: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.632 OF 2009 Balbhim Co-op. Bank Ltd. .. Applicants V/s. Jaydev Virumal Rupani & Anr. .. Respondents Mr. P.D. Dalvi for the Applicants. Mr. G.N. Salunkhe for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATED : 28 TH JANUARY, 2010. P.C.: 1. The grievance of the applicant-Bank is that by order dated 8th October, 2009 passed below Exhibit-19 in Regular Civil Suit No.581 of 2009, the Civil Judge, Junior Division, Kolhapur, has committed an error of law by directing that the preliminary issue should be framed under Section 9A of the Code of Civil Procedure. A few material facts in the present case are as follows : 2. The applicant-Bank loaned a certain amount of money to M/s. Samarth Sakshi Construction, a partnership firm, i.e. the respondents-borrowers herein. The applicant-Bank agreed to accept the : 2 : aforesaid firm’s property situated at City Survey No.1755, admeasuring an area of 289.9 sq.mtrs. and 200 sq.mtrs. at E Ward, Rajarampuri, 4th Lane, Kolhapur, as security for the loan. Since the loan was not repaid by the aforesaid firm, it was treated as non-performing asset by the Bank. A notice was issued under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short “the Act”), on 24th March, 2009 to the respondents-borrowers. This was followed by a letter under Section 13(4) of the Act on 23rd June, 2009. The applicant-Bank took possession of the secured asset under the provisions of the Act on 7th August, 2009. The respondents-plaintiffs filed a Suit seeking injunction restraining the applicant- Bank from disturbing their possession of the suit property. They contended that they had purchased the aforesaid property from the firm. The Suit was filed on 5th August, 2009 before the Court of Civil Judge, Senior Division, Kolhapur being Regular Civil Suit No.581 of 2009. The applicant-Bank was issued a notice by the Court. A written statement : 3 : was filed by the applicant-Bank contending that the suit property consisted of the secured asset which the aforesaid firm had given to the applicant-Bank as security under the security agreement. The applicant-Bank also pointed out that the physical possession of the suit property was taken by it on 7th August, 2009. 3. The applicant-Bank preferred an application under Order 7 Rule 11(d) of the Code of Civil Procedure for rejection of the plaint, as there was an express bar under Section 34 of the Act to a Suit being entertained by a Civil Court. The applicant-Bank also pointed out that the respondents had, in fact, filed an Appeal under Section 17 of the Act before the Debt Recovery Tribunal, Pune, being Second Appeal No.78 of 2009, which was pending. 4. By the impugned order dated 8th October, 2009, the trial Court rejected the application filed by the applicant-Bank under Order 7 Rule 11(d) of the Code of Civil Procedure and held that an issue : 4 : under Section 9A of the Code of Civil Procedure would be framed. The trial Court then directed the parties to maintain status-quo till the decision of the preliminary issue. 5. Mr. Dalvi appearing for the applicant-Bank submits by relying upon the judgment of a learned Single Judge of this Court in the case of Khamgaon Urban Co-operative Bank Ltd. v/s. Karunashankar Ramkishore Tiwari & Ors., reported in 2007 (2) ALL MR 44, that the jurisdiction of the Civil Court is expressly barred in view of the provisions of Section 34 of the Act. He submits that the Trial Court, while directing that a preliminary issue be framed, has made observations which are contrary to that judgment. He further submits that the trial Court has erred in directing the parties to maintain status-quo in respect of the possession of the suit property when there was no application filed by the respondents for the same. According to the learned Advocate, the trial Court could not have granted such relief in favour of the respondents without there being any application. : 5 : 6. Mr. Salunke appearing for the respondents submits that the Court has committed no error in framing a preliminary issue under Section 9A of the Code of Civil Procedure. He submits that the Court while considering an application under Order 7 Rule 11(d) of the CPC is only expected to peruse the plaint; if there are any averments or pleadings in the plaint which indicate that the suit is barred by any law, then the trial Court can reject the plaint. He points out the pleadings in the present plaint filed in the Suit for injunction. He submits that the applicants have not stated anywhere that the suit property is part of the secured asset, which the aforesaid firm had agreed to maintain as security for the loan borrowed by it from the applicant-Bank. He further submits that in these circumstances, the Court cannot be faulted for framing preliminary issue as according to the plaintiff a fraud has been committed and the Civil Court would have jurisdiction to decide the same. 7. I have with the assistance of the learned Counsel for the parties perused the plaint. The : 6 : pleadings in the plaint do not in any manner reflect that the Suit would be barred by any law in force. The pleadings are those which are normally found in a Suit for an injunction. No reference has been made either to the application filed by the plaintiffs before the Debt Recovery Tribunal under Section 17 of the Act, nor has any reference been made to the fact that the suit property was part of the secured asset. Thus, the finding of the trial Court that the plaint cannot be rejected under Rule 7 Order 11(d) of the Code of Civil Procedure is correct. The Court has rightly directed that the parties would be heard on the preliminary issue framed. However, observations have been made in the order which indicate that the trial Court was of the view that the Court would have jurisdiction. The observations made with regard to Section 164 of the Maharashtra Co-operative Societies Act as well as the Securitization Act must, in my view, be set aside. 8. Accordingly, the order framing the preliminary issue is upheld. The issue shall be decided by the trial Court within one month from today. : 7 : 9. Till then the parties shall maintain status-quo as of today. 10. All observations made in the order with respect to the aforesaid Acts will have no bearing on the order which would be passed on the preliminary issue. 11. The parties shall appear before the trial Court on 5th February, 2010. 12. Writ of the order to be sent down immediately. .......