Delhi District Court
Vidya Sagar vs Smt. Raj Dulari & Ors on 27 August, 2016
Suit No.610035/16
IN THE COURT OF Ms. MONA T. KERKETTA,
CIVIL JUDGE5, WEST, TIS HAZARI COURTS, DELHI
CNR NO.: DLWT030010972014
In Re. :
Vidya Sagar
...............Plaintiff
Versus
Smt. Raj Dulari & Ors.
........... Defendant
ORDER
1. This order decides the following applications & objections filed on behalf of the plaintiff and Karnataka Bank :
(a) under Order 1 Rule 10 CPC moved by plaintiff for impleadment of Karnataka Bank as defendant;
(b) under Order XXXIX Rule 1&2 read with section 151 CPC moved on 29.10.2015 on behalf of plaintiff seeking restraint upon Karnataka Bank and its officials etc. from taking possession of suit property forming subject matter of adjudication i.e. E52, New Multan Nagar, Delhi during the pendency of the present suit;
(c) under section 151 CPC dated 08.03.2016 for passing appropriate orders;
(d) objections filed on behalf of Karnataka Bank against its impleadment as one of the defendants in the present suit.
2. It is the case of plaintiff that defendant is his real sister and subject matter of the present suit is partition of suit property being ancestral Suit No.610035/16 Sh. Vidya Sagar Vs. Smt. Rajdulari Page No.1/7 Suit No.610035/16 property. It is contended that suit property was purchased by the grandfather of the parties out of his own funds for the welfare of all children in the name of defendant as plaintiff and other Co parceners were minor at that time. Now the plaintiff seeks partition of the suit property being one of co parceners.
3. It may be noted that during the course of hearing on 07.01.2015, learned predecessor of the court restrained the defendant from creating third party interest in the suit property on the undertaking of defendant by way of her separate statement. Thereafter, plaintiff preferred an application under order 6 Rule 17 CPC seeking amendment of the plaint for enabling the plaintiff to implead other siblings as defendants. In the meanwhile, plaintiff learned that defendant had mortgaged the suit property to Karnataka Bank and after having been declared as NPA, Karnataka Bank took possession of the suit property and subsequently assigned the debt related to the suit property to M/s Phoenix, an asset and reconstruction company.
4. Now dealing with the applications and objections of applicants. For the sake of convenience, applications/objections mentioned at serial number (a), (c) & (d) are being taken up first being interconnected.
5. By way of said applications, plaintiff wants impleadment of Karnataka Bank as one of the defendants as suit property is stated to have been mortgaged by the defendant to Karnataka Bank, which, in turn, assigned the debts related to suit property to M/s Phoenix ARC. It is contended that impleadment of Karnataka Bank is essential for Suit No.610035/16 Sh. Vidya Sagar Vs. Smt. Rajdulari Page No.2/7 Suit No.610035/16 impleadment of M/s Phoenix ARC also in the present suit as Karnataka Bank assigned the debt to M/s Phoenix ARC in the capacity of assignor and received by Phoenix ARC as assignee. It is further contended that in order to protect the interest of plaintiff in the suit property, an order for maintaining status quo may be passed in favour of plaintiff during the pendency of the suit as in the absence of interim order, the plaintiff shall suffer irreparable loss and injuries.
6. The applications are opposed on behalf of Karnataka Bank on the ground that debt related to suit property has already been assigned to M/s Phoenix ARC and that suit property is not in the possession of Karnataka Bank. It is contended that since the debt has already been assigned to M/s Phoenix ARC, no purpose would be served by impleading Karnataka Bank as one of the defendants as no relief can be passed against Karnataka Bank. It is also contended that this court has no jurisdiction to call in question the sale of suit property in view of provision 34 of SARFAESI Act.
7. In response, learned counsel for plaintiff submitted that impleadment of Karnataka Bank is essential in view of provision given under section 5(5) of SARFAESI Act as plaintiff cannot implead M/s Phoenix ARC directly as defendant in the present suit after assignment of debts related to suit property by Karnataka Bank. It is argued that impleadment of M/s Phoenix in the present suit is possible only after it applies with the consent of Karnataka Bank before the Debt Recovery Tribunal or the Appellate Tribunal or any court or other authority for the Suit No.610035/16 Sh. Vidya Sagar Vs. Smt. Rajdulari Page No.3/7 Suit No.610035/16 purpose of substitution of its name in any pending suit, appeal or other proceedings and on receipt of such application before the DRT or the Appellate Tribunal or Court or Authority shall pass orders for the substitution of the M/s Phoenix ARC in the pending suit, appeal or other proceedings.
