( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 246 OF 2007 Branch Manager, Nagar Urban Co-op. Bank & ors... Applicants Versus Prabhuling s/o. Sadashiv Jiresal and ors. .. Respondents Shri N.V. Gaware, Advocate for the applicants. Shri V.S. Bedre, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 08.10.2009 P.C. :- 1. This is a Civil Revision Application filed by original defendant No.2 to 4, being aggrieved by order passed by the Jt. Civil Judge, Junior Division, Pathardi, below Exh. 1, in Regular Civil Suit No. 228 of 2005 on 06.09.2007, whereby it was held while answering preliminary issue that the Civil Court has jurisdiction to try the suit. ( 2 ) 2. Briefly stated facts giving rise to this revision application may be stated as below :- . Present revision applicants are office bearers of Nagar Urban Co-operative, Ahmednagar. It is case of said revision applicants that the bank had given loan of Rs. 10 lakhs to respondent No.2 Popatlal Prithviraj Bhandari and thereafter since loan was not repaid, it had issued notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "Securitisation Act" for brevity). Thereafter, the bank was to take further steps. In the meantime respondent No.1 Prabhuling Jiresal filed suit bearing Regular Civil Suit No. 228 of 2005 alleging that he is owner of the property. Respondent No.2 - original borrower has no concern whatsoever with the suit property and inspite of that by playing fraud, on 28.08.1996 he had obtained sale-deed from one Chandraprabhabai and Subhadrabai. In-fact, both Chandraprabhabai and Subhadrabai had no title over the suit property and said issue was settled in Regular Civil Suit No. 210 of 1982 filed by Subhadrabai and Chandraprabhabai against present respondent No.1 Prabhuling ( 3 ) and one Pagabai. The suit was decided on 27.07.1989 and the suit for declaration of title and possession was dismissed. Regular Civil Appeal No. 565 of 1989 filed by said Subhadrabai and Chandraprabhabai bearing Regular Civil Appeal No. 565 of 1989 was dismissed by the III Additional District Judge, Ahmednagar on 21.09.2001. Thus, even though Subhadrabai and Chandraprabhabai had no title, right and interest, in the suit property, still respondent No.2 has obtained sale-deed from them in respect of the suit property and mortgaged the same to the bank. In the circumstances, the bank is not entitled to take step for taking possession for selling the property and thus recover loan amount advanced to respondent No.2, who is original defendant No.1. The reliefs claimed in the Regular Civil Suit No. 228 of 2005 filed in the Civil Court, Pathardi are for declaration that the suit property was owned and possessed by respondent No. 1/plaintiff; for perpetual injunction that on the basis of mortgage deed executed by respondent No.2 in favour of the appellants, they should not disturb the possession of respondent No.1/plaintiff or should not cause any obstruction to the possession by tenants of respondents. ( 4 ) 3. After the suit is filed, written statement is filed at Exh.44 and request was made for framing preliminary issue regarding jurisdiction. We find separate application to that effect. Accordingly, preliminary issue was framed and the issue "Whether this Court has jurisdiction to try this suit?" was framed and the learned Civil Judge, ultimately answered the issue in the affirmative. 4. Heard Adv. Shri N.V. Gaware, for the revision applicants and Adv. Shri V.S. Bedre for the respondents. They have taken me through various documents such as plaint, the sale-deed obtained by original defendant No.2, the sale- deed in favour of defendant No.1, the copy of decree passed in Special Civil Suit No. 210 of 1982 decided on 27.07.1989 and the copy of the judgment in Regular Civil Suit No. 565 of 1989 decided on 21.09.2009. 5. It is not disputed that the revision applicants had issued notice under Section 13 (2) of the Securitisation Act to respondent No.2, who was original defendant No.1. There is nothing on record to show that notice was replied. The learned advocates Shri Gaware and Shri Bedre have taken me ( 5 ) through various provisions of the Securitisation Act. Section 13 of the Securitisation Act is as follows:- “13. Enforcement of security interest – (1) Notwithstanding anything contained in section 69 or section 69-A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or tribunal, by such creditor in accordance with the provisions of this Act. (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any installment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice falling which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4). (3) The notice referred to in sub-section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower. (3-A)If, on receipt of notice under sub- section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or ( 6 ) objection to the borrower: Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17-A. (4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; (b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt. (c) appoint any person (hereinafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; (d) require at any time by notice in ( 7 ) writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.” 6. Section 17 (1) to (3) are as follows :- “17. Right to appeal. - (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application alongwith such fee, as may be prescribed, to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken: Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower. [Explanation – For the removal of doubts, it is hereby declared that the communication for the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub-section.] (2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to ( 8 ) the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the business to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in sub- section (4) of section 13 taken by the creditors assets as invalid and restore the possession of the secured assets to the borrower or restore the management of the business to the borrower, as the case may be, and pass such order as it may consider the appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13. 7. Section 34 is as follows :- “34. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). 