-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 907 OF 2008 IN SUIT NO. 1076 OF 2005 Jigishaben B. Sanghvi & Ors. ....Plaintiffs Versus State Bank of India & Ors. ....Defendants Mr. Sanjay Jain i/b. Mr. Vinod Thaker & Ms. Chitra Rao, Advocates for the Plaintiffs. Mr. Chirag Bulsara a/w Ms. Shreevardhini Parchure i/b. M/s. Negandhi, Shah & Himayatullah, Advocates for Defendant No.1. Mr. Anirudha Joshi a/w Ms. Anjali Trivedi for defendant nos. 2 to 4. CORAM : R. V. MORE, J. DATE : 15th FEBRUARY, 2010. P.C. : 1. Heard learned Counsel for Defendant No.1 and the Plaintiffs. 2. This chamber summons is taken out by defendant no.1 under Order- VII Rule-11(d) of the Code of Civil Procedure, 1908 for dismissal of suit on the ground that same is barred under the provisions of Section 17 and 34 of the Securitisation & Reconstruction of Financial Assets and enforcement of security Interest Act, 2002 [for short “the said Act”]. 3. Plaintiff No.1 is the wife of Defendant No.4 and daughter-in-law of -: 2 :- Defendant Nos. 2 & 3. The Plaintiff Nos. 2 & 3 are the grand-daughters and Plaintiff No.4 is the daughter of Defendant Nos.2 & 3. The suit is for declaration that the Defendant No.1-Bank has no right or interest in the suit property and therefore they are not entitled to take any action under the said Act. The plaintiff has also claimed other ancillary reliefs. 4. It is case of the plaintiffs that defendant no.1 has granted financial facility to M/s. Cross Link Ship Breakers Pvt. Ltd, Bhavnagar in which defendant nos. 2 to 4 are 3 of 6 directors and defendant nos. 2 to 4 gave personal guarantee for due repayment of the financial facilities with interest and other charges due by the original borrower. Defendant no.1 claims a purported equitable mortgage created by defendant nos. 2 to 4 in respect of the suit property. It is the specific case of the plaintiffs that the suit property is jointly owned by them alongwith defendant nos. 2 to 4 in their capacity as co-parceners, and therefore defendant no.1 bank cannot take action in respect of this property. It is further case of the plaintiff that defendant no.1 bank obtained recovery certificate from the Debt Recovery Tribunal and tried to execute the same, however, could not execute due to objections filed by the plaintiffs. Defendant no.1 thereafter has taken recourse to provisions of Section 13(2) of the said Act. Therefore, the plaintiffs were constrained to file present suit. 5. It is the case of defendant no.1 that during the pendency of the suit -: 3 :- they have taken measures as contemplated under section 13(4) of the said Act. Learned counsel for defendant no.1 submitted that under the provisions of section 17 of the said Act, specific remedy of appeal is provided to any person including the borrower to approach the Debt Recovery Tribunal. He further submitted that in view of section 34 of the said Act, the jurisdiction of the civil Court is barred. To substantiate his contention, he relied upon the Apex Court decision in Mardia Chemicals Ltd v/s. Union of India reported in (2004) 4 SCC 311. 6. Learned counsel for the plaintiffs on the contrary contested the claim of defendant no.1. He submitted that the plaintiffs are co-owners with defendant no.2 to 4 in the suit property. Defendant no.1 bank has knowledge of the same and in these circumstances defendant no.1 cannot proceed against the suit property to the prejudice of plaintiffs’ rights in the suit property. He also relied upon the apex Court decision in Mardia Chemicals case (supra) especially the observations of the apex Court in paragraph 51. 7. Having heard the learned counsel for the respective parties and having gone through the pleadings and the ratio laid down by the Apex Court in Mardia Chemicals case (supra) I do not find any merit in the chamber summons. It is now settled principle of law that while considering the application under Order-VII Rule11(d) of the CPC, Court -: 4 :- cannot travel beyond the plaint and annexures thereto. It is also equally settled principle of law that veracity of the averments made in the plaint cannot be gone into at the stage of deciding an application under Order- VII Rule-11(d) of CPC. 8. Under Section 17 of the said Act, right of appeal is provided to any person including the borrower who is aggrieved by any measures referred in Section 13(4) of the said Act. Section 34 of the said Act bars the jurisdiction of civil Court to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or Debts Recovery Appellate Tribunal is empowered by or under the said Act to determine. The Apex Court in Mardia Chemicals case (supra) considered the entire scheme of the said Act and the Security Interest (Enforcement) Rules, 2002 and held that bar under section 34 of the said Act applies to all such matters which may be taken cognizance of by the Debts Recovery Tribunal or Debts Recovery Appellate Tribunal apart from those matters in which measures have already been taken under section 13(4) of the said Act. 9. The Apex Court, however, in paragraph no. 51 of the said judgment has carved out some exceptions. The Apex Court specifically observed that jurisdiction of the civil Court can be invoked where the action of secured creditor is alleged to be fraudulent or his claim is so absurd or untenable which may not require probe whatsoever. The Apex Court further held -: 5 :- that scope of such enquiry is similar to the scope in cases of English mortgage. The Apex Court in this regard quoted with approval judgment of the Madras High Court in the matter of V. Narasimhachariar v. P. S. Swaminatha Iyer [AIR-1955 Mad 135]. The Madras High Court in paragraph no.22 of the said judgment observed that the mortgagor can approach the Court if there are materials to show that power of sale is exercised in a fraudulent or improper manner contrary to terms of mortgage. It was further observed that the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which the relief is sought. 10. Now let us see whether the plaintiffs have pleaded any of the grounds mentioned above in their plaint. In paragraph 3 of plaint, the plaintiffs have averred that defendant no.1 was conscious of the fact that HUF of the plaintiffs and defendant nos. 2 to 4 is neither a borrower or a guarantor or a mortgagor. It is further averred that the plaintiffs being co- parceners in the said HUF have legal and unencumbered right in the suit property. In paragraph 4 of the plaint, the plaintiffs have again averred that HUF is co-owner of the suit property and this fact is maliciously suppressed by defendant no.1 Bank in every proceeding. In paragraph no. 12 of the plaint, the plaintiffs have asserted that no legal and valid mortgage of any nature whatsoever or any security is created in favour of -: 6 :- defendant no.1 as against the rights of said HUF of which these plaintiffs are members. In paragraph 15 of the plaint specific averment is made alleging that defendant no.1 has played a systematic fraud so as to pressurize the plaintiffs to succumb to the malafide intentions of defendant no.1 for enjoying the wrongful gains that in law defendant no.1 is not entitled. As merits of these averments cannot be gone into at this stage, the averments made in the plaint will have to be accepted as it is. These averments in plaint, in my view, bring the plaintiffs’ case within the ambit of exceptions carved out by the Apex Court in paragraph no. 51 of Mardia Chemicals case (supra) . Therefore, I do not find any merit in the contention of the learned counsel for defendant no.1 that the civil Court has no jurisdiction to deal with plaint in the present suit. In the circumstances, chamber summons is dismissed. 11. It is expressedly made clear that the above observations made in this order are prima facie and tentative in nature and made for the limited purpose of disposal of present chamber summons. The court trying the suit shall decide the suit independently on its own merits without being influenced in any manner by the observations made in this order. (R. V. MORE, J.)