Madhya Pradesh High Court
Hariram vs Jat Seeds Greeding And Warehousing ... on 11 July, 2017
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1:- Misc. Appeal No.1998 of 2016.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Vivek Rusia)
Misc. Appeal No.1998 of 2016
Hariram s/o Laxminarayan Patidar
VERSUS
Jat Seeds Greeding and Warehousing
*****
Shri Sameer Athawale, learned counsel for the appellant.
Shri Abhinav Malhotra, learned counsel for the Respondent.
*****
O R D E R
( Passed on this 11th day of July, 2017 ) THE appellant/plaintiff has filed the present appeal under Order XLIII Rule 1 (a) of CPC against the order dated 25.10.2016 passed in Civil Suit No.16-A/2014 by Additional District Judge, Dharampuri, District Dhar by which the plaint has been returned under Order VII Rule 10 of CPC while deciding the Issue No.8 as preliminary issue.
[2] Facts of the case, in short, for disposal of this appeal are as under :-
(a) The appellant/plaintiff has filed the suit for specific performance, permanent injunction and damages against the Respondent/defendant. As per the pleading in the plaint, the ICICI Bank, Indore has sold the agricultural land of Survey No.91/1/1 area 0.582 hectares, Survey No.91/1/2 area 0.292 hectares, Survey No.91/1/3 area 0.292 hectares and Survey No.91/2 area 1.265 hectares; total 2.431 hectares of Village Guljhara, Dhamnod, Tehsil Dharampuri,
-: 2:- Misc. Appeal No.1998 of 2016.
District Dhar mortgaged as security to recover his secured debts on 22.02.2011. The defendant participated in the auction proceedings and was declared as successful bidder. The Bank has agreed to issue sale certificate in his favor for the above the land in total consideration of Rs.3.00 crores . Initially the defendant has deposited Rs.80.00 lacs with the bank and he was required to deposit the balance amount within the time given by the Bank.
(b) It is further pleaded that the defendant could not arrange the money to deposit the balance amount, therefore, he gave an offer to the plaintiff to become co- purchaser of the said land. Since the plaintiff and the defendant were having cordial relation and he was having faith on the defendant, therefore, he has accepted the offer and agreed to invest Rs.1.5 crores in the said transaction. The defendant firm has inducted the plaintiff as a Partner by way of Partnership Agreement dated 23.08.2012 and at that time the plaintiff has paid the amount of Rs.5.00 lacs vide Cheque No.003382 dated 22.08.2012. Thereafter he has also paid the amount of Rs.70.00 lacs vide Cheque No.20359 dated 24.12.2012 and an agreement was executed between the plaintiff and the defendant on 11.12.2012. Thereafter the plaintiff has paid the balance amount up to 21.12.2012 to the defendant.
(c) That by of the agreement dated 11.12.2012, it was agreed between them that they shall jointly pay the sale amount, taxes and other liabilities to the Bank and thereafter bank shall issue sale certificate in the name of Defendant Firm. It has further been agreed that they shall
-: 3:- Misc. Appeal No.1998 of 2016.
jointly develop the land and after approval by the Town and Country Planning, they would sale the plots and share the loss and profit in the ratio of 50 - 50%.
(d) The plaintiff has further pleaded in para 23 of the plaint that he heard certain whisper in the market that the defendant is getting the entire land transferred in his name from the Bank. When he tried to inquire from him, the defendant did not give the satisfactory reply, therefore, the plaintiff has apprehended that the intention of the defendant is not bona-fide. Therefore, he gave a notice through his counsel on 14.07.2014. When the defendant did not give any satisfactory reply then plaintiff served him legal notice and thereafter filed the present suit in the month of September, 2014 seeking the relief of specific performance of agreements dated 23.08.2012 and 11.12.2012, permanent injunction and damages along with an application under Order XXXIX Rule 1 & 2 of CPC for temporary injunction .