8. Adv. Shri Gaware stated that as per Section 34, jurisdiction of the Civil Court is taken away from entertaining any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is ( 9 ) empowered to decide and no injunction shall be granted by any Court or other authority in respect of action taken or to be taken in pursuance of any power conferred by or under the Act. He emphasized the words “either action taken or to be taken in pursuance of any power conferred by or under the Act”. Thus, Adv. Shri Gaware argued that even though no steps were taken under Section 13 (4) of the Securitisation Act, once notice is given under Section 13 (2) of the Act, further action to be taken would be under Section 13 (4) by the secured creditors. 9. Adv. Shri Bedre mainly supported the line of arguments adopted by the Civil Court in paras 10 and 11 of its order. The Civil Court has observed that an appeal under Section 17 (1) of the Securitisation Act would lie only after some measures had been taken sub-section 4 of Section 13 and not before the stage of taking any such measure. In the case in hand admittedly though notice under-section 13 (2) of the Act has been sent by the defendant bank to the defendant no. 1, the bank has not taken any of the measure under sub- section 4 of Section 13 of the Securitisation Act. Therefore, at this stage an appeal under Section 17 (1) of ( 10 ) the Act cannot be preferred before the Debt Recovery Tribunal. The learned Civil Judge further observed that there is no total ouster of jurisdiction of the Civil Court. He also observed so far as the reliefs are concerned, the Debt Recovery Tribunal or the Appellate Tribunal is not empowered by the Act, still Civil Court retains jurisdiction. In the circumstances the Civil Court held that it has jurisdiction. 10. The learned advocate Shri Gaware relied upon observations made in para 50 of the Mardia Chemicals Ltd., and Ors., V/s. Union of India and Ors., 2004 (4) Bom.C.R.530. Para 50 is as follows :- “50. It has also been submitted that an appeal is entertainable before the Debt Recovery Tribunal only after such measures as provided in sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. Thus before any action or measure is taken under sub- section (4) of Section 13, it is submitted by Mr. Salve one of the counsel for respondents that there would be no bar to approach the civil court. Therefore, it cannot be said no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri Salve is not correct. A full reading of section 34 shows that ( 11 ) the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or appellate Tribunal is empowered to determine in respect of any action taken "or to be taken in pursuance of any power conferred under this Act". That is to say the prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus applies to all such matters which may be taken cognizance of by the Debt Recovery Tribunal, apart from those matters in which measures have already been taken under sub-section (4) of Section 13.” . It is abundantly clear from the observations of the Supreme Court that not only action already taken but to be taken in pursuance of powers conferred under the Securitisation Act are covered by the matter within jurisdiction of Debt Recovery Tribunal or the Appellate Tribunal and jurisdiction of Civil Court is excluded. At the end of para 50 it was specifically stated that the bar of Civil Court thus applies to all such matters which may be taken cognizance of by the Debts Recovery Tribunal, apart from those matters in which measures have already been taken ( 12 ) under sub-section (4) of section 13. 11. In para 80 their Lordships summarized the position of law and it is made clear from clause (5) that as discussed in the judgment, it will be open to maintain a civil suit in Civil Court, within the narrow scope and on the limited grounds on which that are permissible, in the matters relating an English mortgage enforceable without intervention of the Court. So what are excluded are only matters relating to English mortgage enforceable without intervention of the Court. 12. Adv. Shri Gaware also relied upon case of Single Bench of this Court in Kinnariben Shantilal Patel V/s. Rajmal Premchand Surana, 2009 (4) ALL M.R.48. After considering the authorities of the Supreme Court, this Court in para 14 has observed that the principles of exclusion of jurisdiction need not be obliterated and shelved. There is an express bar of jurisdiction of Court, as highlighted in the scheme of the Act itself. Aggrieved person has remedy before the Tribunal or Appellate Tribunal where the record could well be scanned and discussed. ( 13 ) 13. Adv. Shri Bedre referred to observations made in para 11 and 12 of the case of Mayar (H.K.) Ltd. & Ors., V/s. Owners & Parties, Vessel M.V. Fortune Express & Ors., AIR 2006 S.C.1828. Therein, it is observed that plaint cannot be rejected on the basis of allegations made by defendant in his written statement. The plaint disclosing cause of action requires determination by the Court. Mere fact that in opinion of Judge, plaintiff may not succeed cannot be ground to reject plaint. It was case under Order 7 Rule 11 of the Code of Civil Procedure. In this case, question that is raised is whether the Debt Recovery Tribunal or the Civil Court will have jurisdiction. I have already reproduced the reliefs claimed and the circumstances under which the reliefs are claimed. In my considered opinion, the Civil Court will not have jurisdiction. Respondent No.1/plaintiff ought to have approached the Debt Recovery Tribunal. 14. In the result, this Civil Revision Application is allowed. It is held that Civil Judge, Junior Division, Pathardi, has no jurisdiction to entertain the suit in view of specific bar under the provisions of the Securitisation ( 14 ) Act. In the circumstances, the plaint will have to be returned to the plaintiff for presenting before the appropriate forum, in view of discussions made above. . At this stage Adv. Shri V.S. Bedre for the respondents states that the plaintiff/respondent No.1 will approach the Debt Recovery Tribunal within a period of six weeks from today and till then the temporary injunction order passed by the Trial Court may be continued. After hearing both sides, it is directed that for a period of six weeks, the temporary injunction granted by the Trial Court shall continue. In the meantime respondent No.1/plaintiff may approach the Debt Recovery Tribunal and seek appropriate orders. [P.R. BORKAR,J.] snk/2009/SEP09/cra246.07