THE HON’BLE Ms. JUSTICE G. ROHINI Civil Revision Petition No. 1013 of 2011 Dated: 22.03.2011 Between: Thota Rajesh, West Godavari District. … Petitioners And The Authorised Officer, Palakole and 2 others. … Respondents THE HON'BLE MS JUSTICE G.ROHINI Civil Revision Petition No. 1013 of 2011 O R D E R : The plaintiff is the petitioner in this Revision petition which is directed against the order dated 18.09.2009 in I.A.No.503 of 2009 in O.S.No.611 of 2007 on the file of the Court of the Principal Junior Civil Judge, Tanuku. The facts in brief are as under: O.S.No.611 of 2007 is filed by the petitioner herein for perpetual injunction restraining the defendants 1 to 3-the respondents herein from interfering with his possession in respect of the suit schedule property. Admittedly, defendant No.1 is the father of the plaintiff and the defendant No.2 is his brother. It was pleaded by the plaintiff that he along with the defendants 1 and 2 purchased the suit schedule property out of the sale proceeds of the ancestral property belonging to the defendant No.1. It was claimed that in an oral partition among the plaintiff and the defendants 1 & 2 a part of the suit schedule property i.e. 23 square yards consisting of a hall in the ground floor and a room in the first floor fell to the share of the plaintiff and the other part of 158 square yards fell to the share of defendants 1 and 2 through which he got a right of passage. Alleging that the 3rd defendant Bank (respondent No.1 herein) was attempting to dispossess the plaintiff under the guise of the proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’), he filed the main suit for permanent injunction. The 3rd defendant Bank filed written statement stating that the 3rd defendant availed house loan of Rs.2 Lakhs by creating an equitable mortgage with the Bank and that he committed default in payment of installments and therefore proceedings were initiated under the SARFAESI Act and possession notice was issued on 1.9.2007. The 3rd defendant filed I.P.No.35 of 2006 on the file of the Court of the Senior Civil Judge, Tanuku showing the plaint schedule property as his own property. It was also pleaded that the 2nd defendant settled the said property in favour of the 3rd defendant under Settlement Deed, dated 12.1.2005 and the original settlement deed dated 12.01.2005 was deposited with the Bank. Subsequently the 3rd defendant filed I.A.No.503 of 2009 under Order VII Rule 11(d) of C.P.C with a prayer to reject the plaint on the ground that the civil suit is barred under Section 34 of the SARFAESI Act. It was also claimed that the Bank had taken possession of the property on 01.09.2007. After hearing both the parties, the Court below by order dated 18.09.2009 allowed the said application holding that the suit is barred by law and therefore, the plaint is liable to be rejected. Aggrieved by the same, the present revision petition is filed. I have heard the learned counsel for the petitioner and perused the material available on record. The learned counsel for the petitioner vehemently contended that since the plaintiff is not a borrower and he is in no way concerned with the alleged loan availed by the defendant No.2, the bar under Section 34 of the Act is not applicable. It is also contended that since the suit is at the stage of trial, the application filed under Order VII Rule 11(d) of C.P.C. for rejection of the plaint is not maintainable and therefore, on that ground also the application is liable to be dismissed. In support of his submission, the learned counsel for the petitioner has relied upon K.Jagan Reddy v. G.Srinivas and others[1], C.Natarajan v. Ashim Bai and Another[2], Vishnu Dutt Sharma v. Daya Sapra[3], and Kamala and others v. K.T.Eshwara Sa and others[4] It is to be noticed that the relationship between the plaintiff and the defendants 1 and 2 is not in dispute. Even according to the plaintiff, the suit schedule property is a joint family property. However, he is claiming a share on the basis of an oral partition between the parties. It is also not disputed before this Court that the property in question was mortgaged to the 3rd defendant-Bank. As per Section 34 of the SARFAESI Act, a bar has been imposed on the jurisdiction of the civil Court to interfere in a suit or proceeding in respect of any matter, which a Debts Recovery Tribunal is empowered to determine under the SARFAESI Act. In the present case a possession notice was admittedly issued by the 1st respondent Bank and thereafter the suit was filed for injunction. The petitioner’s contention that the bar under Section 34 of the Act is not applicable to the present suit since he is not a borrower was clarified by this Court in B.T.S. Estate Private Limited v. State Bank of India[5]. It was held by a Division Bench in the said decision that not only the borrower but also any person aggrieved by action taken by Bank under the Act, can avail the remedy of appeal under Section 17 of the SARFAESI Act. It was also explained by the Division Bench that a comprehensive reading of the proviso to Section 17(1) of the SARFAESI Act, which prescribed a different set of fee to the borrower and to the person other than the borrower would make it clear that any person can file an appeal including the borrower. In the light of the settled legal position, the contention of the learned counsel for the petitioner that no remedy is available to the plaintiff before the Debts Recovery Tribunal cannot be accepted. The law is also well settled that jurisdiction under Order VII Rule 11 of C.P.C. can be invoked at any stage of the proceedings. Hence, the fact that the present suit is at the stage of trail is not a bar to entertain the application under Order VII Rule 11(d) of C.P.C. For the aforesaid reasons, I do not find any merit in any of the contentions raised by the learned counsel for the petitioner and accordingly, the civil revision petition is dismissed at the stage of admission. No costs. _______________ G. ROHINI, J Date: 22.03.2011 KLP [1] 2007 (6) ALT 383 [2] AIR 2008 SC 363 [3] (2009) 13 SCC 729 [4] (2008) 12 SCC 661 [5] 2008 (6) ALT 584