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TMI Blog2004 (3) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... gage in favour of Salem Fairlands House Building Society for availing house building loan. Siddhaiyan died intestate and, therefore, the first plaintiff and the 2nd defendant are the surviving coparceners of the suit properties. The 2nd plaintiff and the first defendant, who are daughter and wife of the deceased, Siddhaiyan are also entitled to their respective shares in the suit properties. While so, the 3rd defendant, viz., M/s. Lakshmi Vilas Bank Limited claimed that they are the creditors of the defendants 1 and 2 and they have mortgaged the item (1) of the suit properties and compelled the plaintiffs to vacate from the said item, but, they have not succeeded. In the said circumstances, the plaintiffs have also prayed for permanent injunction against them. 4. The plaintiffs have also moved an application for grant of injunction against the 3rd defendant in I.A. No. 769 of 2002. 5. The 2nd respondent/defendant filed a counter denying the various allegations made by the plaintiff in their affidavit and stated that he is always prepared to partition the joint family properties and also to settle the real dues to the 3rd defendant. 6. The 3rd respondent/defendant, M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Tribunal as set forth under section 19 of the Act and the action commenced by the 3rd defendant to bring the property for sale without the intervention of the Court is not proper. 10. The learned Advocate for the revision petitioners would further contend that the bar under section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act ) is not a total prohibition of the Civil Court s jurisdiction and the provisions of section 34 has got to be read with section 9 of C.P.C. and if it is done so, it cannot be held that there is a total bar to entertain a suit by the Civil Court. 11. Now, the question arises for consideration of this Court is, whether the suit filed by the plaintiffs/revision petitioners is barred under section 34 of the Act, as contended by the 3rd respondent ? 12. The suit filed by the plaintiffs is one for partition and separate possession and allotment of their shares in the suit properties. The defendants 1 and 2 admit the share of the plaintiffs in the suit properties. As such, the defendants 1 and 2 do not have any independent right in the suit properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the bar of Civil Court s jurisdiction as stated in section 34 of the Act, which states, "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)." 17. The words "No Civil Court" used in section 34 of the Act is wider in its meaning and likewise any suit or proceedings also has got wider meaning, thereby, this section creates a taboo or embargo on filing any suit or proceeding before any Civil Court in respect of any matter which this Debts Recovery Tribunal or Appellate Tribunal is empowered by or under this Act. This section also clearly prohibits that 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, including the action under the Recovery of Debts Due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the submissions made by the learned advocate for the revision petitioners, they say that the powers conferred to the secured creditors under section 34 of the Act and also under section 13, are not imposing a total bar, event though the said enactment is a special enactment. 22. The learned advocate for the revision petitioners has relied upon the following judgments. 23. A case arose between Somasundaram v. Liyakat Ali 1997 (1) C.T.C. 4, in respect of inter se seniority of employees under the Tamil Nadu Co-operative Societies Act, 1983 and in the said Act also, there is a bar under section 156 to bring out a civil suit. It was argued in the said case that the civil suit was not maintainable, by pointing out section 156 of the Tamil Nadu Co-operative Societies Act, 1983, which states, " Bar of jurisdiction of Civil Courts : Notwithstanding anything contained in any other law for the time being in force nor order or award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator the registrar or an officer authorized or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Act will not bar the suit claim there to restrain the defendants from interfering with the right of the plaintiffs to be in management of the suit trust as joint hereditary trustees of the temple, which hereditary trusteeship has already been declared" and the learned judge also relied upon the case of Sri Thulukka Choodamani Mariamman Temple v. Subramanian Pandaram , 1986 (99) L.W. 606, wherein (Venkataswamy, J., as he then was) has held "The claim of the plaintiffs will not fall under section 63 and the offerings being in the nature of appeasing the God through the medium of Poojari and that too originally on special occasions, which in course of time came to be a regular event, but, not on daily basis, this Court has to uphold the claim of the poojaries that they are entitled to the offering of padi arisi which will not come within the purview of section 63 of the Act", After following several other judgments, this Court came to the conclusion that the suit for declaration that the plaintiffs are entitled to receive padi arisi and for consequential relief of mandatory injunction and permanent injunction is maintainable. 25. Easwaramoorthy Velar v. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply; Case law discussed." (p. 78) After considering several decisions, the Court ultimately came to the conclusion that the Civil Court s jurisdiction is not barred and the right of redemption through Court is not taken away under the Act. 26. A case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, the trial Court came to the conclusion that in view of section 34 of the Act, the Civil Court has no jurisdiction and the same is challenged before this Court. 27. A case arose under the Arbitration and Conciliation Act, 1996 for consideration of the Apex Court in Sukanya Holdings P. Ltd. v. Jayesh H. Pandya 2003 (2) CTC 431. In that case, Section 8 of the Arbitration and Conciliation Act, 1996 was considered, which says, "(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement, shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof and (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." It was stated that there is no other provision in the Act that in a pending suit, the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to be taken by the authority concerned. Though prior to the filing of the suit, the plaintiff was having permission from the Pollution Control Board to use Crusher, admittedly, on the date of the suit, he was not having any order from the Board. In such circumstances, as rightly contended by the learned counsel for the respondent, the plaintiff has to approach the Civil Court to vindicate his grievance, if any, relating to air pollution. Ultimately, this Court held that though there is a bar under section 46 of the Air (Prevention and Control of Pollution) Act, 1981, in the light of the lanugage used in the said section, and that the plaintiff has not challenged any order or proceedings of the Pollution Control Board or authority constituted under the Act, the suit as instituted by the plaintiff is maintainable." 29. A case also arose under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and section 29 of the Income-tax (Certificate Proceedings) Rules, 1962 in A. Stephen Samule, Proprietor, Industrial Security Agency v. Union of India 2003 (3) CTC 95: 2003 (2) M.L.J. 220 : 2004 (1) L.W. 523, wherein, power of Recovery Officer to direct eviction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession in occupancy of judgment debtor and also taking into consideration the judgment of Apex Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal 1997 (3) SCC 694 and Tanzeem-E-Sufia v. Bibi Haliman 2002 (4) CTC 179 held,- "9. The tenants are not defaulters to the Bank. They do not claim to be in possession of the properties under a title created by the judgment-debtor subsequent to the attachment of the properties by the Recovery Officer, nor do they claim that they entered into possession subsequent to the Recovery Certificate issued by the Recovery Officer. There is no doubt that the appellant/tenants are the lawful tenants of the defaulter to the bank even before the initiation of the proceedings by the Bank against the defaulter. Therefore, when the property was in the occupation of tenants at the time when it was sold, the auction purchaser would be entitled to symbolical possession of such property, but he would not be entitled to claim that the tenants should be directed to hand over actual possession of the respective portions of the property in their possession. In our view, it is impermissible for the auction purchaser to get actual possession of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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