Karnataka High Court
Smt Ashwini Shetty vs Sri Manohar Shetty on 24 August, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 24 DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
WRIT PETITION NO.15801/2020 (GM-CPC)
C/W.
M.F.A.No.895/2021 (CPC)
IN W.P.NO.15801/2020:
BETWEEN:
SMT. ASHWINI SHETTY
WIFE OF SUJITH SHETTY
AGED ABOUT 34 YEARS
RESIDING AT NO.W-377
EAST MAIN ROAD, ANNA NAGAR
WEST EXTENSION
CHENNAI-600 101. ... PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI AJAY RAO, ADVOCATE)
AND:
1. SRI MANOHAR SHETTY
AGED ABOUT 61 YEARS
SON OF LATE C. NARAYANA SHETTY
2. SMT. HARINI SHETTY
AGED ABOUT 57 YEARS
WIFE OF MANOHAR SHETTY
3. MS. ARPITA SHETTY
AGED ABOUT 32 YEARS
DAUGHTER OF SRI MANOHAR SHETTY
2
ALL RESIDING AT NO.861,13TH MAIN,
3RD BLOCK, KORMANGALA,
BANGALORE-560 034.
4. CANARA BANK
A BODY CORPORATE,
CONSTITUTED UNDER
THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF
UNDERTAKINGS) ACT, 1970
HAVING ITS OFFICE AT NO.112,
J.C.ROAD, BANGALORE-02
AND ONE OF ITS BRANCH OFFICE
CALLED AS PRIME CORPORATE BRANCH
NO.25, SHANKARNARAYAN BUILDING
M.G. ROAD, BANGALORE-01.
REPRESENTED BY ITS
SENIOR MANAGER
5. ALLAHABAD BANK
A BODY CORPORATE
CONSTITUTED UNDER
THE BANKING COMPANIES
(ACQUISITION AND TRANSFER
OF UNDERTAKINGS) ACT, 1970
HAVING ITS HEAD OFFICE AT
NO.2, NETAJI SUBHAS ROAD
KOLKATA-700001.
WITH ONE OF ITS INDUSTRIAL
FINANCE BRANCH OFFICE AT
NO.1/32, ULSOOR ROAD CROSS
ULSOOR ROAD
BANGALORE-560 042. ... RESPONDENTS
(BY SRI C.K.NANDAKUMAR, SENIOR COUNSEL FOR
SRI H.S.RUKKOJI RAO, ADVOCATE FOR R4;
SRI H.R.KATTI, ADVOCATE FOR R5 [THROUGH VC];
R1 TO R3 ARE SERVED)
3
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER VIDE ANNEXURE-A DATED 24.11.2020
PASSED ON THE MEMO FILED BY THE R-4 BY THE XXX ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH.NO.31),
IN O.S.NO.8584/2012.
IN M.F.A.No.895/2021:
BETWEEN:
SMT. ASHWINI SHETTY
WIFE OF SUJITH SHETTY
AGED ABOUT 32 YEARS
RESIDING AT NO.W-377
EAST MAIN ROAD
ANNA NAGAR
WEST EXTENSION
CHENNAI-600 101. ... APPELLANT
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI AJAY RAO, ADVOCATE)
AND:
1. SRI MANOHAR SHETTY
AGED ABOUT 59 YEARS
SON OF LATE C. NARAYANA SHETTY
2. SMT. HARINI SHETTY
AGED ABOUT 55 YEARS
WIFE OF MANOHAR SHETTY
3. MS. ARPITA SHETTY
AGED ABOUT 30 YEARS
DAUGHTER OF SRI MANOHAR SEHTTY
ALL RESIDING AT NO.861
13TH MAIN, 3RD BLOCK
4
KORAMANGALA
BANGALORE-560 034.
4. CANARA BANK
A BODY CORPORATE
CONSTITUTED UNDER
THE BANKING COMPANIES
(ACQUISITON AND TRANSFER
OF UNDERTAKINGS) ACT, 1970
HAVING ITS OFFICE AT
NO.112, J.C. ROAD
BANGALORE-02
AND ONE OF ITS BRANCH OFFICE
CALLED AS PRIME CORPORATE BRANCH
NO.25, SHANKARNARYANA BUILDING
M.G. ROAD, BANGALORE-01
REPRESENTED BY ITS
SENIOR MANAGER
5. ALLAHABAD BANK
A BODY CORPORATE
CONSTITUTED UNDER
THE BANKING COMPANIES
(ACQUISITON AND TRANSFER
OF UNDERTAKINGS) ACT, 1970
HAVING ITS HEAD OFFICE
AT NO.2, NETAJI SUBHAS ROAD
KOLKATA-700 001
WITH ONE OF ITS INDUSTRIAL FINANCE
BRANCH OFFICE AT NO.1/32
ULSOOR ROAD CROSS,
ULSOOR ROAD
BANGALORE-560 042. ... RESPONDENTS
(BY SRI SHREYAS JAYASIMHA, ADVOCATE FOR R1 AND 2;
SRI HEMANT R. RAO, ADVOCATE FOR R4 )
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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 24.11.2020 PASSED ON I.A. IN
O.S.NO.8584/2012 ON THE FILE OF THE XXX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY CCH-31,
REJECTING THE I.A. FILED UNDER ORDER 39 RULE 1 AND 2 OF
CPC.
THIS WRIT PETITION AND M.F.A. HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 03.08.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
The writ petition and appeal are filed against the order passed by the Trial Court on memo and also on the application filed under Order XXXIX Rules 1 and 2 of CPC.
2. The factual matrix of the case of the plaintiff before the Trial Court in O.S.No.8584/2012 is that the plaintiff is one of the daughter of defendant Nos.1 and 2 and defendant No.3 is her sister and all of them have constituted a Hindu undivided family (HUF) and said Hindu Joint Family was in possession of several properties being in the nature of sites in the city of Bengaluru and coffee estates located at several places in and around Chikmagaluru. The said HUF is hereinafter referred to as 'Manohar Shetty HUF'.
