Calcutta High Court (Appellete Side)
Canara Bank vs Rajesh Kumar Jaiswal & Anr on 14 September, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 3303 of 2010 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Canara Bank.
Versus Rajesh Kumar Jaiswal & anr.
For the petitioner: Mr. Ayan Kumar Boral, Mr. Archan Dutt.
For the opposite parties: Mr. M.S. Poddar.
Heard On: 30.08.2011 & 06.09.2011.
Judgement On: September 14, 2011.
Prasenjit Mandal, J.: This application is directed against the Order No.16 dated May 18, 2010 passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore in Title Suit No.2363 of 2009 thereby rejecting an application under Order 7 Rule 11(d) of the C.P.C. filed by the defendant no.1 in the suit.
The plaintiff / opposite party no.1 herein instituted a suit being Title Suit No.2363 of 2009 for declaration of tenancy, permanent injunction and other reliefs before the learned Civil Judge (Senior Division), 2nd Court, Alipore. The plaintiff sought 2 for a decree of declaration that he is a monthly tenant under the defendant No.2 and that he cannot be evicted otherwise than under the provisions of the West Bengal Premises Tenancy Act, 1997 and other consequential declarations, permanent injunction etc. The defendant no.1 entered an appearance and it filed an application under Order 7 Rule 11(d) of the C.P.C. and that application was rejected on contest without cost by the impugned order. Being aggrieved, the defendant no.1 has preferred this application.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, this Bench finds that the defendant no.1 is the bank and the defendant no.2 is the landlord in respect of the premises in suit under occupation of the plaintiff. The defendant no.2 is the secured debtor under the defendant no.1 and the defendant no.1 issued notice under Section 13(2) of the SARFAESI Act, 2002 demanding payment of the outstanding from the defendant no.2. The defendant no.2 had received the said notice. On getting a copy of the said notice, on demand, the plaintiff/tenant learned that the defendant no.2 had availed himself of various credit facilities from the defendant Bank and had mortgaged various immovable properties including the suit premises. Thereafter, on July 16, 2009 the notice under Section 13(4) of the said Act was affixed on various 3 portion of the suit premises. On realising the issuance of such notice under Section 13(4) of the said SARFAESI Act, 2002, the plaintiff filed the suit for the reliefs stated above.
Now, in order to consider the prayer for rejection of plaint on the ground of being barred by any law, the averments made in the plaint are the matters to be looked into without any doubt or dispute. Order 7 Rule 11(d) of the C.P.C. will not apply to any doubt or disputed question. Therefore, this Bench is to consider the averments made in the plaint to decide the prayer of the defendant bank.
Now, on perusal of the copy of the plaint, this Bench finds that the plaintiff has clearly stated in paragraph no.11 of his plaint that the officers of the defendant / bank confirmed that the portion under the plaintiff's occupation being the suit premises is included in the schedule of the secured assets. In paragraph no.14 of the plaint, the plaintiff has also clearly stated that on July 16, 2009 the notice under Section 13(4) of the SARFAESI Act, 2002 was pasted on various portion of the suit premises. The plaintiff was put on notice and was told to vacate and hand-over the possession of the shop space to the defendant / bank.
As per plaint case, the plaintiff was inducted in the premises in suit in March 2000 and he saw the notice under Section 13(4) of the said Act, 2002 on July 16, 2009. The landlord of the 4 plaintiff was the secured debtor in respect of the loan taken in 2007 and the secured assets include the suit premises. Under the circumstances, the plaintiff has prayed for the following reliefs in the suit:-
(a) A Decree for declaration that the Plaintiff is a monthly tenant under the Defendant No.2 and cannot be evicted otherwise than under the provisions of the West Bengal Premises Tenancy Act, 1997;
(b) Decree of declaration that the Plaintiff has the right to remain in possession and occupy the suit premises as a tenant and peacefully use and enjoy the suit premises with all entitlement of its tenancy, without any interruption;
(c) Permanent injunction restraining the Defendant No.1, its officers, men and agents from dispossessing the Plaintiff from the suit premises otherwise than by due process of law;
(d) Permanent injunction restraining the defendant Bank, their officers, men and agents from interfering with the Plaintiff's peaceful use and enjoyment of the suit premises in any manner whatsoever;
(e) Permanent injunction restraining the Defendant bank, its officers, men and agents from taking any steps and/or 5 further steps from taking possession of the suit premises.