(e) The defendant filed the written statement as well as reply to the application under Order XXXIX Rule 1 & 2 of CPC. In the written statement he has stated that he took the money as a loan from the plaintiff and he intent to return to him but he has unnecessary filed the suit with mala-fide intention to harass him. He is ready and willing to refund the balance amount which he took as a loan from the plaintiff. The Bank has issued a Sale Certificate in his favor, therefore, the ICICI Bank is a necessary party in the plaint. The agreement dated 23.08.2012 is not registered deed therefore, no decree of specific performance can be granted. It has also been pleaded that under Section 34 of the
-: 4:- Misc. Appeal No.1998 of 2016.
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [in brief "the SARFAESI Act, 2002"], the present suit is not maintainable as the jurisdiction of Civil Court is barred.
(f) Vide order dated 29.09.2014 the Trial Court has directed the parties to maintain the status-quo, . Vide order dated 04.12.2014, the Trial Court has finally disposed of the application under Order XXXIX Rule 1 & 2 of CPC in favour of the plaintiff. The defendant filed Misc. Appeal before this Court has Misc. Appeal No.124 of 2015. By order dated 09.08.2016 this Court has declined to interfere with the order of temporary injunction and dismissed the Misc. Appeal with the direction to the Trial Court to decide the suit within a period of four months.
(g) On the basis of pleadings, by order dated 27.01.2015 the Trial Court has framed 9 issues for adjudication and directed the parties to argue on Issue Nos.7-v, 7-c and 8 for deciding them as a preliminary issues. For ready reference, the issues framed by the Trial Court are reproduced below :-
" &%% okn iz'u %%& ¼vkt fnukad 27@01@2015 dks fufeZr½ 1& D;k izfroknh fnukad 23-08-2012 dks Hkkxhnkjh vuqca/k i= ,oa fnukad 11-12-2012 dks vuqca/k i= fu"ikfnr dj oknh dks oknxzLr Hkwfe;ksa ds laca/k esa viuk Hkkxhnkj gksuk Lohdkj fd;k gS \ 2& D;k D;k oknh oknxzLr Hkwfe;ksa ds laca/k esa Hkkxhnkj ds gSfl;r ls izfroknh dks 1]63]00]000@ :i;s iznku fd;k gS \ 3& D;k oknh oknxzLr Hkwfe;ksa ds dz; fodz; ls gksus okys gkfu ,oa ykHk esa vk/ks va'k rd dk gdnkj gS \ 4& D;k oknh okni= ds dafMdk 30&v esa ;kfpr vkKkid O;kns'k ,oa dafMdk 30 c esa ;kfpr LFkkbZ fu"ks/kkKk ds vkKfIr dk vf/kdkjh gS \
-: 5:- Misc. Appeal No.1998 of 2016.
5& D;k oknh] izfroknh ls {kfriwfrZ jkf'k ds :i esa 50]00]000@ :i;s izkIr djus dk vf/kdkjh gS \ 6& D;k oknh Hkkxhnkjh QeZ cuus rd Lo;a }kjk izfroknh dks fn;s x;s :i;ksa ij Ms<+ :i;s lsdMk ds nj ls uqdlkuh izkIr djus dk vf/kdkjh gS \ 7&v D;k vk;-lh-vk;-lh-vk;- cSad izdj.k esa vko';d i{kdkj gS \ 7&c ;fn gkW rks izHkko \ 8& D;k ;g okn Hkkxhnkjh vf/kfu;e ,oa ljQslh vf/kfu;e ds izko/kkuksa ds vuqlkj izpyu ;ksX; ugha gS \ 9& lgk;rk ,oa okn O;;A "
(h) Since during pendency of the plaint, the ICICI Bank has issued sale certificate dated 19.11.2014 in favor of the defendant, therefore, the plaintiff filed an application under Order VI Rule 17 of CPC seeking amendment in para 27 and relief clause 30 (a) and (b). By way of amendment, the plaintiff has sought the relief that the defendant be restrained not to change the nature of the suit property and the sentence "that the defendant be restrained not to execute the sale-deed executed in his name alone" be deleted.
(i) The said application was opposed by the defendant by filing a reply but vide order dated 29.09.2016, the learned Trial Court has allowed the application and the plaintiff has carried out the amendment.