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3. It is further contended that the plaintiff along with defendant Nos.2 and 3 also constituted a HUF for which defendant No.2 declared herself to be 'kartha' and the said HUF herein after referred to as 'Harini Shetty HUF' and said HUF was also in possession of several properties such as coffee estates in Chikkamagaluru. Income arising out of the properties of 'Harini Shetty HUF' is shared and utilized by the members of HUF being the plaintiff, defendant Nos.2 and 3 and respective documents are also produced before the Court. It is contended that the plaintiff along with the defendants are in joint possession of the properties, which belong to both 'Manohar Shetty HUF' and 'Harini Shetty HUF' and the proceeds arising from these two properties are being deposited along with the nucleus of the respective HUF and the same is being utilized by the members of the respective HUF. It is also contended that the grandfather of the plaintiff i.e., late C. Narayana Shetty was married to Smt.Akkayya Shedthi in the year 1952 and the grandfather had two sons namely, Sitaram Shetty and Manohar Shetty who is defendant No.1 in the suit and three daughters namely Sumitra Shetty, Hemalatha Shetty and Sakunthala Shetty. It is 7 contended that all the sons and daughters of Narayana Shetty constituted the Joint Hindu Family. The grandfather of the plaintiff i.e., Narayana Shetty along with his brothers i.e., Nagayya Shetty and Sanjeeva Shetty by utilizing the funds of their joint family along with another, who is their relative i.e., Raghu Shetty formed a partnership firm in the year 1981 under the name and style "Sri Shankaranarayana Construction Company" for the purpose of conducting business in the areas of construction work, manufacturing and sale of tiles and acquiring and developing of coffee estates.
4. In the course of its business had amassed wealth that was in the nature of joint family income, since the funds of joint family was utilized by the grandfather of the plaintiff along with his brothers as initial capital for establishing partnership business. The said partnership firm was dissolved in the year 1986 as per the Resolution Deed dated 10.07.1986. Part of the assets relating to Woddaegoode estate and all the movable and immovable assets of the firm that were not allotted to any other partner, which was in the nature of office building, furniture, 8 bank deposits, office equipment, deposits, vehicles etc., was allotted to the share of the grandfather of the plaintiff. The original copy of the Resolution Deed is in possession of defendant No.1 and photo copy is produced. It is also contended that defendant No.1 along with other family members of Narayana Shetty were inducted into the partnership firm and by utilizing the funds of the erstwhile joint family, the firm continued the business as was carried on by the previous partners, which was still in the nature of partnership firm.
5. It is further contended by the plaintiff that the grandfather passed away on 30.10.2001. Pursuant to the death of the grandfather of the plaintiff, the joint family members of 'Narayana Shetty HUF' orally partitioned the properties that were acquired and possessed at the time of death of Nayaraya Shetty on 01.04.2002. The properties and assets as partitioned by the sons and daughters were acquired from the profits that was earned from the partnership firm, which was constituted from the funds of joint family comprising of Narayana Shetty and his brothers. The family members of Narayana Shetty recorded the 9 terms of the oral partition vide a memorandum of confirmation of oral partition dated 29.04.2002 and in terms of the said partition, defendant No.1 was allotted an estate under the name and style "Ashirwad Estate" comprising lands in several survey numbers located at Kolagave village of Jagra hobli, Chikmagaluru district and the same is described in the schedule as 'A' schedule property and the same was treated as joint family property. The joint Hindu family of defendant No.1 consisted of defendant no.1 as its kartha and defendant Nos.2 and 3 along with the plaintiff as its members. Defendant No.1 in the year 1994 by utilizing the funds of Narayana Shetty HUF, which was accumulated from the partnership business conducted by the members of the joint family, purchased a property which is referred to as 'B' schedule property and the same is part of Manohar Shetty HUF. It is also contended that M/s. Akkayya Consultancy Services, a registered partnership firm, which was started with the joint family funds of Manohar Shetty HUF wherein defendant Nos.1 and 3 and the plaintiff are partners and acquired the plot in 2004 consisted of 252 room hotel, popularly known as "E-Inn" standing on it and the same is a part of 10 'Manohar Shetty HUF' and the same is described as schedule 'C' property and hence, the plaintiff along with defendant Nos.1 and 3 were entitled to equal share in A, B and C schedule properties.
6. It is further contended by the plaintiff that defendant No.2, who is the mother of the plaintiff received certain funds in the year 1992 from the funds of HUF of the plaintiff's maternal grandfather. Defendant No.2 also purchased one lakh shares of Satyam Computers from the funds of HUF and defendant No.2 sold the shares of Satyam Computers and since she fell short of funds, borrowed funds from the 'Manohar Shetty HUF' and purchased the estate at Koove village in the year 2004 and the said property is shown as schedule 'D' property and the property purchased at Javali village is referred as suit schedule 'E' property. It is contended that defendant No.2 in the year 2007 vide an oral declaration declared that suit schedule 'D' and 'E' properties to be the part of the 'Harini Shetty HUF' comprising of defendant No.2 as the kartha and the plaintiff and defendant No.3 as the members of 'Harini Shetty HUF'. In the year 2007, when the said declaration was pronounced by defendant No.2, 11 the proceeds that were acquired from the estates identified as schedule 'D' and 'E' properties, at that time when the plaintiff demanded her share from defendant Nos.1 and 2, they made an assurance that her share will be given at later point of time, but till date no steps have been taken in this regard.
7. It is also contended in the plaint that the plaintiff learnt that defendant Nos.1 and 2 have availed loans from Canara Bank and Allahabad Bank mortgaging the suit schedule properties and on failure to repay the said loan amount, the said banks had initiated multiple OA proceedings before the Debts Recovery Tribunal (DRT), Bengaluru against defendant Nos.1 and 2 and the said banks are attempting to alienate the alleged mortgaged properties, on which the plaintiff has rights. It is further contended that the said loans availed of were for facilitating the personal business requirements of defendant Nos.1 and 2 of which the plaintiff has no part on it. However, it is further held that the immovable properties that have been given as security for the said loans are in the nature of joint family properties on which the plaintiff is entitled to a share. 12
8. It is further contended that the immovable properties that have been given as security to the said loan are in the nature of joint family properties and defendant Nos.1 and 2 have allegedly executed loan agreement dated 24.12.2004 in favour of Canara Bank and similarly, have executed loan agreement dated 18.10.2003 in favour of Allahabad Bank. Defendant Nos.1 and 2 have also given security of the joint family properties by way of deposit of title deeds in favour of Canara Bank on 24.12.2004 and deposit of title deeds in favour of Allahabad Bank on 28.06.2004. The plaintiff is not a signatory to these agreements or security given on the basis of title deeds are not binding on the plaintiff or her share in the suit schedule properties. It is submitted that in view of alleged defaults committed by defendant Nos.1 and 2 in repayment of the alleged loans, Canara Bank has instituted OA No.313/2011, OA No.383/2013 and OA No.271/2014 before the DRT, Bengaluru for recovery of the alleged loan and similarly, Allahabad Bank also instituted OA No.636/2012 before the DRT, Bengaluru. It is contended that the plaintiff has a share, right, title and interest in the suit schedule properties and in view of the same, the 13 above mentioned loans or deposit of title deeds or guarantees are not binding on the plaintiff or her share in the suit schedule properties and the suit schedule properties, which are in the nature of joint family properties could not be kept as security with the Banks. It is also contended that in the year 2012, the plaintiff orally demanded that her share in the schedule properties be handed over to her by metes and bounds, but, no such response to the demands. Hence, plaintiff got issued legal notice on 21.05.2012 against the defendants but the defendants have not replied to the said notice. Hence, having no other alternative, the plaintiff filed the suit for partition. It is also contended that the defendants are making all efforts to deprive the plaintiff of her lawful right over the HUF properties hence, the plaintiff has filed the suit for the relief of partition and also declare that loan agreements dated 24.12.2004 and the deposit of title deeds dated 24.12.2004 executed by defendant Nos.1 and 2 in favour of Canara Bank as well as loan agreement dated 18.10.2003 and the deposit of title deeds dated 28.06.2004 executed in favour of Allahabad Bank are not binding on the plaintiff's share over the suit schedule properties. The plaintiff 14 also filed an application under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction restraining the defendant Nos.4 and 5 from alienating or creating third party interest or charge over the suit schedule properties during the pendency of the suit. The plaintiff reiterated the averments of the plaint in the said application by filing an affidavit.