Thus, from the above prayer of the plaintiff in his plaint, it appears that the plaintiff has not only sought for reliefs against his landlord but also against the defendant no.1 / bank, its officers, men and agents restraining them from dispossessing the plaintiff from the suit premises otherwise than by due process of law, permanent injunction restraining the bank, its officers, men and agents from interfering with plaintiff's peaceful use and enjoyment, permanent injunction restraining the defendant bank, its officers, men and agents from taking from taking any steps or further steps from taking possession of the suit premises etc. Therefore, the plaintiff has also challenged the action of the defendant bank and prayed for permanent injunction as noted above. If the prayer for reliefs is granted, the bank will be permanently restrained from taking any steps or actions from taking possession of the suit premises. Therefore, the actions/steps of the defendant no.1 under the provisions of the SARFAESI Act, 2002 have been clearly challenged in the plaint.
This being the position, as soon as the steps in terms of Section 13(4) of the SARFAESI Act, 2002 are taken by the secured creditor, any person (including the borrower), aggrieved by any of the measures under Section 13(4) of the said Act, may prefer an 6 appeal under Section 17(1) of the SARFAESI Act, 2002 before the Debts Recovery Tribunal within the stipulated time as mentioned in the said Section. In the instant case, the plaintiff/tenant will certainly come under the category of 'any person' aggrieved by any action taken by the secured creditor under Section 13(4) of the said SARFAESI Act, 2002. Therefore, the appropriate remedy open to the plaintiff / opposite party is to take recourse of Section 17(1) and not otherwise as soon as any of the measures under Section 13(4) of the Act of 2002 is taken. But in the instant suit, the plaintiff was merely asked to hand over possession of the suit premises by the notice under Section 13(4) of the 2002 Act and measures are yet to be taken under Section 13(4) of the said Act in respect of the security. For convenience, the said provision is quoted below:-
17. Right to appeal.-(1) 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 authorised 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:
Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.
Explanation. - For the removal of doubts it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of section 17. 7 Thus, this Bench finds that the secured creditor having taken any of the of measures under Section 13(4) of the said Act of 2002, the plaintiff was not remedyless under the Act. The Debts Recovery Tribunal having jurisdiction in the matter is the appropriate forum for adjudication of the dispute between the parties and for decision whether the action of the secured creditor is valid in respect of the suit premises. As mentioned earlier, the other immovable properties of the borrower are also the secured assets. If the plaintiff is not satisfied with the order of the First Appellate Court, there is a provision for second appeal before the Appellate Tribunal under Section 18 of the 2002 Act. Thus, this Bench holds that the plaintiff is not remedyless under the Act.
The above findings get support from the provision of Section 34 of the SARFAESI Act, 2002 which clearly bars the institution of any suit against the bank when the measures have been taken by a secured creditor against the debtor under Section 13(4) of the said Act. For convenience, Section 34 of the said Act is quoted below:-
34. Civil court not to have jurisdiction. - No civil court shall has 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 8 under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).
During argument, Mr. Poddar appearing for the plaintiff / tenant has referred to the decision of The Manager UCO Bank v. Samar Sarkar & ors. (2007)3 CAL LT 362(HC) and thus, he submits that according to this decision, the secured creditor is not authorised to recover possession from a tenant under the borrower in a mortgage property in the process of its dues from its borrower. With due respect to Mr. Poddar, I hold that this decision will not be applicable in the instant case inasmuch as, this decision clearly lays down that the plaintiff of that suit did not challenge the action of the bank taken in the process of recovery of its dues from its borrowers under the provision of the SARFAESI Act, 2002. But in the instant suit, from the Paragraph No.s 10 to 21 of the plaint and the reliefs sought for as indicated earlier, it is evident that the plaintiff has challenged the action of the secured creditor taken in the process of its recovery of its dues from the borrower under the provisions of the SARFAESI Act, 2002. As per paragraph no.29 of the plaint, the cause of action arose on and from July 16, 2009 and is continuing from day to day i.e. when the copy of notice under Section 13(4) of the Act asking the plaintiff to vacate the suit premises, was pasted on various portion of the suit premises. Therefore, I am of the view that this decision will not be applicable in the 9 instant suit. The learned Trial Judge has discussed this decision also but this Bench finds that the learned Trial Judge has failed to distinguish between that suit and the present one.
In that view of the matter, I am of the opinion that the instant suit comes under the mischief of the provisions of Section 34 of the SARFAESI Act, 2002. So, the suit is barred by law.
The learned Trial Judge has, therefore committed errors of law in rejecting the application under Order 7 Rule 11(d) of the C.P.C. The impugned order is not, therefore, sustainable.
The application succeeds.
Accordingly, the application is allowed. The impugned order is set aside. The application under Order 7 Rule 11(d) of the C.P.C. stands allowed. Consequently, the plaint of the title suit being Title Suit No.2363 of 2009 is rejected under Order 7 Rule 11(d) of the C.P.C.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)