(j) The plaintiff has also filed an application on 26.09.2016 for deleting the Issue Nos.7-v and 7-c . Vide order dated 25.10.2016 the said application has also been allowed and both the issues were directed to be deleted .The Trial Court has further decided that Issue No.8 and held that under Section 34 of the SARFAESI Act, 2002 the civil suit is not maintainable and returned the plaint to the plaintiff
-: 6:- Misc. Appeal No.1998 of 2016.
under the provisions of Order VII Rule 10 of CPC . Hence, the present appeal before this Court.
[3] With the consent of the parties I have heard the appeal finally.
[4] Shri Sameer Athawale, learned counsel appearing on behalf of the appellant/plaintiff put forwarded that the learned additional District Judge has wrongly held that the suit is barred under Section 34 of the SARFAESI Act, 2002. The plaintiff has filed the suit for specific performance of agreements dated 23.08.2012 and 11.12.2012 and sought the relief of permanent injunction that the defendant be restrained not to alienate the suit property. He further submitted that the plaintiff has not impleaded the Bank as a defendant because he was not aggrieved by any measures taken by the Bank under section 13 (4) of SARFAESI Act, 2002 and he has not sought any relief against the Bank. Therefore, the bar Section 34 of the SARFAESI Act, 2002 would not apply to the present suit. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Nahar Industrial Enterprises Limited v/s Hong Kong and Shanghai Banking Corporation [(2009) 8 SCC 646] in which from para 105 to 118, the apex Court has held that exclusion of jurisdiction of Civil Court must be expressly barred otherwise the Civil Court is having jurisdiction to determine all dispute of civil nature between the parties.
[5] Shri Abhinav Malhotra, learned counsel appearing on behalf of the Respondent/defendant has vehemently opposed the prayer of appellant by submitting
-: 7:- Misc. Appeal No.1998 of 2016.
that the primarily reliefs sought by the plaintiff was in respect of seeking direction to the ICICI Bank not to execute the sale-deed in favour of the defendant alone and after the amendment he is virtually seeking relief for cancellation of the registered sale- certificate dated 19.11.2014 executed between the Bank and the defendant therefore, the bar created under Section 34 of the SARFAESI Act, 2002 would apply. That section 34 of the SARFAESI Act, 2002 clearly prohibits that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal is empowered and no injunction shall be granted by any court or any action taken or to be taken in pursuance to the power conferred under this Act. He has further drawn attention of this Court to sub- rules (1) and (2) of Rule 9 of the Security Interest (Enforcement) Rules, 2002. The Bank has sold the suit property to the defendant by taking measures under Section 13 (4) of the SARFAESI Act, 2002 and the plaintiff is aggrieved by the aforesaid sale in favour of the defendant. Therefore, he ought to have filed an appeal under Section 17 of the SARFAESI Act, 2002 because he comes under the category of "any person" who is aggrieved by the measures referred to in sub-section (4) of Section 13 of the SARFAESI Act, 2002.
[6] In support of his contention, he has further placed reliance over the judgments of apex Court in the case of Authorised Officer, Indian Overseas Bank v/s Ashok Saw Mill [(2009) 8 SCC 366]; Jagdish Singh v/s Heeralal [(2014) 1 SCC 479]; Robust Hotels Private Limited v/s EIH
-: 8:- Misc. Appeal No.1998 of 2016.
Limited [(2017) 1 SCC 622]; and finally State Bank of Patiala v/s Mukesh Jain [(2017) 1 SCC 53].
ORDER [7] The question of law involved in this appeal is whether the suit filed by the plaintiff is barred under Section 34 of the SARFAESI Act, 2002 and whether the Civil Court is not having jurisdiction by virtue of bar created under section 34 of the SARFAESI Act, 2002 to entertain the suit filed by the plaintiff in which he sought the relief of specific performance , permanent injunction and damages against the defendant.