8. Regarding issue of jurisdiction of Civil Court, it is argued that in a suit like the present one, jurisdiction of civil court very much lies as such rights can be determined and enforced only by Civil Courts. (Reference is made to the judgments titled as Ram Prakash Mehra Vs. Union Bank of India & Ors, DOD 31 October,2011; Ritu Gupta Vs. Usha Dhand & Ors, DOD 19th November,2013; Krishna Devi & Ors. Vs. Kedarnath Vs. Ors.; Vyshya Cooperative Bank Ltd. Vs. G. Keerthana & Ors. DOD 25.10.2007; Arasa Kumar & Anr. Vs. Nallammal &Ors. 19.03.2004; Maradia Chemicals Vs. UOI(2004)4 SCC 311).
9. The court has given thoughtful consideration to the submissions made on behalf of the parties and perused the record with the assistance of learned counsels for the applicants.
10. So far as the issue of jurisdiction of Civil Court is concerned, it may be noted that the present suit has also been filed for partition of suit property, possession, mesne profits, declaration and permanent injunction. The court is of the opinion that issues involving such reliefs can be adjudicated upon only by Civil Courts. A perusal of section 34 of SARFAESI Act reveals that the exclusion of jurisdiction of civil court is in respect of matters which can be taken before the DRT for adjudication. It Suit No.610035/16 Sh. Vidya Sagar Vs. Smt. Rajdulari Page No.4/7 Suit No.610035/16 is obvious that the DRT or the Appellate Tribunal is not the competent forum to adjudicate a suit for partition. The Hon'ble Superior Courts in catena of judgments including referred by learned counsel for plaintiff, have clarified that such disputes can not be adjudicated by any of the tribunal or authority created under the Act and the right of the parties to approach the civil court for appropriate relief cannot be deprived and taken away by raising such plea of jurisdiction of civil court.
11. In the instant case, the court is of the view that the right of Karnataka Bank, in whose favour the suit property was mortgaged, is only that of a secured creditor and that right of Karnataka Bank or assignor M/s Phoenix ARC remains intact as it is for the enforcement of that security the bank/ARC invokes the provisions of SARFAESI Act. In fact, there is no embargo for such a course of action even if the civil suit for partition is filed involving the very property as subject matter.
12. Now dealing with the issue of impleadment of Karnataka Bank, the court is of the view that impleadment of Karnataka Bank becomes essential because recital of assignment deed has not been brought before the court to show under what terms and conditions the debt related to suit property was assigned to M/s Phoenix ARC. It is not clear whether Karnataka Bank assigned debts related to suit property to M/s Phoenix ARC, on "as is where is" basis and consequently M/s Phoenix ARC became the full and absolute legal owner of the debts related to the suit property or otherwise.
13. Besides this, there comes the embargo on account of provisions Suit No.610035/16 Sh. Vidya Sagar Vs. Smt. Rajdulari Page No.5/7 Suit No.610035/16 of section 5(5) of SARFAESI Act as mentioned above. This section necessitates impleadment of Karanataka Bank as one of the defendants. The court is of the view that plaintiff shall be in a position to implead M/s Phoenix ARC as one of the parties only after it applies with the consent of Karnataka Bank before the Debt Recovery Tribunal or the Appellate Tribunal or any court or other authority for the purpose of substitution of its name in any pending suit, appeal or other proceedings and it is only after receipt of such application before the DRT or the Appellate Tribunal or Court or Authority shall pass orders for the substitution of the M/s Phoenix ARC in the pending suit, appeal or other proceedings.
14. In the given set of facts and circumstances, purported interest of plaintiff deserves protection at this stage or else plaintiff shall suffer irreparable loss and injuries in case his purported interest in the suit property is not protected. The pleas taken in the pleadings raise triable issues and require further trial in the present suit. Hence, prima facie case in favour of plaintiff is made out and also balance of convenience lies in his favour. Notice of aforesaid application has already been served upon M/s Phoenix ARC, which did not choose to contest the application except recording the statement to the effect that debts related to suit property has been assigned to it.
15. Accordingly, in the interest of justice and proper adjudication of the present suit, restraint upon M/s Phoenix ARC from dealing with debt related to suit property, is required at this stage. Hence, M/s Phoenix ARC is restrained from dealing with debts related to the suit property till further Suit No.610035/16 Sh. Vidya Sagar Vs. Smt. Rajdulari Page No.6/7 Suit No.610035/16 order and directed to maintain status quo qua the said debts.
16. So far as application under Order XXXIX Rule 1&2 read with section 151 CPC moved on 29.10.2015 on behalf of plaintiff seeking restraint upon Karnataka Bank and its officials etc. from taking possession of suit property during the pendency of the present suit, is concerned, it may be noted that since possession of the suit property has already been taken over by Karnataka Bank and subsequent handing over of debts related to suit property to M/s Phoenix ARC, this relief cannot be entertained at this stage, hence the said application is being disposed of being infructous.
17. Copy of this order be given dasti to the parties if requested and one copy be sent to M/s Phoenix ARC, for intimation.
Announced in the open court (Mona T. Kerketta)
today i.e. 27.08.2016 Civil Judge05/West/THC
Delhi
Suit No.610035/16 Sh. Vidya Sagar Vs. Smt. Rajdulari Page No.7/7