff as Appellant had raised the ground of fraud in the plaint. The fraud allegedly committed by the Defendants in creating mortgage over the joint family properties and ancestral properties is a matter over which the Debt Recovery Tribunal has no jurisdiction. It is for the Plaintiffs to prove it during trial. The claim made by the Plaintiff is that the jurisdiction of the Debt Recovery Tribunal under the SARFAESI Act, 2002 is limited to the adjudication of the existence of security interest and procedures adopted for reinforcement of the security interest. The learned Judge failed to consider the jurisdiction of the Civil Court and the jurisdiction of the Tribunal constituted under the Special law, Securitisation and Reconstruction of Financial Assets 8/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 and Enforcement of Security Interest Act, 2002. The learned Judge had erroneously rejected the claim under Order VII Rule 11 of C.P.C. The Plaintiff’s wife had executed MoU with the Defendant Bank that if the wife is dead, her children ought to have been served with notice.
11. The learned Counsel for the Appellant invited the attention of this Court to the observation of the learned II Additional District Judge, Villupuram at Tindivanam in the order in I.A.No.11 of 2020 in O.S.No.2 of 2020, wherein it was held as follows:
8. kDjhuu;,e;j kDt[ld; ,ize;J Memorandum of Deposit of Title Deeds dated 10.05.2006 Mtzj;jpd; efy;
jhf;fy; bra;ag;gl;Ls;sJ/ nkw;go Mtzj;jpd;go thjpfSila jhahuhd rfPyhghD vd;gtu; mjpy; ifbahg;gk; bra;J Mtzk; vGjpf;bfhLj;Js;sij mwpa KofpwJ/
12. The learned Counsel for the Appellant invited the attention of this Court to Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
13. It is the contention of the learned Counsel for the Appellant that the borrower died on 14.09.2006. The learned Counsel for the Appellant invited the attention of this Court to page 12 para 3 of the affidavit, wherein it is stated 9/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 as follows:
3. Originaly, the property belonged to one S.Deivasigamani. My wife's father, Mr.Abdul Mannan purchased the suit schedule property vide a sale deed dated 21.06.1979 registered as Doc.No.1174/1979. Abdul Mannan passed away on 25.06.1992, leaving behind my wife and the defendants 1-4 as his legal heirs. My wife, Shakeela passed away on 14.09.2006. It transpires that a relinquishment deed dated 23.04.2010 registered as Doc No.603/2010 was executed. Neither my wife, nor my children were made parties to the same. The said document is sham.
14. He also invited the attention of this Court to the Affidavit of the Bank Manager Defendant-5 in Para 4, wherein it is stated as follows:
“I submit that as the borrower have failed to repay the amount due, the loan account became NPA and we issued notice to the mortgagers under the provisions of SARFAESI Act. We have also filed original application in DRT-I Chennai in SR No.12631/2019 against the said firm, rep by it Prop.M.A.Syed Ibrahim and the dispute is now pending before the DRT-I, Chennai.
15. The suit for partition is not filed before the Debt Recovery Tribunal (DRT). The suit for partition is very much maintainable before the Civil Court. Therefore, it is the contention of the learned Counsel for the Appellant that the learned Judge having been carried away by the submissions of the learned 10/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 Counsel for the Bank had erroneously rejected the plaint on the ground that the suit property is a secured asset under the Bank. Therefore, the Civil Court has no jurisdiction to entertain any suit regarding the suit property which is erroneous.
16. The learned Counsel for Respondents submitted that the order passed by the learned II Additional District Judge, Villupuram at Tindivanam is a well reasoned order that does not warrant an interference by this Court.
17. Also he would submit that as per the reported decision in the case of Indian Bank, Asset Recovery Management Branch v. B.Venkataraman reported in 2014 (6) CTC 751 is squarely applicable to the facts of this case. Therefore in the light of the reported decision, this Appeal itself is not maintainable. what are all the contention raised by the Plaintiff in this suit can be raised even before the Debt Recovery Tribunal. When the assets secured by the Bank are the subject matter of the suit, naturally the SARFAESI Act, 2002 is invoked in which case the jurisdiction of the Civil Court is barred. In the reported decision also, the facts are similar. Therefore, in the light of the reported decision, the learned Counsel for the Bank sought to dismiss the Appeal.
