IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 FAO.No. 162 of 2007() --------------------- AS.31/2006 of II ADDL.DISTRICT COURT,ERNAKULAM OS.1234/2005 of II ADDL.M.C., ERNAKULAM .................... APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2 ------------------------------------------------------------------ 1. THE SYNDICATE BANK, SHANMUGHAM ROAD BRANCH, KOCHI-31, REP. BY THE BRANCH MANAGER. 2. THE REGIONAL MANAGER, SYNDICATE BANK, SHANMUGHAM ROAD, ERNAKULAM, KOCHI-13. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.M.R.SARIN SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.KIRAN SANKAR RESPONDENT(S): APPELLANT AND RESPONDENTS 3-6/PLAINTIFF & D3 TO 6 ------------------------------------------------------------ 1. R.BALASUBRAMANIAN, S/O. RAMAKRISHNAN, PLOT NO.14, 34/963, PRESS CLUB COLONY, PADIVATTOM, EDAPPALLY, COCHIN-24. 2. P.V.RAMAKRISHNAN, S/O. P.V.VENKITASUBRAMANYA SHARMA, C.C.NO.40/9034, SHARMA BUILDING, CHITTOOR ROAD, ERNAKULAM, COCHIN-35. 3. VAIDHYANATHAN, S/O. P.V.RAMAKRISHNAN, C.C.NO.40/9034, SHARMA BUILDING, CHITTOOR ROAD, ERNAKULAM, COCHIN-35. 4. HARIHARAN, S/O. P.V.RAMAKRISHNAN, C.C.NO.40/9034, SHARMA BUILDING, CHITTOOR ROAD, ERNAKULAM, COCHIN-35. 5. BALAKRISHNAN, S/O. P.V.RAMAKRISHNAN, C.C.NO.40/9034, SHARMA BUILDING, CHITTOOR ROAD, ERNAKULAM, COCHIN-35. ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 162 OF 2007 = = = = = = = = = = = = = = = Dated this the 26th day of November, 2009. J U D G M E N T This appeal is preferred against the order of remand passed by the Additional District Judge, Ernakulam in A.S.31/06. The brief facts necessary are stated as follows. 2. The suit is one for a declaration to the effect that the the shares of the plaintiff and defendant 5 and 6 in the plaint schedule property shall not be bound by any action taken by the defendants 1 and 2 under the Securitisation Act and for a permanent prohibitory injunction. 3. It is the case of the plaintiff Bank that the property belong to one Lakshmi Ammal and on her death it had devolved upon her sons Venkitasubrahmanya Sharma and Ramaswamy Iyer and the said Ramaswamy Iyer had relinquished his right in favour of Venkitasubrahmanya Sharma and on his death the property devolved upon Ramakrishnan who had four children. The plaintiffs and D4 F.A.O. 162 OF 2007 -:2:- to D6 are the children of Ramakrishna. It is the contention of the Bank that the said Ramakrishnan has executed a settlement deed in favour of D4 as per the document No.3212/93 thereby making the 4th defendant the absolute owner or owner with respect to 12 cents of property. The contention of the Bank is the said property is equitably mortgaged in favour of the Bank and as the liability to the Bank is not discharged under the Securitisation Act it has decided to proceed against the property for realisation of the debt. 4. On the contra the plaintiff in the suit would contend the property belonged to the plaintiff and D4 to D6 on the death of Ramakrishnan jointly and each are entitled to equal right over the property and therefore the question of D4 mortgaging the property in favour of the Bank will affect the right of the persons who are otherwise entitled to the property. So the crux of the question for determination is whether D4 is the absolute owner of the property or is only a co-owner of the property along with the remaining extent. F.A.O. 162 OF 2007 -:3:- 5. Now the learned counsel for the Bank would contend that they have initiated proceedings after due compliance u/s 13(2) of the Securitisation Act and therefore if at all there is any remedy for the party it is to proceed u/s 17 of the Act to move an application before the Debt Recovery Tribunal for determination of the right of him. On the contra the learned counsel for the plaintiff would contend that the matter to be decided is the absolute civil right between the parties and S.34 of the Securitisation Act does not provide absolute bar on the civil Court. The learned counsel also would submit that when a portion of the undivided family property is to be proceeded against, one can only proceed against the fraction of that share for which one has to take recourse to a civil proceedings. A reading of S34 with the annexures would reveal that there is no absolute bar of jurisdiction but things depends upon the facts and circumstances of each case to decide the question regarding the jurisdictional aspect. F.A.O. 162 OF 2007 -:4:- 6. But the learned Munsiff proceeded as if S.34 is an absolute bar and therefore rejected the plaint under Order 7 Rule 11(d) of Code of Civil Procedure. The learned Addl. District Judge would hold that it is not so and therefore directed the Munsiff to restore the suit and proceed with the same and then also consider the injunction application. As discussed by me earlier it has to be stated that one cannot hold that there is an absolute bar of jurisdiction. The bar of jurisdiction is inter twined with the facts of the case as well. So it is a matter that has to come out on facts as well. It is always stated that under O.14 Rule 2 of the Code of Civil Procedure, a question of maintainability of a suit can be tried as a preliminary issue provided no further materials are necessary to arrive at a decision. But if it is intermingled with the facts then it may not be really correct to proceed and dispose of the matter as a preliminary issue without permitting the parties to adduce evidence. So these are all matters which require consideration. I also hold the view that there is no absolute bar of jurisdiction for a civil Court depending upon the facts of the case. Therefore the proper F.A.O. 162 OF 2007 -:5:- remedy is to direct the learned Munsiff to restore the case back to file, ask the defendant to file a written statement and raise issues and then dispose of the matter after giving them an opportunity to adduce evidence in accordance with law where also, as a part of the trial of the case, the question of maintainability of the suit also can be considered. 7. I will make it very clear that ordinarily when a question of jurisdiction is raised it has to be treated as a preliminary issue but when jurisdictional aspect itself involve complicated facts it is desirable to enter a finding after the materials are made available before the Court. Since this is a situation it may not be really desirable to deal with the injunction application at that stage and therefore I feel the trial court can be directed to expedite the trial of the case and dispose it of within three months from the date of first appearance of the parties. I direct the parties to appear before the trial Court on 6.1.2010. F.A.O. 162 OF 2007 -:6:- 8. I make it very clear that any observations made by me or by the learned District Judge shall not be a guiding factor in determining the issues involved in the case. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-