9. Defendant No.4 appeared and filed counter affidavit contending that the suit is not maintainable as defendant No.4 has already initiated the proceedings for recovery of money, which was advanced in favour of defendant Nos.1 and 2 and by colluding with defendant Nos.1 and 2, the present suit is filed with an intention to defraud the banks and defendant Nos.1 and 2 have defrauded the different banks to an extent of more than 1200 crore. The very suit itself is not maintainable and hence, granting of temporary injunction does not arise since the suit schedule 'D' and 'E' properties have been mortgaged to this respondent - Canara Bank by Harini Shetty and the said property has been sold by this respondent bank under the provisions of the Securitization and Reconstruction of Financial 15 Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act'). The borrower M/s. SSJV Projects Private Limited and its Directors/guarantors, who are defendant Nos.1 and 2 have failed to repay the said loan and the said properties have been sold by defendant No.4 as per the provisions of SARFAESI Act, which has been questioned by defendant Nos.1 and 2 by filing writ petitions in W.P.Nos.47565-67/2014, which are pending consideration and the High Court of Karnataka passed a conditional order staying the confirmation of sale of the schedule 'D' and 'E' properties. Since the matter is seized before the Hon'ble High Court, it cannot entertain an application for injunction till the disposal of the said petitions. It is also contended that no grounds are made out to prevent this respondent-bank from exercising its right under the provisions of SARFAESI Act.
10. Defendant No.5 also contended that they cannot maintain such a suit and application and the very suit filed by the plaintiff is hit by the provisions of Sections 35 and 36 of SARFAESI Act and when the suit itself is not maintainable, the 16 question of granting an interim order does not arise. It is also contended that Apex Court in the judgment of Jagdish Singh VS Heeralal and others and also in the judgment of Sree Anandhakumar Mills Ltd. Vs. Indian Overseas Bank and others held that the suit for partition in respect of secured assets against the financial institutions is not maintainable and civil Courts have no jurisdiction to entertain such suits and defendant No.1 also approached the High Court of Karnataka challenging the Demand Notice in Writ Petition No.13932/2015 which came to be dismissed on 14.10.2020 giving liberty to approach appropriate forum i.e., the DRT and while dismissing the said writ petition, High Court of Karnataka has considered various decisions of the Apex Court with regard to maintainability of the writ petition and dismissed the same and since the said suit schedule properties have been seized by defendant No.5-Bank, if there are any claims over the suit schedule properties by anybody, the same shall be before the DRT only as per the provisions of Section 17 of SARFAESI Act since the provisions of the SARFAESI Act, which is a special Act has got overriding effect over the General law. 17
11. The Trial Court having considered the pleadings of the parties, formulated the points that whether prima-facie case is made out by the plaintiff and balance of convenience lies in favour of the plaintiff and the plaintiff will be put to greater hardship if an order of temporary injunction is refused. The Trial Court having considered the material on record in detail discussed and also taken note of Section 17 of SARFAESI Act and so also Section 34 of SARFAESI Act has come to the conclusion that the recovery proceedings have already been initiated and since the plaintiff has got a statutory right under Section 17 of the SARFAESI Act and since she has already approached the DRT, no hardship or injury will be caused to the plaintiff if the application is dismissed which is filed by the plaintiff under Order XXXIX Rule 1 and 2 of CPC. Being aggrieved by the dismissal of the application, MFA No.895/2021 is filed before this Court.
12. Writ Petition No.15801/2020 is filed against the order on memo, since both the memo and IA are considered together. The memo is filed by defendant no.4 contending that 18 the High Court in W.P.8556/2017 filed by the plaintiff held that in view of the law laid down by the Apex Court in Jagadish Singh case held that there is ouster of jurisdiction for civil Court and DRT is entitled to determine all questions in respect of properties in question and present suit is not maintainable and prayed the Court to dismiss the suit. The Trial Court having considered the memo and objection filed to the memo came to the conclusion that the plaint cannot be rejected without there being an application for rejection of plaint under Order VII Rule 11 of CPC that too after framing of issues since the plaintiff has raised the objection contending the same. The Trial Court also taken note of the fact that defendant Nos.4 and 5 have also been impleaded after framing of issues and they have also filed their respective written statements and also the statement of objections and Court has come to the conclusion regarding the jurisdiction of the Court that it needs to frame an issue in view of the defence set up by defendant No.5 and based on the memo, suit cannot be rejected without there being an issue and accordingly, additional issue is also framed and the same is treated as preliminary issue and the grounds urged in the memo is kept 19 open and it will be considered while passing orders on preliminary issue and posted the matter for hearing on preliminary issue. By challenging the order passed by the Trial Court, a writ petition is filed by the plaintiff praying this Court to quash the impugned order dated 24.11.2020 and hence, the writ petition is filed before this Court.
13. The counsel for the appellant in his arguments would vehemently contend that the appellant in the suit has categorically pleaded how the suit schedule properties are acquired and having the right since defendant Nos.1 and 2, the plaintiff and defendant No.3 have constituted the HUF. The counsel also contends that defendant Nos.4 and 5 are subsequently impleaded as parties to the suit and originally the suit was filed only against defendant Nos.1 to 3 by the plaintiff. The counsel also brought to notice of this Court Section 13 of SARFAESI Act that is procedure for recovery of money and also brought to notice Section 17 of SARFAESI Act that DRT has got powers under Sections 13 and 17, which is clear only for action and Section 34 of SARFAESI Act is also brought to the notice of 20 this Court. The counsel also would vehemently contend that whether Section 17 SARFAESI Act was complied and also the counsel brought to notice of Section 19 of DRT Act. The counsel would vehemently contend that the Jagadish's case is confined only to specific things and ouster of jurisdiction.
