Delhi High Court
Sarvinder Singh & Anr. vs The Chief Manager, Punjab National Bank ... on 5 December, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th December, 2019
+ CS(OS) No.633/2019, IA No.17123/2019 & IA No.17124/2019
SARVINDER SINGH & ANR. .... Plaintiffs
Through: Mr. Abhishek Aggarwal, Advs.
Versus
THE CHIEF MANAGER, PUNJAB NATIONAL
BANK & ORS. ......Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The two plaintiffs viz. Sarvinder Singh and Arindra Singh, have
instituted this suit for (i) declaration that the notices dated 10th July,
2019, 23rd November, 2019 and the order dated 2nd November, 2019
of the Court of Chief Metropolitan Magistrate (CMM), Central, Tis
Hazari Courts, Delhi, are invalid, non est and illegal, (ii) permanent
injunction restraining the defendants viz. (a) The Chief Manager,
Punjab National Bank (PNB), New Rajinder Nagar, New Delhi, (b)
Vikram Badhwar, HUF through its Karta Vikram Badhwar, and (c)
Beechams Ace Mart Pvt. Ltd. from interrupting in the peaceful
possession of the plaintiffs or from taking over possession of the
property No.27, Rajpur Road, Civil Lines, Delhi or any part thereof
and from showing the said property or any part thereof to be their own
property, and, (iii) mandatory injunction directing the Chief Manager,
PNB to cease to take any action whatsoever against the said property
of the plaintiffs.
CS(OS) No.633/2019 Page 1 of 10
2. The suit is listed subject to office objection as to valuation and
court fees paid. The said objection shall be dealt with in the course of
the order.
3. The suit as filed against the Chief Manager, PNB is not
maintainable in law. Chief Manager, PNB is an office and suit against
an office, which is not a legal entity does not lie. Reference in this
regard can be made to Chief Conservator of Forests, Govt. of AP Vs.
Collector (2003) 3 SCC 472; Samadhan Swinming Club Vs. Union
of India 2018 SCC OnLine Del 10782 (DB); J. Kuppanna Chetty,
Ambati Ramayya Chetty & Co. Vs. Collector of Anantpur AIR 1965
AP 457 (DB); P.B. Shah & Co. Vs. Chief Executive Officer,
Corporation of Calcutta AIR 1962 Cal 283 (DB); The Sheriff of
Bombay Vs. Hakmaji Motaji & Co. AIR 1927 Bom 521 (DB); V.
Rajaraman Vs. Hindustan Brown Boveri Ltd. AIR 1974 Del 200;
Sanadhan Swimming Club Vs. Union of India
MANU/DE/1562/2016; ICICI Bank Ltd. Vs. Satish Kumar Sehrawat
2018 SCC OnLine Del 10727; NW Ry. Administration Vs. Nw. Ry.
Union, Lahore AIR 1933 Lah 203; Sarkar-E-Aali Zaria Nazim Vs.
Athor AIR 1957 AP 714 (FB); Manahem S. Yeshoova Vs. Union of
India AIR 1960 Bom 196. The suit would lie only against PNB and
which has not been made a party.
4. It is the case of the plaintiffs, that (i) the father of the plaintiffs
was the part owner of property No.27, Rajpur Road, Civil Lines,
Delhi; (ii) the father of the plaintiffs died in the year 1988 leaving the
plaintiffs as his sons and Nirmal Satyendra Singh as his widow; (iii)
CS(OS) No.633/2019 Page 2 of 10
Nirmal Satyendra Singh died on 24th November, 1994 leaving the
plaintiffs only as her heirs; (iv) the plaintiffs have been residing
abroad for over 50 years; however their mother Nirmal Satyendra
Singh refused to leave India; (v) the plaintiffs had appointed one Vipul
Tandon as the caretaker of their mother; (vi) after the demise of
mother of the parties, the plaintiffs learnt that the said Vipul Tandon
had obtained probate of a document claimed to be the validly executed
last Will of the mother of the plaintiffs and on the basis thereof was
attempting to dispose of the said property; (vii) the plaintiffs got the
probate recalled and the petition for probate dismissed; (viii) the
plaintiffs thereafter filed CS(OS) No.2453/2015 for recovery of
possession of property from the said Vipul Tandon and in which suit a
decree was passed in favour of the plaintiffs and against the said Vipul
Tandon, of recovery of possession of the property; (ix) the plaintiffs
recovered possession of the property on 6th December, 2018 in
execution of the said decree; (x) the defendant no.2 Vikram Badhwar,
on 7th December, 2018 filed an application in the proceedings for
execution, claiming to be the owner of certain portion of the property
of the plaintiffs, by virtue of Sale Deed executed in his favour by
Vipul Tandon aforesaid; along with the said application, documents
showing mortgage of the property with the defendant no.1, to secure
the loan granted to Beechams Ace Mart Pvt. Ltd. were also filed; the
said application is still pending consideration; (xi) since Vipul Tandon
has been held to be not having any rights in the property, under a Sale
Deed executed by him, no rights could be created in favour of Vikram
Badhwar, HUF and Vikram Badhwar, HUF not having any rights in
CS(OS) No.633/2019 Page 3 of 10
the property, could not have mortgaged the property; (xii) now the
plaintiffs have learnt of the Chief Manager, PNB having affixed
notices on the door of the property and from which the plaintiffs have
learnt that on default of Beechams Ace Mart Pvt. Ltd. in repaying the
dues of the bank, the bank has started proceedings for redeeming the
mortgage; and, (xiii) it is mentioned in the said notices that the
possession of the property will be taken on 13th December, 2019.
