Calcutta High Court (Appellete Side)
R.K. Global Commodity Broking Ltd vs Atul Kumar Mehta & Ors on 4 April, 2013
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 197 of 2013
R.K. Global Commodity Broking Ltd.
-vs-
Atul Kumar Mehta & Ors.
For the petitioner : Mr. Jiban Ratan Chatterjee
Mr. Hiranmoy Bhattacharyya.
For the Opposite Party No.1 : Mr. Soumya Roy Chowdhury,
: Ms. Soma Rahman.
Heard on : 26.02.1013
Judgment on : 04.04.2013
HARISH TANDON, J.:
This revisional application is directed against an order dated November 27, 2012 passed by learned Civil Judge (Senior Division), 2nd Court, Alipore in Title Suit No. 2961 of 2009 by which an application under Order 7 Rule 11 of the Code is rejected.
The plaintiff/opposite party no.1 filed the said Title Suit praying for a decree for declaration that the plaintiff is the bonafide tenant in respect of the suit property as described in the schedule thereto and a decree for permanent injunction restraining the defendants from creating disturbances in peaceful possession and occupation of the schedule property.
It has been averred in the plaint that the plaintiff was inducted on the basis of an agreement for tenancy dated 09.08.1999 by the defendant no.1/opposite party no.2 herein in respect of one flat measuring 1022 sq.ft. being Flat No. 4B on the 4th Floor of a Premises No. 53, Sayed Amir Ali Avenue, Kolkata- 700 019, at a monthly rental of Rs. 7,500/- per month payable according to English Calendar. The plaintiff further averred that on 18th February, 2008, he received a notice issued by the opposite party no.3. bank, calling upon to furnish certain information wherefrom the plaintiff/opposite party could come to know for the first time that the defendant no.1/opposite party no.2 have mortgaged the said flat with the opposite party no.3. It is further alleged that the opposite party no.3 bank has obtained an order of attachment from the Debt Recovery Tribunal, Mumbai and is demanding the vacant possession from the tenant and premises from the plaintiff/opposite party no.1. The plaintiff/opposite party no.1, thereafter, intervened in the Recovery Proceeding before the Debt Recovery Tribunal, Mumbai and by an order dated November 30, 2009, the Tribunal recorded that the intervener status as to the said property would be disclosed to the prospective buyer at the relevant point of time and, subsequently, the opposite party no.2 was declared as the highest bidder and the same was found in his favour on 17th May, 2010. Subsequently, on October 25, 2010, the Debt Recovery Tribunal, Mumbai, appointed the receiver and directed him to hand over the possession of the said flat to the highest bidder i.e. the opposite party no.2. It is further stated in the plaint that the said sale was subjected to the said tenancy and, therefore, the order of the Debt Recovery Tribunal to hand over the possession to the auction purchaser is bad. In the backdrop of the facts, the present suit has been filed for declaration of tenancy, right and permanent injunction. The defendant no.3 bank after entering appearance filed an application under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of the plaint. The main thrust of the petitioner in the said application that the said tenancy was created during the pendency of a proceeding before the Debt Recovery Tribunal and since an auction was taken under the SARFAESI Act, the jurisdiction of the Civil Court is barred under Section 34 thereof. The opposite party no.1 in its objection to the said application contended that she was allowed to intervene in the proceeding initiated before the Debt Recovery Tribunal, Mumbai and the said sale was made on " as is where is and what is basis" and, therefore, he cannot be effected without being process of law. The Trial Court rejected the said application as the civil suit seeking a declaration of tenancy right is not barred under the provision of Section 34 of the said Act.
Mr. Jiban Ratan Chatterjee, the learned Senior Advocate appearing for the petitioner, however, contends that the Trail Court has misconstrued the provision contained under Section 34 of the said Act. He further submits that the plaintiff/opposite party can variably agitate the grievance before the Debt Recovery Tribunal under Section 17 of the said Act and, therefore, the order passed by the Trial Court is not maintainable. Although, the instant revisional application is at the motion stage but this Court finds that there has been a divergence of opinion on the above issues. The Co-ordinate Bench in case of Manager, UCO Bank -vs- Samar Sarkar & Ors. reported in 2008 (2) CHN 36 held that a suit simplicitor for declaration of a tenancy right without touching any of the orders passed by invocation of the provisions contained under the SARFAESI Act, is maintainable before the Civil Court and Section 34 of the said Act cannot stand in the way of such a suit in these words:
"8. I have considered the relevant provisions, being sections 13, 17 and 34 of the said Act. On perusal of those provisions, this Court does not find that the bank is authorized to evict a tenant from any mortgaged property in the process of realization of the dues of the landlord/borrower.
9. On perusal of the plaint case, this Court also does not find that the plaintiff has challenged any action of the bank taken in the process of recovery of its dues from its borrower under the provision of the said ct. The reliefs which were claimed by the plaintiff in the said suit, make it clear that the plaintiff simply wants to protect his tenancy right in respect of his tenancy under the defendant no.1 who is a borrower from the bank.
10. None of the provisions of the said Act authorizes the bank to recover possession from a tenant under the borrower in a mortgaged property in the process of recovery of its dues from its borrower. If that be so, the bank cannot evict the tenant of a borrower from a mortgaged property by virtue of any of the provisions of the said Act and if any action of the bank which is not protected under the said Act, is challenged by such a tenant in a suit such challenge cannot be held to be barred under the provisions of section 17 of the said Act."
The unreported judgment rendered in case of Authorise Signatories Deutsche Bank & anr. -vs- Sandip Dey & anr. (C.O. 3275 of 2010 decided on May 12, 2011), the other Co-ordinate Bench who were poised with the similar question whether the suit for declaration of a tenancy right before the Civil Court is maintainable and the embargo created under Section 34 of the SARFAESI Act, 2002 would not stand in the way of such suit. It is held that the remedy of the tenant lies in filing an application under Section 17 (1) of the said Act and not by a separate suit in these words:
"I am of the view that since the provisions of the SARFAESI Act, 2002 has the overriding effect, the decision of Nahar Industrial Enterprises Ltd. (supra) which relates to transfer of a suit to DRT will not be applicable in the instant suit. The remedy of the tenant lies by filing an application under Section 17 (1) of the SARFAESI Act, 2002.
In view of the findings as observed above, I am of the opinion that the secured creditors, that is, the petitioners are entitled to take over the possession of the mortgaged property and the plaintiff/opposite party herein has a remedy under Section 17 (1) of the SARFAESI Act, 2002. The suit filed by the plaintiff/opposite party herein is not maintainable in view of Section 34 of the SARFAESI Act, 2002. Therefore, I hold that the plaint comes within the mischief of Order 7 Rule 11 (d) of the C.P.C. and that for that reason the plaint should have been rejected by the learned Trial Judge by allowing the application under Order 7 Rule 11 (d) of the C.P.C. The learned Trial Judge has committed errors of law in rejecting the application under Order 7 Rule 11 of the C.P.C. The impugned order cannot be supported. It should be set aside."
(Emphasis Supplied) This Court, therefore, finds that both the judgments are contrary to each other, although, the later judgment (Deutsche Bank) did not notice the earlier judgment (Uco Bank), but this Court finds that in view of the conflicting decisions operating in the field, the revisional application is required to be heard by a larger bench for deciding the said issue.
Let this revisional application be placed before the Hon'ble Chief Justice for constituting a larger bench.
(Harish Tandon, J.)