14. The counsel for the appellant in support of his arguments relied upon the judgment in the case of BANK OF BARODA vs GOPAL SHRIRAM PANDA reported in 2021 SCC ONLINE BOM 466 and contended that in the said judgment, Bombay High Court held in detail regarding contention of the appellant. The counsel also vehemently contend that even the plaintiff is ready to deposit the amount of 1/3rd. The counsel also in his arguments brought to notice of this Court relevant page and paragraph of the Bombay High Court judgment regarding jurisdiction is meant, the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way of its decision. The counsel also would vehemently contend that in that judgment regarding Section 9 of CPC is also discussed that to try 21 all civil suits unless barred and contend that the jurisdiction of the civil Court therefore is of the widest amplitude and scope, rather is plenary and omnipotent.
15. The counsel also relied upon the judgment reported in 2015 MH LJ 350 in the case of SHRIMANT CHHATRAPTI UDYANRAJE PRATAPSINHMAHARAJ BHOSALE Vs. SHRIMANT CHHATRAPATI VIJAYSINHRAJE SHAHUMAHARAJ BHOSALE AND OTHERS wherein held that a litigant having a grievance of a civil nature has independent of any statute a right to institute a suit in some Courts or the other unless its cognizance is either barred expressly or impliedly. The mere fact that a portion of the claim is excluded from the jurisdiction of the civil Court is not a bar to the trail particularly of the remaining portion of the same suit which is not so excluded. The counsel referring Sections 13 and 17 contend that tribunal is created by a statute jurisdiction has to be conferred specifically and not presumed. The Tribunal has to act within the parameters of said jurisdiction as conferred. What is prohibited by Section 34 of the SARFAESI Act is any suit or proceeding in 22 respect of any matter which the DRT is empowered by or under the SARFAESI Act to determine, which would relate to matters under Section 13 of the SARFAESI Act.
14. The counsel also relied upon the judgment reported in 2017 SCC ONLINE BOM 7740 in the case of PADMA ASHOK BHATT vs ORBIT CORPORATION LIMITED AND OTHERS wherein it is held that no doubt, any person can approach DRT under Section 17 if he is aggrieved by an order under Section 13(4) of SARFAESI Act but the point to be considered still is, if any particular relief claimed/to be claimed by such person can be granted by the DRT. If not, there is no question of relegating him to any application under Section 17. His remedy before the civil Court in respect of that relief is clearly not barred by the provisions of Section 34 of SARFAESI Act read with Section 17 of that Act. The counsel referring these judgments vehemently contend that the answer by the Court with regard to the jurisdiction is concerned held that jurisdiction to the DRT to decide all matters relating to Sections 13 and 17 of SARFAESI Act and also an observation is made that the 23 jurisdiction of the civil court to decide all the matters of civil nature, excluding those to be tried by the DRT under Section 13 and 17 of the SARFAESI Act and hence, the filing of suit for the relief of partition is not barred under Section 9 of CPC and the plaintiff can seek the relief. The counsel also relied upon the judgment of this Court reported in AIR 2006 KARNATAKA 21 in the case of KRISHNA AND OTHERS vs KEDARNATH AND OTHERS wherein the Division Bench of this Court held that rights or claims for partition of properties which are in nature of civil rights, cannot be stopped. Plaintiffs filed suits for partition of joint family properties, which also includes properties mortgaged to Bank, jurisdiction of civil Court to try suit, is not barred.
15. The counsel also relied upon the judgment reported in 2022 LIVELAW (SC) 973 in the case of MRS.LEELAMMA MATHEW vs M/S INDIAN OVERSEAS BANK AND OTHERS and brought to notice of this Court paragraphs 4.4 and 5.2 wherein discussion with regard to Section 34 of SARFAESI Act wherein held that at the outset it is required to be noted that the 24 suit was for damages/compensation, with respect to the balance land, which could not have been decided by the DRT or Appellate Tribunal, Section 34 of the SARFAESI Act shall be applicable only in a case where the Debt Recovery Tribunal and / or Appellate Tribunal is empowered to decide the matter under the SARFAESI Act. The counsel referring this judgment would vehemently contend that the scope for suit of the partition cannot be taken away and the trial court committed an error in passing the order on the application filed under Order XXXIX Rule 1 and 2 of CPC and also memo filed by the defendant No.4 with regard to the jurisdiction is concerned. Hence, it requires interference of this Court by setting aside the order passed on memo and also set aside the order of rejection of application and grant the relief of temporary injunction. The plaintiff is ready to deposit 30% of the amount.
16. Per contra, the learned counsel appearing for respondent No.4 in his arguments he would vehemently contend that the very suit is barred under Section 34 of the SARFAESI Act. The counsel also would vehemently contend that though 25 earlier an application filed by the plaintiff before the DRT, the same was rejected and subsequently, an opportunity was given to implead him as a party in the DRT proceedings and accordingly, the plaintiff became a party to the DRT proceedings. The counsel would vehemently contend that the suit itself is not maintainable. The issue is also involved between the parties is with regard to suit schedule 'D' and 'E' of the property and when there is a specific bar under Section 34 of the SARFAESI Act, a separate suit cannot be entertained. The counsel also brought to notice of this Court to the averments made in the plaint with regard to the oral declaration made by the kartha of the joint family that is subsequent to the availment of the loan by defendant Nos.1 and 2. The counsel also would vehemently contend that the HUF was constituted by the mother in the year 2007 but the property was mortgaged in the year 2003 itself. Hence, the very contention that the loan documents are not binding on the plaintiff but the fact that the plaintiff as well as her sister, who has been arrayed as defendant No.3, are minors at the time of availing the loan and also the question of becoming parties to the loan agreement and also not signed the 26 documents cannot be accepted. The counsel for respondent No.3 also would vehemently contend that respondent No.3 adopts the arguments of the appellant counsel since she is the sister of the plaintiff and she is also ready to deposit 1/3rd of the amount as contended by the appellant.
17. The learned counsel appearing for respondent No.5 reiterating the arguments of respondent No.4 would contend that when they committed default, notice was given and made them as party in the year 2018 itself and they have also filed written statement and I.A. contending that there is no jurisdiction to invoke SARFAESI Act and hence, the suit is liable to be dismissed and bank already initiated the proceedings and also taken possession and series of cases are filed. It is also contend that joint family properties were never mortgaged in the year 2003 or 2004 and hence, the very appeal and the writ petition are not maintainable.
