C.R. No. 6573 of 2005 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6573 of 2005 (O&M) Date of decision: January 30, 2009 State Bank of India .. Petitioner v. Raj Kumar Bhandari and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. A. K. Khunger, Advocate for the petitioner. Mr. Amit Rawal, Advocate for respondents No.1 and 2. .. Rajesh Bindal J. Challenge in the present petition is to the order dated 1.8.2005, passed by the learned court below, whereby the application filed by the petitioner, under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint was dismissed. Briefly, the facts are that respondents No.1 and 2 filed a suit against respondents No.3 and 4 for declaration to the effect that they are owners in possession of the suit property and further that any charge or mortgage created by respondents No.3 and 4 in favour of the petitioner is illegal, null and void and not binding on them. Challenge was also made to sale deeds dated 30.7.1992 and 3.8.1992 executed by Pushpa Singh wife of Iqbal Singh in favour of respondents No.3 and 4 pertaining to the suit property and also praying for permanent injunction restraining the petitioner from taking possession of the suit property. It is in this suit that after framing of the issues, an application was filed by the petitioner for rejection of the plaint on the ground that in terms of the provisions of Sections 17(1) and 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, `the Act'), Civil Court does not have the jurisdiction to entertain the lis. Finding the application to be misconceived, the learned court below dismissed the same vide impugned order. Learned counsel for the petitioner submitted that after purchase of the property vide sale deeds dated 30.7.1992 and 3.8.1992, respondents No.3 and 4 mortgaged the same with the bank in the year 1992-93 and raised huge loan. As C.R. No. 6573 of 2005 [2] there was default in repayment thereof, notice under Section 13(2) of the Act was issued to the borrowers seeking to take possession of the suit property. As subject- matter of the suit is property, the possession of which is sought to be taken by the petitioner in exercise of powers conferred under the Act, in terms of the provisions of Sections 17(1) and 34 of the Act, the jurisdiction of the civil court is clearly barred. Once that is so, Order 7 Rule 11 of the Code of Civil Procedure immediately comes into play and the plaint filed by respondents No.1 and 2 deserved rejection at the threshold. He further submitted that whatever objections respondents No.1 and 2 have with regard to ownership, attachment etc. of the property, the same can very well be taken before the Debts Recovery Tribunal, which has been conferred jurisdiction to deal with the issues under the Act. On the other hand, learned counsel for respondents No.1 and 2 submitted that the suit filed by them is for declaration claiming themselves to be the owners in possession of the property on the basis of the sale deeds executed in their favour by the true owner of the property. The sale deed, which was registered in favour of respondents No. 3 and 4 by Pushpa Singh is, in fact, on account of fraud. She had sold the property to respondents No.3 and 4 during the pendency of a civil litigation which was ultimately decided in favour of the legal heirs of deceased-Ram Kaur. Respondents No.1 and 2 had purchased the property from the decree holders vide two sale deeds dated 4.3.2004. He further submitted that the conduct of the vendor of the property to respondents No.3 and 4, namely, Smt. Pushpa Singh was further commented upon by the learned trial court in the earlier litigation vide order dated 23.4.1994 in an application filed by her under Order 1 Rule 10 of the Code of Civil Procedure by opining that she was guilty of concealing material facts from the court and playing fraud with the court for obtaining ex-parte decree with regard to the suit property in her favour when the question of genuineness and validity of the will projected by her had already been adjudicated upon while passing preliminary decree. It was further opined that she was liable to be prosecuted for her conduct. It is further submitted that for the purpose of recovery of dues under the Act, the Income-tax Rules have been adopted. In terms of Rule 11 thereof, even if there is any dispute regarding title of the property, the same has to be gone into by the civil court. The primary issue in the present case is not the challenge to the notice issued by the petitioner to the borrowers or any other person, rather, it is the dispute of title of the property which cannot be gone into by the Debts Recovery Tribunal, where proceedings are summary in nature. It was further submitted that it is settled law that partial rejection of C.R. No. 6573 of 2005 [3] the plaint is not permissible. It can be rejected in toto. At the most, the petitioner can pray to the court that the issue regarding validity or otherwise of the notice issued under Section 13(2) of the Act cannot be gone into by the civil court because of bar of jurisdiction. However, in the suit, this is not the prayer. Though the petitioner has been impleaded as one of the defendants praying for restrain against it for taking over the possession of the property, otherwise the primary claim is regarding title of the suit property which is a lis primarily between respondents No.1 and 2, being plaintiffs and respondents No.3 and 