[8] The SARFAESI Act, 2002 was enacted by the Central Government with the intention to give power to the bank and financial institutions to take possession of the security and to sale them without intervention of the Court. The act came into force on 21 st June, 2002. Under Section 13 of the SARFAESI Act, 2002, any 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 the SARFAESI Act, 2002 and the Security Interest (Enforcement) Rules, 2002 ( in shor Rules 2002) . Where any borrower, who is under a liability to repay debt or any installment makes any default, then the secured creditor shall be entitled to exercise all or any of the rights conferred under sub-section (4) of Section 13 of the SARFAESI Act, 2002 to recover his secured debts. Under clause (a) of sub-section (4) of Section 13 of the SARFAESI Act, 2002, the secured creditor may take possession of the secured assets of the borrower including the right to transfer
-: 9:- Misc. Appeal No.1998 of 2016.
by way of lease, assignment or sale for realising the secured assets. The complete procedure is given under Rule 8 if the secured assets is an immovable property. Under the provisions of Rule 8 of Rules 2002, the authorised officer shall take steps to sale the secured assets and realise the debt.
[9] That under sub-clause (1) of Rule 9 of the Rules, 2002, no sale of immovable property shall take place before the expiry of thirty days from the date on which the public notice of sale is published. The sale shall be confirmed in favour of the purchaser who has offered the highest sale price of his bid. Under sub-clause (3) of Rule 9 of the Rules, 2002, on every sale of immovable property, a purchaser shall immediately pay a deposit of twenty-five per cent of the amount of sale price and the balance amount shall be paid on or before fifteenth day of confirmation of sale and if the entire amount is paid, the certificate would be issued under sub-clause (6) of Rule 9 of the Rules, 2002.
[10] After completing the sale process, the sale certificate and delivery of possession would be issued under Rule 9 of Rules, 2002. Under sub rule(9) of Rule 9 of Rules, 2002, the authorised officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-rule (6). Under sub rule (10) of Rule 9 of Rules, 2002, the said certificate shall specifically mention that the purchaser has purchased the immovable secured asset free from any encumbrances. That sub-rule (9) of Rule 9 of Rules, 2002 is reproduced below :-
"(9) The authorised officer shall deliver the property to the purchaser free from encumbrances
-: 10:- Misc. Appeal No.1998 of 2016.
known to the secured creditor on deposit of money as specified in sub-rule (7) above."
[11] In the present case, the plaintiff came into the picture when the defendant was declared as successful bidder and deposited the 25% of the sale amount. Thereafter he was not in a position to deposit the balance amount. According to the plaintiff, he gave an offer to him to become a Partner in his Firm and the sale certificate would issued jointly with him and thereafter two agreements with various conditions were executed between them. According to the plaintiff, he gave the amount of Rs.1.5 crores to the defendant which he paid to the Bank and also paid the other taxes. Thereafter the plaintiff came to know that the defendant is going to get the sale certificate issued in his name alone. Therefore, he filed the suit for specific performance and injunction.
[12] Initially the plaintiff claimed the relief that the defendant be restrained not to get the sale-deed registered from the ICICI Bank in his name alone or in the name of some other persons, apart from other reliefs. The unamended relief (a) and (b) are reproduced below :-
"v- oknh ds i{k esa izfroknh ds fo:) bl vk'k; dk djkjiwfrZ dk t; i= ikfjr fd;k tkos fd izfroknh Hkkxhnkjh vuqca/k ys[k fn- 23&8&2012 ,oa vuqca/k ys[k fnukad 11&12&2012 ds ifjikyu esa oknh dks 1@2 va'k ds Hkkxhnkj ds :i esa j[krsa gq,s fof/kor~ Hkkxhnkj QeZ dk fuekZ.k djds mDr Hkkxhnkjh QeZ ds uke ls fdlh jk"Vªh;d`r cSad esa [kkrk [kqyok dj mlesa izfroknh vius ikl oknh dh vekur crkSj j[ks gq,s :i;s 13]00]000@& v{kjh :i;s rsjg yk[k tek djrsa mlesa viuh vksj ls leku jkf'k feykdj] uhykedrkZ cSad] vk;- lh-vk;-lh-vk;- cSad NksVh [ktjkuh bUnkSj ls vuqcaf/kr Hkwfe xzke xqy>jk] /kkeuksn rg- /kjeiqjh ftyk /kkj dh uxj ikfydk lhek esa fLFkr ifjofrZr Hkwfe [k-ua- 91@1@1 jdck gs- 0-582] [k-ua- 91@1@2 jdck gs- 0-292] [k-ua- 91@1@3 jdck gs- 0-
-: 11:- Misc. Appeal No.1998 of 2016.