11/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 Point for determination Whether the order passed by the learned II Additional District Judge, Villupuram at Tindivanam in I.A.No.11 of 2020 in O.S.No.2 of 2020 dated 26.07.2022 is erroneous warranting interference by this Court?
18. Heard the learned Counsel for the Appellant, M/s. Srimathi and the learned Counsel for the Respondent M/s..Gautham S.Raman. Perused the plaint in O.S.No.2 of 2020. Perused the order passed by the learned II Additional District Judge, Villupuram at Tindivanam.
19. On perusal of the plaint, it is found that the suit for partition has been filed against the Defendants claiming that the Defendants 1 to 4 had colluded and played fraud on the Plaintiffs. It is the case of the Plaintiffs that the suit property was mortgaged with the bank.
20. It is the contention of the learned Counsel for the Lakshmi Vilas Bank that the subject can be raised in a suit filed before the Debt Recovery Tribunal and the Plaintiff herein can agitate their right. 12/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022
21. As per the section 34 of the SARFAESI Act, Civil Court jurisdiction that is pointed by the learned Counsel for the Defendants as petitioners in I.A.No.11 of 2020 in O.S.No.2 of 2020, the learned II Additional District Judge, Villupuram at Tindivanam had rightly allowed the petition in the light of the reported decision cited by the learned Counsel for the Respondent, therefore, nothing is found perverse. The order passed by the learned II Additional District Judge, Villupuram at Tindivanam is found proper.
22. It is the submission of the learned Counsel for the Appellant that when there is an allegation of fraud against Defendants, naturally the jurisdiction of the Civil Court is attracted. The duly constituted Tribunal under the SARFAESI Act, 2002 has only restricted jurisdiction regarding secured assets whereas the Civil Court has vast powers including to try and find out whether fraud was played upon the parties to the dispute. It is for the Plaintiffs to prove that the fraud was played upon the Plaintiffs by the Defendants 1 to 4. Under those circumstances, the contention of the learned Counsel for the Appellant that without considering the plaint averments, the learned II Additional District Judge, Villupuram at Tindivanam had rejected the plaint as erroneous cannot be accepted. If there is a dispute regarding execution of 13/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 Memorandum of Understanding with the Bank by the mother of the Plaintiffs, the Plaintiffs can very well approach the referral Tribunal for the relief. Because any question involving the subject matter of the dispute has to be adjudicated only by the Tribunal constituted under the SARFAESI Act, 2002. Here, under Section 34, the jurisdiction of the Civil Court is barred. It is unambiguous. While so, the claim made by the Plaintiffs that the Defendants played fraud on the Plaintiff and created encumbrance in the suit property is also to be adjudicated before the Tribunal.
23. On perusal of the order passed by the learned II Additional District Judge, Villupuram at Tindivanam, it is found that the order passed by the learned II Additional District Judge, Villupuram at Tindivanam in I.A.No.11 of 2020 in O.S.No.2 of 2020 is found proper.The learned Judge had rejected the plaint on the ground of Bar of Civil Court jurisdiction under the provisions of SARFAESI Act, 2002 and in the light of the express bar under section 34 of the Act.
24. The rules of inheritance under the Mohammedan Law are as follows:
The estate of the deceased person includes both movable and immovable property and there is no distinction between the two. All the 14/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 properties held by a muslim person is his separate property, therefore, whatever property is received by the heir on the death of the deceased will be his absolute property. The concept of ancestral or joint family property is absent under Mohammedan Law. The moment a person dies, his heritable property gets vested immediately in his legal heirs, even though the actual calculation of shares will take place in the future. This is because the property can never be kept in abeyance. Thus, it vests immediately upon the death of the deceased. There is no birthright of any person in another person's property, unlike in Hindu law, by way of a coparcenary. The nearer legal heir will be given preference over the farther relative.
