1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CIVIL REVISION APPLICATION NO: 110/2008 ( State Bank of India vs. Smt.Kavita Chaure) ----------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... CORAM: R.C.CHAVAN, J. DATED: 23rd June, 2009. 1. Heard Mr. S.N.Kumar, learned counsel for the applicant. Respondent -sole is served. 2. This Revision is directed against the judgment of the learned Civil Judge, Senior Division, Chandrapur in Special Civil Suit No. 51/2007 holding that the said Court had jurisdiction to try and decide the suit. 3. The Respondent had filed a suit for declaration and permanent injunction in the background of the following facts: One Pawan Vasant Narule had taken cash credit facility of Rs. 10 lakhs from the applicant-Bank and, for this purpose, had mortgaged the shop to the Bank. Vasant Narule had also mortgaged the property bearing Plot No.94/3 admeasuring 986 sq.ft. and the house constructed thereon with the applicant- Bank on 8.6.2004 by depositing title deeds with the Bank in order to secure the cash credit credit facility of his son Pavan. Since the account of Pawan Narule became a non-performing asset, the applicant-Bank initiated action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( in short, “ the Securitization Act 2 “) by sending notice to the borrower and guarantor i.e. Pavan as well as Vasant Narule under section 13 (2) of the Act. This notice was sent on on 6.7.2006. 4. It was the respondent/plaintiff’s case before the trial Court that Vasant Narule entered into an agreement to sell property on 2.10.2004 and actually executed a registered sale deed on 13.3.2007 in favour of the plaintiff i.e. after notice was issued by the Bank under section 13 of the Securitization Act. According to the plaintiff, the property was seized by the Officers of the Bank on 20 th March 2007. She also claimed that on 13.4.2007, the applicant-Bank removed the lock and the seal. The Bank, however, denies that it removed the lock and seal of the property. Thus, it is clear that the plaintiff knew that the applicant-Bank had attached the property by exercising its powers under the Securitization Act. She claimed declaration of her ownership and a permanent injunction against the applicant-Bank from disturbing possession over the suit property. 4. By an elaborate written statement, the applicant-Bank had stated that in view of the provisions of Sections 34 and 32 of the Securitization Act, the suit is not maintainable and if the plaintiff is aggrieved, she could approach the Debts Recovery Tribunal, Nagpur ( in short “DRT”) under section 17 of the Securitization Act. According to the defendant, since jurisdiction of the Civil Court to try the suit was barred, it filed an application Exh. 16 under section 9-A of the Civil Procedure Code for deciding preliminary issue of jurisdiction of the Court. 5. Since in spite of service of notice, the respondent did not appear, notice for final disposal was ordered to be issued on 2 nd April, 2009. Even this notice was served, but the Respondent failed to appear. I have, therefore, heard the learned counsel for the applicant and gone 3 through the impugned judgment as well as the pleadings of the parties. Up to paragraph 5 in his judgment, the learned Judge had discussed the positions taken by the parties. The learned Judge observed that whether the western side of the property of the suit house or the suit house was attached u/s 13 of the Securitization Act, was a question of fact. He has also observed that the question whether the suit house was attached or not, was disputed as also the question whether notice u/s 13 (2) of the Securitization Act was issued or not. Therefore, he held that since evidence was required to be led, which was not led, he had jurisdiction to try the suit. 6. The learned counsel for the applicant also pointed out that the plaintiff was a party to the O.A. No.22/2007 before the DRT, though the DRT had not passed any orders for recovery against the plaintiff. The DRT had held that the sale deed in favour of the plaintiff was null and void. 7. It is unfortunate that the learned Judge tried to give a go-bye to the specific bar to his jurisdiction enacted by Sec.34 of the Act. After quoting the section in his judgment, he should have seen that the section totally forbade grant of injunction by any Civil Court in respect of any action taken under the Securitization Act, as also under the Recovery of Dues due to Banks and Financial Institutions Act. He should have seen that Section 17 of the Securitization Act provided a mechanism for the plaintiff to approach the D.R.T., since Section 17 enables “any person” aggrieved by the measures taken u/s 13 (4) of the Act. Therefore, the learned Judge should have held that the remedy of the plaintiff was before the D.R.T. He failed to notice that the plaintiff had specifically pleaded in paragraph 4 of the plaint that the Officers of the defendant-Bank had seized the property. She had also pleaded that she learnt that the property was mortgaged to the Bank to secure repayment and, therefore, it was attached by the Bank. In face of this 4 pleading, it is unfortunate that the learned Judge attempted to thwart the action by the Bank to recover its dues by procedure prescribed under the Securitization Act. 8. The impugned order, therefore, cannot be sustained. It has to be held that the jurisdiction of the Civil Court was barred. Revision Application is, therefore, allowed. The impugned order is quashed and set aside and instead the applicant’s application Exh.16 raising objection to the jurisdiction of the Civil Court is allowed. JUDGE sahare