Delhi District Court
Gurvinder Singh Marwah vs Tarvinder Singh Marwah on 26 April, 2017
IN THE COURT OF SH. ANIL KUMAR SISODIA:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
RCA/DJ/61031/2016
Gurvinder Singh Marwah
S/o Late Sh. Jaimal Singh Marwah
R/o WZ-67, New Number is C-56,
Plot No.40, Khasra No.4, Village
NangliJaleb, Ganesh Nagar Colony,
Najafgarh Road, New Delhi ........Appellant
Versus
1.Tarvinder Singh Marwah
S/o Late Sh. Jaimal Singh Marwah
At C56, Ganesh Nagar Colony,
Najafgarh Road, New Delhi
2. Sub-Registrar
Janak Puri, New Delhi
3.Syndicate Bank, Central Market,
Punjabi Bagh, New Delhi
4.Oriental Bank of Commerce
through Authorized Officer
Regional Office, Agra Ishpat Bhawan
2nd Floor, 85/4, Sanjay Place, Agra-282002
5.Bank of Baroda
ARM Branch:-B-3, Connaught Place,
New Delhi-110001
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6. Indian Overseas Bank,
42, Regal Building Connaught Place,
New Delhi-110001.
7.Punjab National Bank
Address:-Rajpura Township,
Distt. Patayala,
(Punjab). ...........Respondents
Date of institution :- 30.06.2015
Order Reserved On:- 19.04.2017
Date of Decision:- 26.04.2017
JUDGMENT
1. The appellant has filed the present appeal aggrieved by the order dated 29.05.2015 passed by Ld. Trial Court whereby the suit of the plaintiff was dismissed.(For the sake of convenience, the parties shall be referred to as plaintiffs and defendant as per their rank in the original suit).
2. The facts necessary for disposal of this appeal are that the plaintiff had filed the suit for declaration and cancellation of partition deed dated 07.06.2006 for being null and void. It was stated in the plaint that plaintiff is residing in property no.WZ-67(new no.C-56) plot no.40, Khsara No.04, Village Nangli, Jaleb, Ganesh Nagar Colony Najafgarh Road, new Delhi-18(hereinafter referred to as suit property) since his RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 2/10 birth with his family and in possession of the same with the consent of the other legal heirs. The suit property was co-parcenery property in the hands of late Sh. Jaimal Singh Marwah. After his death, in the year 2000, the same was required to be divided as per Hindu Succession Act. Late Sh. Jaimal had not left any partition deed regarding the suit property but defendant no.-1 executed a forged and fabricated partition dated 07.06.2006 and divided the property between plaintiff and defendant no.- 1 and plaintiff was not aware about the same and never signed the partition deed. The plaintiff came to know about the partition deed when he received the notice of DRT-III on 04.07.2013 of sale proclamation in the matter of Syndicate Bank Vs. Umesh Kumar Mishra, thereafter, several banks started pasting attachment notices on the suit property and in enquiry it was revealed that the defendant no.-1 had fabricated the partition deed . Defendant no.-1 also took loan from Punjab National Bank in the name of M/s Divpreet Organics Ltd. (in which defendant no.-1 was CMD) against hypotehcation of stocks in the year 1997, the original title deed is still lying with Punjab National Bank and various litigations were going on between the Co-parceners with Punjab National Bank. From the notices issued by the banks, the plaintiff also came to know that defendant no.-1 stood sureties on the basis of forged partition deed and these matters are pending before DRT. It was stated that the defendant no.-1 had no right to create security of half portion of the suit property to defendant no.-3 to 7 as a guarantor on the basis of partition deed dated 07.06.2006. It was stated that the basic question was with regard to the legality of the partition deed and DRT had no jurisdiction to RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 3/10 deliberate on the legality of the documents. The plaintiff is third party to the defendants' bank and had no legal dealings with them.
3. Summons of the suit were served upon the defendants and defendants no.3 to 7 filed their written statements and raised objections that the suit is barred under SARFAESI Act.
The Ld. Trial Court on 29.05.2015, rejected the plaint under Order 7 Rule 11 CPC calling that the jurisdiction of Civil Courts is barred under Section 34 of SARFAESI Act.
4. Aggrieved by the aforesaid order, the plaintiff/appellant has preferred the present appeal on the grounds that the Ld. Trial Court committed an error in appreciating the facts that the plaintiff had filed the suit for declaration and cancellation of partition deed dated 07.06.2006 executed by respondent no.-1 as null and void. DRT has no power and jurisdiction to decide the legality of the partition deed dated 07.06.2006. The suit property which is in the name of Late Jaimal Singh who had expired in the year 2000 without executing any Will and Partition deed and leaving behind six legal heirs. The respondent no.-1 illegally fabricated the partition deed dated 07.06.2006 by impersonating the appellant and got the same registered and thereafter managed to obtain loans on the same partition deed from various banks and financial institutions. The officials of the respondent no.-3 to 7 without following any regulations and without seeing any chain of documents from respondent no.-1 sanctioned loan to respondent no.-1 which shows that RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 4/10 all the respondents are collusion with each other. The Ld. Trial Court erred in appreciating the fact that the impugned partition deed is forged and fabricated document and obtained by impersonation of one of the executors and suffered from serious legal defects which cannot be corrected by the DRT and only the Civil Court has the power to declare the said partition deed as null and void and cancel the said partition deed. Ld. Trail Court also fails to appreciate that the relief sought by the appellant cannot be granted by Ld. DRT.
5. The notice of the appeal was issued to the respondents who appeared through their counsels except respondent no.-1. Respondent no.-1 was proceeded ex-parte vide order dated 03.09.2016. Respondent no.-4 & 6 have also filed their reply to the appeal.