25. When a Mohammedan dies, it is considered important that the following four duties are performed in the given order:
(i) Payment of funeral and burial expenses;
(ii) Payment of debts of the deceased;
(iii) Check if any testamentary disposition was made via a will.
(iv) Distribute the remaining estate to the relatives of the deceased according to Shariat law.
26. As per the Mohammedan law, the deceased person can only bequeth 15/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 1/3 of the property remaining after making the compulsory payments. Therefore, 2/3 rd of his property can be distributed among the family members. The inheritance right as per Mohammedan law are first to be granted to the sharers, if any residuaries is left, it is to be divided among the Agnatic heirs. If there are neither Sharers nor residuaries, the estate will be distributed among Distant Kindred. The Sharers are as follows:
i) Father
ii) Mother
iii) True Grandfather
iv) Paternal or Maternal Grandmother
v) Husband
vi) Wife
vii) Uterine Brother
viii) Uterine Sister
ix) Daughter
x) Full sister
xi) Son's Daughter
xii) Consanguine Sister
27. If the Plaintiffs are to be considered as legal heirs of the deceased 16/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 Abdul Mannan, they are duty bound to clear the debts of the deceased person, without which they cannot claim partition. The claim of partition is unknown to Mohammedan law. Naturally, the shares are divided after the death of the Mohammedan man. Here, the Plaint averments are drafted cleverly only to avoid proceedings from SARFAESI Act. Therefore, the learned Judge allowing the petition under Order VII Rule 11 is found proper.
28. In the reported decision relied by the learned Counsel for the Respondent in the case of Indian Bank, Asset Recovery Managment Branch v. B.Venkatraman, the facts of the reported decision squarely applies to the facts of this case. In the light of the facts of the above reported decision, the suit was filed by the Plaintiff originally seeking declaration of title and injunction. Pending suit, the amended plaint was filed seeking relief of partition. Originally, the suit was filed seeking injunction against the Defendants from taking any coercive steps including SARFAESI Act, 2002. Subsequently, the prayer was amended to include the prayer of partition. Still the learned Judge of this Court had held that the jurisdiction of the Civil Court is barred. Therefore rejected the plaint. Under those circumstances, here also, the learned Counsel for the Appellant stated that the suit is for partition and there is allegation of fraud against the Defendants. When there is allegation of 17/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022 fraud by the Defendant, only Civil Court has jurisdiction and not the specially constitued Tribunal under SARFAESI Act, 2002 is found unacceptable particularly in the light of the reported decision in the case of Indian Bank Asset Recovery Management Branch v. B.Venkatraman. It is accepted principle that as per SARFAESI Act, 2002, any dispute involving the subject matter of the property which is a secured asset of the Bank has to be adjudicated in the specially constituted Tribunal. Therefore the objection by the learned Counsel for the Appellant that the order passed by the learned II Additional District Judge, Villupuram at Tindivanam is an erroneous order, ignoring the pleadings in the plaint and considering the submission of the 5 th and 6th Defendant bank that the jurisdiction of the Civil Court is barred and therefore rejected the plaint is not proper. It is an erroneous order. The said submission cannot be accepted in the light of the reported decision relied by the learned Counsel for the Respondent in the case of Indian Bank Asset Recovery Management Branch v. B.Venkatraman. Therefore the point for Determination is answered against the Appellant and in favor of the Respondent. The order passed by the learned II Additional District Judge, Villupuram at Tindivanam is found proper in the light of the provisions of SARFAESI Act and in the light of the code of civil procedure. 18/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm ) A.S.No.495 of 2022
29. The argument of the learned Counsel for the Appellant that the learned Judge had not rejected the Plaint under Order VII Rule 11 based only on averments in the plaint and therefore it is erroneous, is rejected.
Point for determination is answered in favour of the Defendants 5 and 6 and against the Appellant. In the result, the Appeal Suit is dismissed. The judgment of the learned II Additional District Judge, Tindivanam is confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
03.06.2025 Shl Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order To:
1. The II Additional District Judge, Tindivanam.
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shl Judgment made in A.S.No.495 of 2022 and C.M.P.No.17983 of 2022 03.06.2025 20/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/06/2025 07:34:32 pm )