( 1 ) wp6471.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6471 OF 2008 WITH CIVIL APPLICATION NO. 6686 OF 2010 AND CIVIL APPLICATION NO. 6685 OF 2010 Shri Dilip s/o. Bhagchand Runwal .. Petitioner Versus ICICI Bank Ltd. and ors. .. Respondents Mr. A.A. Mukhedkar, Advocate for the petitioner. Mr. U.N. Shete, Advocate for respondent No.1. CORAM : V.R. KINGAONKAR,J. DATED : 13.01.2011 P.C. :- 1. Heard learned Counsel for the parties. 2. By this petition, the petitioner challenges the order dated 26th September, 2008, rendered by the Trial Court on application (Exh.17) in suit bearing R.C.S. No. 817 of 2008. The petitioner filed said suit against respondent No.1 ( 2 ) wp6471.08 - Bank and two other defendants for perpetual injunction. The contention of the petitioner was that his shop property No. L-1, situated on lower floor of Dhanlakshmi Trade Center, Aurangabad, was not liable to be attached for effecting recovery of debt in respect of loan borrowed by respondent Nos. 2 and 3 from respondent No.1 – Bank. 3. The respondent No.1 – Bank (defendant No.1) submitted an application vide Exh. No. 17 for framing a preliminary issue under Section 9-A of the Code of Civil Procedure, regarding jurisdiction of the Trial Court. It was contended that the suit shop was duly secured and was charged with the liability for repayment of the loan advanced to defendant Nos. 2 and 3 and therefore the Civil Court could not have entertained the suit. The objection raised by respondent No.1 has been allowed vide the impugned order. 4. The Counsel for the petitioner would submit that the agreement of sale executed by the petitioner in favour of respondent Nos. 2 and 3 is not a security created for the repayment of the loan and therefore under Section 34 of the ( 3 ) wp6471.08 Securitisation and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002 (for short “the Securitisation Act”) is not attracted. The contention of the learned Counsel for the petitioner is that the agreement for sale was conditional and respondent Nos. 2 and 3 could not have been received any title unless entire payment was made. It is contended that respondent Nos. 2 and 3 failed to pay the part of the consideration though they had agreed to pay the same and therefore the agreement of sale was rescinded by the petitioner vide letter dated 30th July, 2005. A copy of said letter (Ex.P-3) is also placed on record. The letter purports to show that respondent No. 3 had assured through the proprietor to pay the amounts shown under the cheques issued on 10th March, 2003 and 17th August, 2003. Yet, the payment was not made. In order to verify such a fact, the cheques were called and have been perused. What appears from the cheques in question is that they were never presented to the bank by the petitioner. It is probable, therefore, that such cheques were obtained by the petitioner by way of security or in order to create a record, but non-payment cannot be assumed only because such kind of letter, which is ( 4 ) wp6471.08 internal transaction between the petitioner and respondent No.3. Perusal of communication dated 2nd July, 2003 (Ex.P-4) clearly shows that the petitioner admitted payment of Rs. 2,90,000/- by respondent No.3 and respondent No.2. Rest of the amount was to be paid by the bank. The letter dated 02.07.2003 (Ex.P-4) is addressed to respondent No.1-Bank. The petitioner clearly agreed that the shop in question may be treated as security and mortgage transaction can be effected in respect thereof. Thus, the petitioner assured respondent No.1 – Bank that he had no objection to create charge on the suit shop. Now, the petitioner is estopped from saying that the charge could not have been created on the said property. 5. There is clear bar created under Section 34 of the Securitisation Act, which debars the Civil Court from entertaining any suit in respect of the transaction of which the jurisdiction is available to the Debts Recovery Tribunal. The Civil Court cannot grant any injunction in view of the legal embargo. The learned Civil Judge has duly appreciated the legal position. Having regard to the “Mardia Chemical ( 5 ) wp6471.08 Limits V/s. Union of India and Ors.” (AIR 2004 SC 2371), no perversity is noticed from the impugned order. Needless to say, the petition under Article 227 of the Constitution of India is not maintainable in the fact situation of the present case. The petition is accordingly dismissed. 6. In view of disposal of the petition, the connected civil applications do not survive and the same are disposed of as such. [V.R. KINGAONKAR,J.] snk/2011/JAN11/wp6471.08