18. The counsel for respondent Nos.1 and 2 submits that Special Leave Petition was filed and dispute is in respect of item Nos.(d) and (e) of the property and there is no collusion as 27 contended and the suit is not filed in order to prevent the financial institutions to recover the amount.
19. The counsel appearing fro respondent No.4 in his arguments he would vehemently contend that the Court below in paragraph 19 held that the plaintiff cannot maintain the suit and also Rs.900 crore is due in Canara Bank and also the Division Bench of this Court in writ appeal held that coffee estate is also liable for recovery and the suit was filed in the year 2012 and the interlocutory application is also filed only after SARFAESI Act is invoked. The counsel in support of his arguments relied upon the judgment of this Court in the case of KRISHNA vs KEDARNATH referred supra which is relied by the appellant counsel also in the case and though Court held that the suit is maintainable and he brought to notice of this Court paragraph 8 wherein an observation is made that status quo order passed in the suits shall stand dissolved as there is express bar under Section 34 of the Act. The Bank is at liberty to proceed for the recovery of its amount by taking necessary steps in respect of the mortgaged properties by the debtors under the provisions of 28 the Act, as the same are mortgaged for collateral security of the loan amount borrowed by them.
20. The counsel also relied upon the judgment in the case of JAGDISH SINGH vs HEERALAL AND OTHERS reported in MANU/SC/1126/2013 and brought to notice of this Court paragraphs 16 to 18 wherein discussed Section 17 and also brought to notice of this Court paragraph 18 wherein it discussed that expression 'any person' referred to in Section 17 would take in the plaintiffs in the suit as well. Therefore, irrespective of the question whether the civil suit is maintainable or not, under the Securitisation Act itself, a remedy is provided to such persons so that they can invoke the provisions of Section 17 of the Securitisation Act, in case the bank adopt any measure including the sale of the secured assets, on which the plaintiffs claim interest.
21. The counsel also brought to notice of this Court paragraph 22 wherein discussed with regard to Section 34 of SARFAESI Act that no civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a 29 DRT or an Appellate Tribunal is empowered by or under the Securitisation Act to determine. The counsel also brought to notice of this Court paragraph 23 wherein an observation is made that civil Court jurisdiction is completely barred, so far as the "measure" taken by a secured creditor under sub-section (4) of Section 13 of the Securitisation Act, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal, to determine as to whether there has been any illegality in the measures taken.
22. The counsel also relied upon the judgment of the Apex Court in the case of MARDIA CHEMICALS LIMITED AND OTHERS vs UNION OF INDIA AND OTHERS reported in MANU/SC/0323/2004 and brought to notice of this Court paragraph 50 wherein a discussion was made that a reading of Section 34 shows that the jurisdiction of the civil Court is barred in respect of matters which a DRT or appellate Tribunal is empowered to determine in respect of any action taken. The bar of civil Court thus applies to all such matters which may be taken cognizance of by the DRT, apart from those matters in 30 which measures have already taken under sub-section (4) of Section 13.
23. The counsel also relied upon the judgment of the Apex Court in the case of UNITED BANK OF INDIA vs SATYAWATI TONDON AND OTHERS reported in MANU/SC/0541/2010 and brought to notice of this Court paragraph 2 wherein it discussed that an analysis of the provisions of DRT Act shows that primary object of that Act was to facilitate creation of special machinery for speedy recovery of the dues of banks and financial institutions. The counsel also brought to notice of this Court paragraph 27 wherein an observation is made that it is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues.
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24. The counsel also relied upon the judgment of the Apex Court in the case of THE AUTHORISED OFFICER, STATE BANK OF INDIA vs ALLWYN ALLOYS PVT. LTD., AND OTHERS reported in MANU/SC/0581/2018 wherein also discussed with regard to the mandate of Section 13 and in particular, Section 34 of SARFAESI Act clearly bars filing of a civil suit.
25. The counsel also relied upon the judgment of the Apex Court in the case of SREE ANANDHAKUMAR MILLS LTD. vs INDIAN OVERSEAS BANK AND OTHERS reported in MANU/SC/0638/2018 and in paragraph 3 a discussion was made that a suit for partition would not be maintainable in a situation where proceedings under the SARFAESI Act had been initiated and hence, prayed the Court to dismiss the appeal as well as writ petition.
26. In reply to the arguments of the learned counsel for the respondent, the counsel for the appellant in the appeal and the counsel for the petitioner in the writ petition would vehemently contend that in the plaint, it is categorically pleaded 32 that how property revolves upon the HUF and though the mother and father have availed loan from the bank, they cannot curtail the right of the daughters as the daughters are having a right over the property of her family and hence, the suit is filed for the relief of partition and other relief's also sought like agreements executed by the mother and father are not binding on the plaintiff. Thus, this Court has to grant the relief of temporary injunction restraining both the banks from alienating the property to third party since the appellant is ready to deposit 30% of the amount as contended earlier. Hence, prayed to allow the writ petition and set aside the order passed on the memo filed in the appeal.
27. Having heard the learned counsel for the appellant and learned counsel for the respondent and also the principles laid down in the judgments referred (supra) by the respective counsels, the points that would arise for consideration of this Court are:
(1) Whether the Trial Court has committed an error in rejecting the application filed under Order XXXIX Rule 1 and 2 of CPC?
33(2) Whether the writ petition filed by the petitioner requires to be allowed by setting aside the order impugned?
(3) What order?
Point No.(1)
28. Having heard the respective counsel and also on perusal of the material available on record, an application is filed before the Trial Court under Order XXXIX, Rule 1 and 2 of CPC praying the Court to restrain the defendant Nos.4 and 5 from alienating or creating any third party interest or charge over the suit schedule properties during the pendency of the suit. The plaintiff contend that herself and defendant No.3 are daughters of defendant Nos.1 and 2, who are the husband and wife and parents of the plaintiff and defendant No.3 and all of them constitute Hindu Undivided Family. It is also the case of the plaintiff that there was a oral partition dated 29.04.2022 between the defendant No.1, his brothers and sisters and the defendant No.1 acquired the suit 'A' schedule property and out of the income generated from the said suit 'A' schedule property, he had acquired suit 'B' and 'C' schedule properties and the 34 defendant No.2, who had received certain funds in the year 1992 from the funds of HUF of plaintiff's maternal grand-father, had purchased shares of Sathyam Computers which were sold by her and out of the sale proceeds, she had purchased suit 'D' and 'E' schedule properties, which are all treated as HUF properties and she also got a share in the suit schedule properties being a member of HUF, since defendant Nos.1 and 2 brushed aside her demand to give her share.