5. A perusal of the notices put up on the door of the property
shows, (i) notice dated 10th July, 2019 to be under Rule 8(1) of the
Security Interest (Enforcement) Rules, 2002, informing borrower
Beechams Ace Mart Pvt. Ltd. and guarantor Vikrant Badhwar that the
bank had taken possession of the property in exercise of powers under
Section 13(4) of the Securitization and Reconstruction of Financial
Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI
Act) and cautioning Beechams Ace Mart Pvt. Ltd., Vikrant Badhwar
and general public not to deal with the property; (ii) notice dated 23 rd
November, 2019 to be of the Court Receiver appointed by the Court of
the CMM to take possession of the property with the assistance of the
police, on 13th December, 2019; and, (iii) order dated 2nd November,
2019 of the CMM being on the application of PNB under Section 14
of the SARFAESI Act.
6. The plaintiffs have valued the suit for the purposes of
jurisdiction at Rs.2.50 crores and for the reliefs of declaration at
Rs.200/- and for permanent and mandatory injunction at Rs.500/- and
have paid court fees of Rs.2,200/- only on the plaint. On the Registry
CS(OS) No.633/2019 Page 4 of 10
of this Court raising objection qua valuation of the suit, the counsel for
the plaintiff relied on Bombay Ammonia Vs. Raj Kumar (2004) 115
DLT 609, holding that in a suit for simple declaration, fixed court fees
of Rs.200/- is payable and on injunction it is Rs.13/- but the valuation
for the purpose of jurisdiction is the value of the property and insisted
on the suit being listed subject to office objection.
7. Section 7(iv)(c) of the Court Fees Act, 1870 provides that a suit
to obtain a declaratory decree or order where consequential relief is
claimed, shall be valued at the amount at which the plaintiff values the
suit, with ad valorem court fees paid thereon. Section 8 of the Suits
Valuation Act, 1887 provides that the valuation for the purposes of
jurisdiction shall be same as the valuation for the purposes of court
fees. Thus if the suit were to be for declaration with consequential
relief, the plaintiff having valued the suit for the purpose of
jurisdiction at Rs.2.50 crores, the valuation for the purpose of court
fees has to be the same and ad valorem court fees payable thereon.
Conversely, if the plaintiff values the suit at Rs.200/- as done for the
purpose of court fees, the valuation for the purpose of jurisdiction has
to be the same and as per which valuation, the suit would be below the
minimum pecuniary jurisdiction of this Court.
8. However, Article 17(iii) of Schedule II to the Court Fees Act
provides that a suit to obtain a declaratory decree where no
consequential relief is prayed, the court fees payable would be fixed
i.e. Rs.20/-. Such a suit can be valued differently for the purpose of
jurisdiction.
CS(OS) No.633/2019 Page 5 of 10
9. The question to be determined thus is, whether the present is a
suit for declaration simpliciter, in which case the same would lie
before this Court, or is a suit for declaration with consequential relief,
in which case either the plaintiffs will have to pay the deficit court
fees or the plaint rejected / returned for the reason of being below the
minimum pecuniary jurisdiction of this Court.
10. Though the counsel for the plaintiffs has not made any
arguments in this regard but I may record that the plaintiffs appear to
have valued the suit, being under the impression that since physical
possession of the property has not been taken from them, they can do
so. The plaintiffs however forget that vide notice dated 10th July, 2019
supra the bank is in deemed possession of the property and the said
argument also is thus not available to the plaintiffs. In any case, the
plaintiffs here, besides the relief of declaration as null and void of the
notices of the bank and of the order of the CMM, are also claiming the
consequential relief of injuncting the bank from taking action in
pursuance thereto and the present suit thus by no stretch of
imagination qualifies as a suit for declaration simpliciter.
11. The question having been dealt with exhaustively in Hans Raj
Kalra Vs. Kishan Raj Kalra 1976 SCC OnLIne Del 113; S.M. Gulati
Vs. Dream Land House 1994 SCC OnLine Del 643; Sujata Sharma
Vs. Mani Gupta 2010 SCC OnLine Del 506; Anita Anand Vs. Garg
Kapur (2019) 256 DLT 84; Arun International Vs. Oriental Bank of
Commerce 2018 SCC OnLine Del 12411; and, Sushil Malge Vs. Raj
Singh Bhatti 2019 SCC OnLine Del 7485, need to reiterate the same
CS(OS) No.633/2019 Page 6 of 10
here is not felt. Reference in this regard may also be made to Suhrid
Singh Vs. Randhir Singh (2010) 12 SCC 112.