292] o [k-ua- 91@2 jdck gs- 1-265 dqy [k-ua- 4 dqy jdck gs- 2-431 ,oa ml ij fufeZr dqy lajpuk dk iathd`r fodz; i= ij dk fu"iknu mDr Hkkxhnkjh QeZ ds uke ls djok dj mldk dCtk mDr Hkkxhnkjh QeZ dh vksj ls izkIr djds mDr Hkkxhnkj QeZ ds uke ls izLrkfor uD'kk ua- 12 vuqlkj vFkok mlds fof/kd la'kks/ku vuqlkj oknh ds lkFk leku [kpZ ls fof/kor~ dkWyksuh dh LFkkiuk dj mDr Hkkxhnkjh QeZ ds uke ls gh dkWyksuh ds Hkw[kaMks dk fodz; dj fodz; i= dk fu"iknu djrsa fodz; jkf'k dks Hkkxhnkjh QeZ esa tek dj izkIr 'kq) yke dk leku vf/kdkj j[ksa ,oa dkWyksuh fodflr dj Hkw[kaMks ds fodz; esa dksbZ O;ogkfjd ;k rduhdh ck/kk vkos rksa vuqcaf/kr Hkwfe;ksa esa oknh dk leku 1@2 gDd vf/kdkj dCtk gksdj og mldk foHkktu djkdj vius Lora= uke ij djkus dk vf/kdkjh jgrsa izfroknh ls mDr nksuks vuqca/k i=ksa dh 'krksZ dk ikyu lqfuf'pr djsa o djkos ,oa izfroknh }kjk ,slk u djus dh n'kk esa U;k;ky; ds ekQZr vuqca/k i=ksa dh 'krksZ dk ikyu djk;k tkosaA c- oknh ds i{k esa izfroknh ds fo:) bl vk'k; dh LFkk;h fu"ks/kkKk tkjh dh tkos fd izfroknh Hkkxhnkjh vuqca/k ys[k fn- 23&08&2012 ,oa vuqca/k ys[k fnukad 11&12&2012 ds v/khu jgrs gq,s xzke xqy>jk] /kkeuksn rg- /kjeiqjh ftyk /kkj dh uxj ikfydk lhek esa fLFkr ifjofrZr Hkwfe [k-ua- 91@1@1 jdck gs] 0-582] [k-ua- 91@1@2 jdck gs- 0-292] [k-ua- 91@1@3 jdck gs- 0-292] o [k-ua- 91@2 jdck gs- 1-265 dqy [k-ua- 4 dqy jdck gs- 2-431 ds laca/k esa vk;-lh-vk;-lh-vk;- cSad 'kk[kk NksVh [ktjkuh bUnkSj ls vius vdsys O;fDrxr uke ij vFkok vU; fdlh Hkh ds uke ls dksbZ Hkh iathd`r fodz; i= dk fu"iknu u djok;sa vkSj mu Hkwfe;ksa ds laca/k esa fdlh Hkh izdkj dk fcdzh] fxjoh] nku vFkok vU;= varj.k laca/kh O;ogkj u djs o u djkosaA"
[13] After filing of the suit when the defendant got executed the registered sale-deed in his favour and the Bank has issued the sale certificate dated 12 th November, 2014, the plaintiff filed an application seeking amendment in the plaint and in the relief clause. Para 3, 4 and 5 of the application are reproduced below :-
" 3- ;g fd oknh vius okni= iSjk 27 ds ckn u;k iSjk 27 ¼v½ fuEukuqlkj tksMuk pkgrk gS& 27- v- ;g fd okn dh yafcr voLFkk esa izfroknh }kjk oknh ds okn dks fu"Qy djus dh cnfu;rh ls fnukad 19-11-14 dks vk;-lh-vk;-lh-vk;- cSad ls nkfo;k Hkwfe;ksa dk iathd`r fodz; izek.k i= vius i{k esa djok fy;kA
-: 12:- Misc. Appeal No.1998 of 2016.