6. The Trial Court Record was also summoned before hearing the arguments.
7. I have heard the Ld. Counsels for the parties and perused the record carefully.
8. Counsel for the appellant has argued that the Civil Court had the jurisdiction to try the suit filed by the appellant as the appellant in the plaint had alleged the forgery in the partition deed and the legality and validity of the partition deed can only be decided by the Civil Court and Debt Recover Tribunal or the Appellate Tribunal does not have the RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 5/10 power to pass a decree of declaration for declaring a document null and void nor it does have powers to cancel any document. It was argued that the case of the plaintiff has not covered the bar created by Section 34 of the SARFAESI Act.
9. Counsels appearing for respondents no. 3 to 6, on the other hand have defended the judgment of Ld. Trial Court and have argued that the jurisdiction of the Civil Court is barred under Section 34 of SARFAESI Act. It was argued that the respondents bank have already proceeded under Section 13(4) of the SARFAESI Act and the appellant has a remedy under Section 17 of the SARFAESI Act which provides remedy not only to the borrower but even to a third person who is not the borrower or guarantor.
10. Perusal of the record shows the property, in respect of which the partition deed 07.06.2006 was challenged by the appellant was admittedly mortgaged to the respondent banks by respondent no.-1 herein. It is also not in dispute that the respondent banks have taken measures under Section 13 of the SARFAESI Act.
11. The suit property which is referred in the plaint falls within the definition of a security interest as defined under Section 2(zf) of SARFAESI Act and the respondents banks fall under the category of secured creditors as defined under Section 2(zd) of the Act. A full reading of Section 34 of the SARFAESI Act shows that the jurisdiction RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 6/10 of the Civil Court is barred in respect of matters which a Debt Recovery Tribunal or an Appellate Tribunal is empowered to determine in respect of any action taken or to be taken in pursuance of any powers conferred under the SARFAESI Act. That is to say, to the prohibition covers even the matters which can be taken cognizance of by the DRT though no measure in that directions has so far been taken under Sub-Section 4 of Section 13. It is further to be noted that the bar of jurisdiction in respect of proceedings which matter be taken to the tribunal. Therefore, any matter in respect of which an action may be taken even later on, Civil Court shall have no jurisdiction to entertain any proceedings thereof. The bar of Civil Court thus apply to all such matters which may be taken cognizance of the DRT, apart from those matters in which measures have already been taken under Section 13(4) of SARFAESI Act.
12. In the present case, the appellant not only impleaded respondent no.-1 as a defendant but also the respondent no.-3 to 7 banks who were the secured creditors and had already initiated action under Section 13(4).
13. Section 17 of the Securitization Act confers a right of appeal to any person, including the borrower, if that person is aggrieved by any of the measures referred to in Sub-Section 4 of Section 13 taken by the secured creditor. The expression "any person" used in Section 17 is of wide import and takes within its fold not only the borrower but also the guarantor or any other person who may be affected by action taken under RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 7/10 Section 13(4) of the SARFAESI Act. In the present case, the appellant was also an aggrieved person and perusal of the documents filed by the appellant before the Trial Court would itself show that the appellant had already approached the DRT-III by filing Securitization Application no.15/2013. He had also filed an application raising objections against the order dated 07.08.2014 for notice for settling of Sale Proclamation under Rule 53 of the Second Schedule to Income Tax Act. Not only this, the other Legal Heirs have taken recourse to the provision of Section 17 of the SARFAESI Act by filing various applications and proceeding before the DRT.
14. In para 51 of Mardia Chemicals Ltd. V Union of India & Ors., (2004) 4 SCC 311, it was held as follows:-
"However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim maybe so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages."
15. In order to invoke the jurisdiction of the Civil Court the appellant is required to make specific with regard to the fraudulent action of the secured creditor. However, in the plaint, there are not specific averments as to how the action of the respondent banks were fraudulent. The averments that respondent no.-1 had forged and fabricated the partition deed by impersonating the appellant are also bereft of any details.
RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 8/10Perusal of the copy of the partition deed filed by the appellant before the Trial Court shows that the said document is a duly registered document and a presumption regarding its genuineness can be always be drawn.
16. It appears that the appellant by clever and astute drafting wants to create an illusion of cause of action by trying to bring civil suit within the parameters laid down in Mardia Chemicals case to keep the secured creditor at bay. On almost similar facts, Hon'ble Supreme Court in "Jagdish Singh Vs. Hiralal & Ors." held that the Civil Court had no jurisdiction to entertain the suit so far as the measure taken by the Secured Creditor under Section 13(4) of SARFAESI Act against which an aggrieved person has a right to file appeal before the DRT to determine as to whether there has been any illegality in the measures taken. The appellant in the present case clearly falls within the meaning of "any person" under Section 17 of the SARFAESI Act and he has to seek his remedies before the DRT or the Appellate Tribunal which the appellant had already done.
17. Therefore, Ld. Trial Court committed no error in holding that the suit filed by the plaintiff was barred under Section 34 of the SARFAESI Act and the plaint was rightly rejected. I do not find any infirmity or illegality in the order dated 29.05.2015 and the same is reaffirmed.
18. The appeal filed by the appellant is accordingly dismissed being devoid of any merits.
RCADJ/61031/2016 Gurvinder Singh Marwah Vs. Tarvinder Singh Marwah & Ors. Page No. 9/10No order as to costs.
Decreesheet be prepared accordingly.
Trial Court Record be sent back forthwith alongwith the copy of this judgment.
Appeal file be consigned to Record Room.
Announced in the open Court (ANIL KUMAR SISODIA)
Dated: 26th April, 2017 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
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