29. It is also the contention that she came to know that defendant Nos.1 and 2 had availed loan from defendant Nos.4 and 5-Banks by pledging the properties and OA proceedings are initiated before the DRT, in order to recovery the loans sanctioned to them. It is the main contention that defendant Nos.1 and 2 are not having absolute right to mortgage the property and they are having share. The defendants contend that suit 'D' and 'E' schedule properties have been mortgaged by the defendant No.2 under the provisions of the SARFAESI Act and the borrower M/s.SSJV Projects Pvt. Ltd. and its Directors/Guarantors, who are the defendant Nos.1 and 2 herein 35 and now the property is sought for sale by initiating the proceedings before the DRT.
30. Having considered the sum and substance of the contentions of the respective parties, it is not in dispute that properties were mortgaged in favour of both the banks and there is no dispute with regard to the relationship between the parties. The fact that defendant Nos.4 and 5 also initiated recovery proceedings under Section 13(4) of the SARFAESI Act by issuing notice to defendant Nos.1 and 2 is also not in dispute. The defendant No.4 also auctioned the suit 'D' and 'E' schedule properties, which were standing in the name of the defendant No.2. It is also not in dispute that the defendant Nos.1 and 2 have filed the writ petition before this Court and these proceedings were initiated earlier to the filing of the present suit seeking the relief of partition. In the suit, they have sought for the relief of partition and also prayed the Court to declare that agreement entered into between the defendant Nos.1 and 2 in favour of Canara Bank and Allahabad Bank dated 24.12.2004 and deposit of title deed on the very same day in favour of 36 Canara Bank and loan agreement dated 18.10.2003 and also deposit of title deed dated 28.06.2004 executed by defendant Nos.1 and 2 in favour of Allahabad Bank are not binding on the plaintiff. The plaintiff inter alia also sought for an order of injunction not to create any charge over the suit schedule properties.
31. It is important to note that the plaintiff was aged about 24 years in 2012 and hence, it is clear that she was a minor when the agreement was entered into between the bank and the defendant Nos.1 and 2 in the year 2003 and 2004 and so also, the defendant No.3, who is the sister of the plaintiff was aged about 22 years in 2012 and she was also a minor at the time of depositing the title deed by the defendant Nos.1 and 2. I have already pointed out that defendant Nos.1 and 2 are none other than the parents of the plaintiff and defendant No.3. It is also not in dispute that an agreement was entered into between the defendant Nos.1 and 2 and the banks and title deed was deposited.
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32. Now, this Court would like to refer Section 13 of the SARFAESI Act, wherein provision is made for enforcement of security interest i.e., in respect of security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or Tribunal, by such creditor in accordance with the provisions of this Act. This Court also would like to refer Section 17 of the SARFAESI Act, wherein provision is made that any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under this Chapter, (may make an application along with such fee, as may be prescribed) to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken. These two provisions were brought to notice of this Court by the learned counsel for the appellant during the course of his argument. The counsel also brought to notice of this Court Section 19 of the SARFAESI Act i.e., 'right of borrower to receive compensation and costs in certain cases'.
33. However, this Court would like to refer Section 34 of the SARFAESI Act, wherein there is a bar as to the jurisdiction of 38 the Civil Court. Section 34 of the SARFAESI Act is very clear that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and 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 this Act or under the Recovery of Debts due to Banks and Financial Institutions Act, 1993.
34. Having perused the provisions of the SARFAESI Act, Section 13 of the Act provides a right to enforce security interest, Section 17 contemplates as to the application against measures to recover secured debts, Section 19 contemplates right of borrower to receive compensation and costs in certain cases and so also, Section 34 contemplates with regard to bar of jurisdiction of the Civil Court while enforcing the security interest and no injunction can be granted.
35. In the case on hand, the relief is sought to restrain the defendant Nos.4 and 5 from alienating or creating charge 39 over the suit schedule properties. The defendant Nos.4 and 5 are the financial institutions is not in dispute. But, the very contention of the plaintiff in the plaint is that properties are HUF properties and pleaded that, subsequently, she came to know about borrowing of loan by the defendant Nos.1 and 2. It is also the claim in the plaint that defendant No.2 in the year 2007 vide an oral declaration declared that schedule 'D' and 'E' properties to be part of the defendant No.2 HUF comprising of herself as the kartha; and the plaintiff and the defendant No.3 as the members of the Harini Shetty HUF. The said declaration was made in the presence of two witnesses.
36. It has to be noted that the plaintiff made an application before the DRT to come on record and the same was rejected and against the said order, a writ petition was filed before this Court and the said writ petition was allowed and the plaintiff was allowed to be brought on record as a party to the proceedings which are pending before the DRT. It is also important to note that the suit was filed only against defendant Nos.1 to 3 at the first instance and thereafter, the financial 40 institutions were impleaded as defendant Nos.4 and 5 in the said suit. The fact that already charge was created in respect of the suit schedule properties by the financial institutions was within the knowledge of the plaintiff, but subsequently, the defendant Nos.1 and 2 have availed the loan from the defendant Nos.4 and 5, who are the public sector banks and floated the company by securing the suit schedule properties. The said loans are secured loans and admittedly, the suit schedule properties have been mortgaged by defendant Nos.1 and 2 long back in the year 2003 and 2004 and by that time, the plaintiff and the defendant No.3 were minors.
37. It is also an admitted fact that defendant Nos.4 and 5 have initiated various recovery proceedings against the defendant Nos.1 and 2 under the provisions of SARFAESI Act. It is also not in dispute that defendant No.4 also auctioned the suit 'D' and 'E' schedule properties and these are the proceedings initiated prior to filing of the suit and hence, there is a collusion between the plaintiff and defendant Nos.1 to 3 in filing the suit and the same is apparent on record. Hence, it is clear that the 41 suit filed is offshoot of the recovery proceedings initiated by defendant Nos.4 and 5. Having perused the averments of the plaint, nowhere it is alleged that defendant Nos.1 and 2 i.e., the parents of the plaintiff and defendant No.3 misused the funds which have been availed from the banks and the plaintiff only plead that later she came to know about the pledging of the properties. Admittedly, the proceedings are initiated under Sections 13 and 17 of the SARFAESI Act and there is a bar under Section 34 of the SARFAESI Act to grant any relief of injunction.
