A.O. No. 497 of 20[SECTION] Hon'ble [ENTITY], J.
Mr. [ENTITY], Advocate for the appellant.
Mr. [ENTITY], Senior Advocate, assisted by Mr. [ENTITY], Advocate, holding brief of Mr. [ENTITY], Advocate for respondents.
According to learned counsel for the appellant, appellant has neither taken any loan nor he stood as guarantor in respect of any loan. Appellant has filed a civil suit for permanent injunction and declaration. Alongwith the said suit, he filed a temporary injunction application, which has been rejected by learned trial Court only on the ground that suit is barred by [SECTION] of [ACT].
Hon'ble Supreme Court in the case of [PRECEDENT] has held as follows:
"50. It has also been submitted that an appeal is entertainable before the Debt Recovery Tribunal only after such measures as provided in [SECTION] are taken and [SECTION] bars to entertain any proceeding in respect of a matter which the Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. Thus before any action or measure is taken under [SECTION], it is submitted by Mr. [ENTITY] one of the counsel for respondents that there would be no bar to approach the civil court. Therefore, it cannot be said no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri [ENTITY] is not correct. A full reading of [SECTION] shows that the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or appellate Tribunal is empowered to determine in respect of any action taken "or to be taken in pursuance of any power conferred under this Act". That is to say the prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under [SECTION]. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus applies to all such matters which may be taken cognizance of by the Debt Recovery Tribunal, apart from those matters in which measures have already been taken under [SECTION]."
Similar view has been taken by Hon'ble Supreme Court in the case of [PRECEDENT]. Para 68 of the said judgment is extracted below:
"68. We are also satisfied that merely because for recovery of the loan secured by banks, a special Act, namely, Recovery of Debts due to [ACT] has been enacted which is not a bar for the civil Court to apply to other relief such as [SECTION] of the [ACT]. We are also satisfied that by issuing such direction on the application of [SECTION] of the [ACT], the Division Bench has not modified or eroded the order passed by the DRT. On the other hand, it is an admitted fact that the Bank has accepted the impugned verdict of the High Court and did not challenge the same before this Court by filing an appeal. We are also satisfied that by granting such a relief, the Bank is not prejudiced in any way by bringing other properties for sale first to satisfy the mortgage debt payable by defendant Nos. 1 and 2. In fact, the High Court was conscious and also observed that if sale proceeds of other items of properties are not sufficient to satisfy the debt payable to the Bank by defendant Nos. 1 and 2, in that event, Bank can proceed against the suit properties."
However, in the case of [PRECEDENT] Hon'ble Apex Court has taken a slightly different view. Para no. 42 of the same is extracted below:
"There is another reason why the impugned order should be set aside. If respondent 1 had any tangible grievance against the notice issued under [SECTION] or action taken under [SECTION], then she could have availed remedy by filing an application under [SECTION]. The expression "any person" used in [SECTION] is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under [SECTION] or [SECTION]. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under [SECTION] and [SECTION] and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the [ACT] are both expeditious and effective"
Having regard to the facts and circumstances of the present case, I am of the prima facie view that relief sought by the appellant in his suit cannot be granted by Debts Recovery Tribunal under [SECTION] of [ACT].
In such view of the matter, list this appeal for final disposal on 13.02.2019.
Till the next date of listing, status quo as regards possession and title of the suit property shall be maintained by the parties.
([ENTITY], J.) 14.12.20[SECTION] [ENTITY]