4- ;g fd oknh vius okn ds lgk;rk iSjk 30v- dh ckjgoha ykbZu esa ^^ij fuehZr dqy lajpuk dk^^ ds ckn ^^iathd`r fodz; i= dk fu"iknu mDr Hkkxhnkjh QeZ ds uke ls djokdj mldk dCtk mDr Hkkxhnkjh QeZ dh vksj ls izkIr djds^^ okD; de mlds LFkku ij ^^izdj.k dh yafcr voLFkk esa fnukad 19-11-14 dks tks iathd`r fodz; izek.k i= dk fu"iknu djk;k gS mDr Hkwfe;ksa dk laiw.kZ gd vf/kdkj ,oa dCtk mDr Hkkxhnkjh QeZ esa lekfgr djds^^ okD; tksMuk pkgrk gSA 5- ;g fd blh la'kks/ku ds izdk'k esa oknh vius okn ds lgk;rk iSjk 30c- dh lkroha ykbZu esa ^^vk;-lh-vk;-lh-vk;- cSad 'kk[kk NksVh [ktjkuh ls vius vdsys O;fDrxr uke ij vFkok vU; fdlh Hkh ds uke ls^^ okD; dks de dj mlds LFkku ij ^^oknh dh lgefr ds fcuk^^ okD; tksMuk pkgrk gSA ,oa blh iSjk ds var esa ^^u djkosA^^ esa iw.kZ fojke dks gVkdj mlds ckn ^^,oa Hkwfe dh HkkSfrd fLFkrh esa fdlh Hkh izdkj dk LFkk;h vFkok vLFkk;h ifjorZu u djs o djkosA^^ okD; tksMuk pkgrk gSA"
[14] By order dated 29.09.2016, the said amendment has been allowed. The effect of the aforesaid order would be that now the plaintiff is not claiming any relief to the effect that the Bank be directed not to execute the sale-deed in favour of the defendant alone. Now the plaintiff is claiming relief that the defendant be directed to transfer the entire right over the suit property into the Partnership Firm and further restrained not to change the nature of the property, either permanently or temporarily. The plaintiff has now confined his suit only in respect of specific performance of agreement dated 23.08.2012 and 11.12.2012, permanent injunction and damages.
[15] In view of the changed circumstances and amendment in the relief clause, whether the bar created under Section 34 of the SARFAESI Act, 2002 would operate against the plaintiff ? Section 34 of the SARFAESI Act, 2002 is reproduced below :-
"34. Civil court not to have jurisdiction.-- No civil court
-: 13:- Misc. Appeal No.1998 of 2016.
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 (51 of 1993)."
[16] Under Section 34 of the SARFAESI Act, 2002, 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 in pursuance of any power conferred by or under this Act. Therefore, if any person including borrower is aggrieved by any action taken by secured creditor under the Act of the SARFAESI Act, 2002, then only the DRT and DART would be empowered to determine such action and if required shall issue an injunction. An appeal to the DRT and further appeal to the DART lies under Section 17 of the SARFAESI Act, 2002 if any person aggrieved by any measure referred to in sub-clause (4) of Section 13 of the SARFAESI Act, 2002 taken by the secured creditor.
[17] Shri Sameer Athawale, learned counsel on behalf of the appellant has specifically argued that the plaintiff is not aggrieved by any measure referred to in sub- clause (4) of Section 13 of the SARFAESI Act, 2002. He has not claimed any relief against the Bank. He is seeking relief specific performance of agreement against the defendant. Even if any relief was there in the plaint against the Bank same has now been deleted. Therefore, the
-: 14:- Misc. Appeal No.1998 of 2016.
appellant/plaintiff being ''any person'' cannot said to be aggrieved by any of the measures referred to in sub-clause (4) of Section 13 of the SARFAESI Act, 2002.