4, being defendants. The same cannot be tried by the Debts Recovery Tribunal and qua that there is no prayer by respondents No.3 and 4 for rejection of plaint. Meaning thereby the claim regarding title of the property has to be decided by the civil court. Accordingly, the application for partial rejection of the plaint was not maintainable. Reliance was placed upon Indian Bank v. ABS Marine Products Pvt. Ltd., (2006) 131 Comp. Cases 339; Mardia Chemicals Ltd. and others v. Union of India and others, 2004(4) SCC 311 and Sopan Sukhdeo Sable v. Assistant Charity Commissioner, 2006(1) RCR (Rent) 138. Heard learned counsel for the parties and perused the reord. In the present case, respondents No. 1 and 2-plaintiffs filed a suit praying for following reliefs: “ It is, therefore, prayed that a decree of declaration that the plaintiffs are owners in possession of property bearing no. B-XIX- 259, measuring 824 sq. yards (615 sq. yards is owned by plaintiff no. 1 while 209 sq. yards is owned by plaintiff no. 2) as shown red in the plan attached and bounded as follows: East: Street to the extent of 71' West: Karnail Singh and others to the extent of 72' North: Mangal Singh to the extent of 110' South: Batra Hotel to the extent of 99' out of khasra no. 976/721/600/466 as per jamabandi for the year 1998-99 situated in Village Taraf Gehlewal, Hadbast No. 166, Tehsil and District Ludhiana, near Dr. Sham Singh Road and also comprised in khasra no. 204, 205, khata no. 579/676 as per jamabandi for the year 2000-2001 situated in village Taraf Karabara, Hadbast No. 161, Tehsil and District Ludhiana, near Dr. Sham Singh Road, as shown red in the plan attached and none of the defendants have any right, title or interest in the said property AND C.R. No. 6573 of 2005 [4] a decree of declaration that any charge or mortgage or transfer made by defendants no. 1 and 2 in respect to the said property in favour of defendant no. 3 or any other person is illegal, null and void and is not binding upon the plaintiffs as the defendants no. 1 and 2 never acquired or had any right, title or interest in the said property which was earlier owned by Smt. Ram Kaur wife of Sh. Hari Singh and after her death, the same was inherited on the basis of natural succession by her husband, children and thereafter by purchase the plaintiffs have become the owners of the said property AND a decree of declaration that the alleged sale deeds claimed to have been got executed by defendants no. 1 and 2 dated 30.7.1992 and 3.8.1992 from Smt. Pushpa Singh wife of Iqbal Singh son of Shri Hari Singh are illegal, null and void and convey no right to defendants no. 1 and 2 AND a decree of permanent injunction restraining the defendants especially defendant no. 3 from taking possession from the plaintiffs in any manner on the basis of the alleged mortgage deeds which are claimed to have been executed by defendants no. 1 and 2 in favour of defendant no. 3 on the basis of the sale deed procured by them from Pushpa Singh who herself had no right or title in the property in question as already declared vide two judgments and decrees passed by the court of Sh. Harjit Singh, Sub Judge, Ludhiana dated 29.9.1980 and of the court of Sh. O. P. Dharwal dated 7.4.1983 and also on the basis of any orders procured by defendant no. 3 under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 from the District Magistrate, Ludhiana, may kindly be passed in favour of the plaintiffs and against the defendants with costs.” The application filed by the petitioner for rejection of the plaint, applying the provisions of the Act, with the plea that the Civil Court did not have the jurisdiction to entertain the dispute, as the same is clearly barred under Section 34 of the Act. The same was rejected by the Court. The undisputed fact in the present case is that respondents No. 1 and 2 are neither loanee nor guarantors to the loan. Section 34 of the Act, which debars the jurisdiction of the Civil Court, clearly provides that it is only with respect to the matters which Debts Recovery C.R. No. 6573 of 2005 [5] Tribunal or the Appellate Tribunal are competent to determine. Section 17(1) of the Act provides that any person aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer may make an application to the Debts Recovery Tribunal . Section 13(4) of the Act authorises the secured creditor to take various steps provided therein to recover the secured debt in case the borrower fails to discharge the liability. Meaning thereby it is a Tribunal constituted for specialised purpose for dealing with the issues pertaining to recovery of secured debts of the financial institutions. The Tribunal has not been conferred the power for deciding the issue of title of the property between the parties or to set aside any sale deed executed in favour of some person, as the claim made by respondents No. 1 and 2 in the present suit is that sale deeds dated 30.7.1992 and 3.8.1992 executed by Smt. Pushpa Singh wife of Iqbal Singh are illegal as on that date, she was not competent to dispose of the property. All these issues cannot possibly be gone into by the Tribunal constituted under the Act. Even if part of the relief claimed in the suit may be within the jurisdiction of the Tribunal, on that account the plaint cannot be rejected as such as there cannot be partial rejection. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed. (Rajesh Bindal) Judge January 30, 2009 mk