1 42 fa.533.10 anr ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 533 OF 2010 WITH CIVIL APPLICATION NO. 1205 OF 2010 Ravji Govind Prabhu. ... APPELLANT Vs. Uttam Power & Steel Pvt. Ltd. and anr. ... RESPONDENTS ­­­­­­­­ Mr. Sudhir Prabhau for the Appellant. Mr. K.K.Singhvi, Senior Counsel, with Mr. K.M. Nair, Mr. Subhash Desai i/b Mr. Sujeet P. Salkar for Respondent Nos.1 & 2. ­­­­­­­­ CORAM : A.M. KHANWILKAR and A.A. SAYED, JJ. DATE : 05 th August, 2010. P.C. 1 Heard the learned counsel for the parties. 2 This appeal by the original plaintiff takes exception to the judgment and decree passed by the Civil Judge Senior Division, Sindhudurg at Oros dated 15 th January, 2010 in Special Civil Suit No. 57 of 2009. The trial Court framed preliminary issue of jurisdiction and has 2 42 fa.533.10 anr answered the same against the plaintiff. The trial Court has found as of fact that the properties mentioned in Schedule­A to the plaint were put to auction and the defendants purchased the same for valuable consideration. As a result, the grievance of the Appellant­plaintiff, if any, was in respect of the action taken under the provisions of SARFAESI Act. In that case, the jurisdiction of the Civil Court is barred. 3 To get over this position, it is argued before us that part of the plot owned by the Appellant, which are included in Schedule­A of the plaint were never put to public auction. To assuage this apprehension of the Appellant, we called for the record of the proceedings. Besides, the Respondents were called upon to file affidavit to explain the said issue. In the reply affidavit filed by the Respondents pursuant to liberty given by us, all the relevant documents in the form of sale certificate, power of attorney and sale­deed have been produced, which were part of the record before the lower Court. Going by the said documents, it is amply clear that in respect of each of the plots as referred to in Schedule­A to the plaint, sale has been effected in favour of the Respondents only after 3 42 fa.533.10 anr following necessary procedure under the SARFAESI Act. That included conducting of public auction and the sale was effected in favour of the Respondents because the Respondents were the highest bidders. It is not possible to countenance the grievance of the Appellant that part of the plots, which are now referred to in the chart annexed as Exhibit­A to the rejoinder affidavit were not put to public auction at all. As a matter of fact, the case made out in the plaint as can be discerned from paragraph No.2, (internal page 7 of the plaint, running page 29 of the appeal paper­ book) was that, no auction sale “whatsoever” was held before sale of the property referred to in Schedule­A of the plaint. That fact is belied by the documentary evidence on record. As mentioned earlier, the trial Court on analizing the documents on record, for considering the preliminary issue has recorded a finding of fact that the properties mentioned in Schedule­ A of the plaint was put to public auction and the defendants have purchased it for valuable consideration. Thus, the argument now canvassed before this Court, it is seen that the Appellant­plaintiff has changed his original stand. In the first place, the Appellant­plaintiff ought to have clearly stated in the plaint as to in respect of which specific plot 4 42 fa.533.10 anr now referred to in Exhibit­A chart annexed to the rejoinder affidavit auction has not been held. That averment is completely missing. Such plea cannot be permitted for the first time before the Appellate Court that too by way of argument developed across the bar. 4 Assuming that the Appellant wants to pursue the said plea that portion of the plots were not put to auction sale at all, such grievance can be addressed even by the authority under the SARFAESI Act before whom appeal proceedings are amenable. In the said proceedings, such plea can be taken by the Appellant, if so advised and if the Appellant succeeds in the said plea, appropriate order can be passed by the said authority. It cannot be doubted that even at this stage of deciding preliminary issue of jurisdiction, in exercise of powers under Section 9A of the Civil Procedure Code as applicable to State of Maharashtra, it was open to the parties to produce evidence in support of their respective plea concerning jurisdiction of the Court. In other words, it was open to the plaintiff to not only plead but also prove the fact by leading evidence that portion of the plots referred to in Schedule­A to the plaint were not 5 42 fa.533.10 anr put to public auction at all. No such attempt was made by the plaintiff before the trial Court. 5 Taking over all view of the matter, therefore, no interference in the appeal under consideration is warranted. The appeal is therefore, dismissed with liberty to the Appellant­plaintiff to take recourse to such other remedy as may be permissible by law, which will have to be considered on its own merits. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]