[18] In the case of Authorised Officer, Indian Overseas Bank (supra), the apex Court has held that the DRT is having jurisdiction to interfere with the action taken by the secured creditor even after the stage contemplated under Section 13 (4) of the SARFAESI Act, 2002. Shri Abhinav Malhotra, learned counsel on behalf of the Respondent/ defendant submitted the plaintiff/appellant is also aggrieved by the action of the defendant after the stage contemplated under Section 13 (4) of the Act. Therefore, he is having remedy under Section 17 of the SARFAESI Act, 2002. In para 35 and 39, the apex Court has held the person should be aggrieved by the measures taken by the Bank under Section 13 (4) of the SARFAESI Act, 2002, then only he is having remedy under Section 17 of the SARFAESI Act, 2002. In the present case, the plaintiff has made clear that he is not aggrieved by the any measures taken by the Bank under Section 13(4) of the SARFAESI Act, 2002.
[19] In Jagdish Singh (supra), the apex Court has again considered the scope of Section 34 of the SARFAESI Act, 2002 and held that the civil court jurisdiction is completely barred, so far as the "measures" taken by a secured creditor under sub-section (4) of Section 13 of the SARFAESI Act, 2002 against which an aggrieved person has a right of appeal before the DRT or the DART to determine as to whether there has been any illegality in the "measures" taken. In entire plaint, the plaintiff has not
-: 15:- Misc. Appeal No.1998 of 2016.
alleged any illegality in the measures taken by the ICICI Bank. Therefore, the jurisdiction of civil court is not completely barred for the plaintiff. (Emphasis supplied) [20] In Robust Hotels Private Limited(supra), the apex Court considered the scope of Section 9 of CPC and Section 34 of the SARFAESI Act, 2002 and has held that the jurisdiction of civil court barred only in respect of any matter in which the DRT and Appellate Tribunal is empowered under the Act. The bar of jurisdiction of civil court has to co-relate to these conditions. Para 33 of the order is reproduced below :-
"33. A perusal of Section 34 indicates that there is express bar of jurisdiction of the Civil Court to the following effect:
"(i) Any suit or proceeding in respect of any matter in which Debt Recovery Tribunal or Appellate Tribunal is empowered by or under this Act to determine.
(ii) Further, 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."
Thus the bar of jurisdiction of Civil Court has to correlate to the above mentioned conditions. For purposes of this case, we are of the view that this Court need not express any opinion as to whether suits filed by EIH were barred by Section 34 or not, since the issue are yet to be decided on merits and the appeal by Robust Hotels have been filed only against an interim order."
[21] Therefore, in this case the apex Court has held that Section 34 of the SARFAESI Act, 2002 bars of
-: 16:- Misc. Appeal No.1998 of 2016.
jurisdiction of civil court only in respect of the power given to the DRT and DART.
[22] In case of State Bank of Patiala (supra) the plaintiff filed the suit when the Bank has initiated proceedings under Section 13 (2) of the SARFAESI Act, 2002, therefore, the apex Court in this case of State Bank of Patiala (supra) has held that the suit is barred under Section 34 of the SARFAESI Act, 2002. But in this case the plaintiff, as stated above, is not aggrieved by any measures taken by the ICICI Bank under Section 34 of the SARFAESI Act, 2002.
[23] In view of the above, when the plaintiff has amended his relief clause and the said amendment order has not been challenged by the defendant and the plaintiff is claiming relief only in respect of specific performance of the agreement, permanent injunction against the defendant with damages hence bar under Section 34 of the SARFAESI Act, 2002 would not apply.
[24] In view of the statement made by Shri Sameer Athawale, the suit is confined only in respect of specific performance of agreement, permanent injunction and damages against the defendant only .Accordingly this appeal is hereby allowed and the impugned order dated 25.10.2016 is set-aside. The matter is remitted back to the Trial Court to decide the civil suit on its merit.. No order as to cost.
[ VIVEK RUSIA ] JUDGE Sharma AK/*