38. No doubt, it is also a settled law, learned counsel for the 0defendant No.5 has relied upon the judgment of the Apex Court in JAGDISH SINGH's case, wherein the Apex Court discussed in detail that no suit can be initiated against the bank institution curtailing their right and it is also specific that any person aggrieved by any order made by the DRT under Section 17 may also prefer appeal to the Appellate Court under Section 18 of the Act. Hence, it is clear that the expression 'any person' under Section 17 of the SARFAESI Act is of wide import and takes within its fold not only the borrower but also the guarantor 42 or any other person who may be affected by action taken under Section 13(4) of the SARFAESI Act. Therefore, irrespective of the question whether the civil suit is maintainable or not, under the SARFAESI Act itself a remedy is provided to such persons so that they can invoke the provisions of Section 17 of the SARFAESI Act, in case the bank (secured creditor) adopt any measure including the sale of the secured assets, on which the plaintiffs claim interest. The Apex Court also discussed the very scope of Section 34 of the SARFAESI Act in the said judgment. Hence, it is clear that jurisdiction of the Civil Court is completely barred so far as measure taken by the secured creditor under sub-section (4) of Section 13 of the SARFAESI Act against which the aggrieved person has right of appeal before the DRT or Appellate Tribunal, who determine as to whether there has been any illegality in the measures taken.
39. No doubt, learned counsel appearing for the appellant in his argument vehemently argued that High Court of Judicature at Bombay discussed in detail with regard to the jurisdiction of the Civil Court including Section 9 of CPC, the 43 Court would try all civil suits unless the same is barred and in this judgment, the High Court of Judicature at Bombay in detail discussed with regard to Section 34 of the SARFAESI Act and since there is a bar, the Court held that Civil Court to decide all the matters of civil nature, including those to be tried by the DRT under Section 17 of the SARFAESI Act in relation to enforcement of security interest of a secured creditor is barred by Section 34 of SARFAESI Act, that means jurisdiction of the DRT to decide all matters relating to Sections 13 and 17 of the SARFAESI Act. The counsel also brought to notice of this Court the fact that Civil Court would have jurisdiction, that too, when it is prima facie apparent from the face of record that the relief claimed, is incapable of being decided by the DRT, under Section 17 of the DRT Act, 1993 read with Sections 13 and 17 of the SARFAESI Act.
40. The counsel would vehemently contend that the judgment of the JAGDISH SINGH's case does not lay down that the DRT is competent to pass declaratory relief or a decree of ownership or partition or separate possession of HUF property 44 or ancestral property. However, it has to be noted that in the said judgment, the Court also held that jurisdiction of the Civil Court to decide all the matters of civil nature excluding those order tried by the DRT under Sections 13 and 17 of the SARFAESI Act in relation to enforcement of security interest of a secured creditor. Here is also a case of secured creditor and the suit is not barred under Section 34 of the SARFAESI Act.
41. In the case on hand, it has to be noted that suit is filed for the relief of partition and this Court also, in the judgment of KRISHNA's case reported in AIR 2006 KARNATAKA 21 held that rights or claims for partition of property which are in the nature of civil rights cannot be stopped by the plaintiff by filing suit for partition of joint family properties and the jurisdiction of the Civil Court to try the suit is not barred.
42. The recent judgment of the Apex Court in MRS.LEELAMMA MATHEW's case reported in 2022 LIVE LAW (SC) 973 which was also relied upon by the learned counsel for the appellant is also clear that Section 34 shall be applicable only in a case where the Debt Recovery Tribunal and/or Appellate 45 Tribunal is empowered to decide the matter under the SARFAESI Act and also held that the jurisdiction of the Civil Court is absolutely barred, except in case the plaintiff is able to show fraud or misrepresentation. But, in the case on hand, nothing is pleaded by the plaintiff with regard to the fraud by defendant Nos.1 and 2 in pledging the property. It is also important to note that suit was filed for the relief of partition and the same could not have been decided by the DRT or Appellate Tribunal and Section 34 of the SARFAESI Act shall be applicable only in a case where the DRT or Appellate Tribunal is empowered to decide the matter in SARFAESI Act as held by the Apex Court in MRS. LEELAMMA MATHEW's case.
43. This Court also would like to refer the judgment of the Madras High Court in SUMATHI VS. SENGOTTAIYAN AND OTHERS reported 2010 (3) CTC 53, wherein it is held that plaintiff may institute a suit for partition before the competent Civil Court but she cannot lawfully challenge the proceedings initiated by the secured creditor under the SARFAESI Act, before the Civil Court as there is a clear bar under Section 34 of the 46 SARFAESI Act. Section 34 of the SARFAESI Act imposes a bar on the Civil Court to grant any relief of injunction with respect to any action taken in pursuance of the power conferred upon the SARFAESI Act. Therefore, the Trial Court has no authority to entertain the prayer for injunction sought for by the plaintiff as against the secured creditors, who had already initiated proceedings under the SARFAESI Act.
44. This Court also would like to rely upon the judgment of the Madras High Court in INDIAN BANK, RAJAPALAYAM, THROUGH ITS CHIEF MANAGER, THENKASI ROAD, RAJAPALAYAM VS. MINOR R. SAJANITHA, REPRESENTED BY NEXT FRIEND AND GRAND FATHER MRS. BHIMRAJA AND OTHERS reported in C.R.P. (NPD)(MD) NO.46 OF 2015 dated 11.01.2019, wherein the Court has discussed with regard to initiation of suit and observed that at the instigation of respondents 1 and 2, the plaintiffs have filed this vexatious suit claiming partition of the schedule properties. Since the petitioner Bank has taken action over the secured assets under the SARFAESI Act the plaintiffs are barred from making any claim in 47 the plaint under Section 17 of the Act before this Court and they have to file only appeal before the Debt Recovery Tribunal under Section 17 of the Act. The Court also further discussed that DRT cannot determine a partition suit and that an injunction order can be granted by the DRT Court and only the Civil Court has jurisdiction to entertain a partition suit and the Civil Courts have no jurisdiction to decide any issues under the SARFAESI Act.
45. This Court also would like to rely upon the judgment in SRI CHANDRU AND ANOTHER VS. K. NAGARAJAN in A.S.NO.277 OF 2008 dated 12.03.2012, wherein an observation is made in Para No.4 of the judgment that the sole intention of the plaintiffs is to defeat the lawful claim of the 5th defendant and an observation is also made in Para No.17 referring the judgment of the Apex Court in DHULABHAI VS. STATE OF MADHYA PRADESH reported in AIR 1969 SC 78, the Civil Court indisputably has the jurisdiction to try a suit. If the suit is vexatious or otherwise not maintainable action can be taken in respect thereof in terms of the Code. In Para Nos.30 and 31 of the judgment, the Apex Court taken note of the similar 48 circumstances that suit is filed by the plaintiffs, who are aged 27 and 32 years and the plaintiffs were born in 1981 and 1975 and they were minors as in the case on hand. Let us assume that the suit properties are the joint family properties. The loan was borrowed by defendants 1 and 2 for their textile business. The 1st defendant, being the father, has power to deal with the properties by creating security by way of equitable mortgage for business/family necessity. The 1st defendant, being the Manager/kartha of the family, represents all the family members in all transactions. When the bank loan was obtained for the benefit of the family/business purposes, the security created is binding on the plaintiffs and defendants 3 and 4. The suit appears to have filed only to delay/evade the repayment of the loan amount to the 5th defendant Bank and upheld the order of the Trial Court and rightly not granted any relief.