12. A suit for injunction simpliciter, as per Section 7(iv)(d) of the
Court Fees Act, is to be valued for the purpose of court fees, again as
per the statement of the plaintiff, at the amount at which the plaintiff
values the relief sought and ad valorem court fees paid thereon and
vide Section 8 of the Suits Valuation Act, the valuation thereof for the
purpose of jurisdiction is to be the same.
13. There is however a common perception amongst the lawyers,
that a suit for injunction simpliciter can be valued differently for the
purpose of jurisdiction and court fees, with umpteen suits for
injunction, with court fees of Rs.13/- only, being filed in this Court.
14. Thus the suit is not valued according to law, for the purpose of
court fees and jurisdiction and appropriate court fees not paid on the
plaint.
15. However the need to act further on the said aspect is not felt as
the suit otherwise also is not found to be maintainable and the
jurisdiction of this Court is found to be barred by Section 34 of the
SARFAESI Act.
16. From the impugned notices and order of the CMM it is evident
that the same are in exercise of powers under Sections 13(4) and 14 of
the SARFAESI Act. Section 34 of the said Act bars the jurisdiction of
the Civil Court to entertain any suit or proceeding in respect of any
matter which a Debts Recovery Tribunal (DRT) or the Appellate
Tribunal is empowered by or under the said Act to determine and
CS(OS) No.633/2019 Page 7 of 10
further provides that no injunction shall be granted by any court or
other authority in respect of any action taken or to be taken in
pursuance of any power conferred by or under the said Act or the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
17. Attention of the counsel for the plaintiffs has been drawn to
Section 17 of the SARFAESI Act, which entitles any person including
borrower, aggrieved by any of the measures referred to in Section 13
(4) of the Act, taken by the secured creditor for enforcement of the
security, to make an application to the relevant DRT to consider
whether the measures taken are in accordance with the provisions of
the Act and the Rules made therein and to, if finds to not be so,
restore possession of the secured asset to the person entitled thereto.
18. I have asked the counsel for the plaintiff, whether not the
remedy of the plaintiffs is thereunder.
19. The counsel for the plaintiffs has drawn attention to the order
dated 23rd March, 2015 of a Co-ordinate Bench in CS(OS)
No.768/2015 titled Lt. Gen. R.K. Mehta (Retd.) Vs. Naveen
Malhotra, while admitting a suit, directing status quo to be
maintained qua property.
20. Such ex parte orders, without discussing any law, do not
constitute a precedent, to be cited at the bar.
21. The counsel for the plaintiffs has then referred to paragraph 42,
50 & 51 of Mardia Chemicals Ltd. Vs. Union of India (2004) 4 SCC
311 holding that, (i) a full reading of section 34 shows that the
jurisdiction of the civil court is barred in respect of matters which a
CS(OS) No.633/2019 Page 8 of 10
Debt Recovery Tribunal or appellate Tribunal is empowered to
determine in respect of any action taken or to be taken in pursuance of
any power conferred under this Act; (ii) the prohibition covers even
matters which can be taken cognizance of by the Debt Recovery
Tribunal, though no measure in that direction has so far been taken
under sub-section 13(4); (iii) therefore, any matter in respect of which
an action may be taken even later on, the civil court shall have no
jurisdiction to entertain any proceeding thereof; and, (iv) however to a
very limited extent jurisdiction of the civil court can also be invoked,
where for example, the action of the secured creditor is alleged to be
fraudulent or their claim may be so absurd and untenable which may
not require any probe whatsoever or to the extent it is permissible to
bring action in the Civil Court in the cases of English mortgages.
22. The counsel for the plaintiffs states that since actual possession
has not been taken from the plaintiffs and is to be taken on 13 th
December, 2019, the suit is maintainable.
23. I am unable to agree.
24. Rather I have in Davinder Kaur Vs. Punjab & Sindh Bank 202
(2013) DLT 103 and Neha Aggarwal Vs. PNB Housing Finance Ltd.
2016 SCC OnLine Del 3765 held to the contrary. Reference may also
be made to Radnik Exports Vs. Standard Chartered Bank 2014 SCC
OnLine Del 3404 (RFA(OS) 139/2014 preferred whereagainst was
dismissed as withdrawn on 10th October, 2014).
CS(OS) No.633/2019 Page 9 of 10
25. As far as exception carved out in Mardia Chemicals Ltd. supra
is concerned, it is not even the case of the plaintiff that PNB has acted
fraudulently or that its claim is absurd or untenable.
26. Thus whichever way one looks at, suit before the Civil Court is
not maintainable and is dismissed, leaving the parties to bear their own
costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
DECEMBER 05, 2019 'gsr'..
CS(OS) No.633/2019 Page 10 of 10