46. This Court also would like to rely upon the judgment of the Delhi High Court in RAJAT PANGARIA VS. STATE BANK OF BIKANER AND JAIPUR AND OTHERS reported in (2008) 141 COMP CAS 323 (DRAT), wherein also the Delhi High Court 49 held with regard to recovery of loan taken from the bank by the HUF and power of karta to contract debts for benefit of estate, binding both on minors and adults in family, karta mortgaging undivided share of his minor son for family business and for legal necessity, minor after attaining majority cannot challenge mortgage of his undivided share. The appellant could challenge the mortgage with regard to his share only on establishing that the mortgage had been created without legal necessity or that it was tainted with illegality or immorality. The mortgage was binding on the appellant.
47. I have already pointed out that, in the plaint, the plaintiff has nowhere stated that loan is availed for any illegality or immorality and the plaintiff and defendant No.3 were minors at the time of availing the loan by the defendant Nos.1 and 2 and the very pleading in the plaint is clear that they invested the money for business and it is a HUF property and the same cannot be sold. But, the fact is that loan is availed by the defendant Nos.1 and 2 when the plaintiff and defendant No.3 50 were minors is not in dispute and no fraud has been pleaded in the plaint.
48. Further, the judgment of the Apex Court in ELECTROSTEEL CASTINGS LIMITED VS. UV ASSET RECONSTRUCTION COMPANY LIMITED AND OTHERS reported in (2022) 2 SCC 573 is also very clear that, if the loan transaction is fraudulent, then a person can invoke the jurisdiction of the Civil Court and mere mentioning and using the word "fraud"/"fraudulent", held that it is not sufficient to satisfy the test of "fraud"- a pleading/using the word "fraud"/"fraudulent" without any material particulars as required in terms of Order 6, Rule 4 CPC, would not tantamount to pleading of "fraud" and considering the pleadings and the averments in the suit, held that the allegations of "fraud" were made without any particulars and only with a view to get out of the bar under Section 34.
49. In the case on hand also, I have already pointed out that there is no pleading as to fraud/fraudulent act is alleged against the defendant Nos.1 and 2 in the suit. It is also 51 apparent on record that suit is filed after initiation of proceedings by the financial institutions for recovery of the amount which was due and both the defendant Nos.1 and 2 have committed default in payment of the loan amount which was availed. Hence, the Court has to take note of the said fact into consideration while considering the prima facie case and mere filing of suit and seeking the relief of injunction is not enough to grant the discretionary relief and the Court has to look into the prima facie case and also the bar under Section 34 of the SARFAESI Act to grant such injunction.
50. I have already pointed out that, admittedly, the plaintiff and defendant No.3 were minors at the time availing the loan and loan is also taken for the benefit of the family and no fraud is pleaded in the plaint against defendant Nos.1 and 2. When such being the case, it is very clear that, in order to avoid and drag the recovery proceedings initiated by the defendant Nos.4 and 5 against the properties which were pledged with the bank, the present suit is filed and the same is nothing but offshoot of recovery proceedings. Hence, the Trial Court has not 52 committed any error in declining to grant the relief of temporary injunction and the appellant has not made out any ground to set aside the order of the Trial Court and to reverse the findings of the Trial Court. Accordingly, I answer point No.(1) as 'negative'. Point No.(2)
51. The writ petition is filed challenging the order of the Trial Court by filing a memo and the same is filed by defendant No.4 before the Trial Court with regard to Section 34 of SARFAESI Act stating that a writ petition is filed before the High Court in W.P.No.8556/2017 by the plaintiff and also relied upon the judgment of JAGDISH SINGH's case, wherein there is a ouster of jurisdiction for Civil Court and DRT is entitled to determine all the questions in respect of the properties in question and suit is not maintainable. The same is also resisted by the plaintiff by filing objections contending that based on the memo filed by the defendant No.4, the Court cannot consider the matter without there being an application under Order 7, Rule 11 of CPC. The Trial Court also taken note of the fact that defendant Nos.4 and 5 have been impleaded after framing of issues and earlier they were not made as parties to the 53 proceedings and subsequent to the impleadment, they have also filed the written statement and additional issues were not framed and the Trial Court also noted that plaintiff insisted to pass order on the application filed under Order XXXIX, Rule 1 and 2 of CPC and thereafter, arguments were heard on the application as well as the memo. Hence, the Trial Court comes to the conclusion that having perused the records and defence set up, comes to the conclusion that additional issue regarding jurisdiction of Court needs to be framed in view of the defence set up by the defendant No.5 and rightly comes to the conclusion that based on the memo, the suit cannot be considered and dismissed without there being an issue in this regard. Hence, additional issue was framed and the same was treated as preliminary issue in respect of the jurisdiction is concerned and observed that contention raised in memo is kept open and the same will be considered while passing the order on preliminary issue and the same has been challenged before this Court by the petitioner.
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52. Having considered the grounds urged in the writ petition, it is the contention of the petitioner that a perusal of the RCTs as well as the settlement deed would clearly go to show that, at an undisputed point of time, the suit properties were acquired by defendant Nos.1 and 2 by way of partition between the siblings. It also contended that when the suit is filed for the relief of partition, the Court has to adjudicate the same and only on the ground that SARFAESI Act attracts, the Court cannot decide the issue. But, the fact is that an additional issue is framed regarding maintainability of the suit and with regard to the bar under any statute and no decision is taken on the memo and the Trial Court also observed that suit cannot be decided on memo and also framed a preliminary issue with regard to the jurisdiction is concerned and the same is not yet decided and the contention raised in the memo is also kept open and it is also made clear by the Trial Court that the same will be considered while passing the order on preliminary issue. When such finding is given, I do not find any error committed by the Trial Court in deferring the memo for consideration along with the preliminary issue. Hence, I do not find any ground to set 55 aside the order by allowing the writ petition and the petitioner has not made out any ground to set aside the order passed on the memo. Accordingly, I answer point No.(2) as 'negative'. Point No.(3)
53. In view of the discussions made above, I pass the following:
ORDER The appeal in M.F.A.No.895/2021 and the writ petition in W.P.No.15801/2020 are dismissed.
Sd/-
JUDGE SN/ST