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TMI Blog2005 (9) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law involved in both the appeals are common and, hence, they are heard together and disposed of by this common judgment. 3. The brief facts leading to these appeals are that, UCO Bank has given loan by mortgaging some properties. Since default was committed by the borrowers in the matter of repayment, the Bank approached the Debts Recovery Tribunal and steps had been taken to sell the mortgaged properties in public auction. At that juncture, the plaintiffs filed the suits for partition of the joint family properties, which also includes the properties mortgaged to the Bank, and obtained status quo order. In those circumstances, the Bank filed I.A. No. II under order 7, rule 11( d ) of the CPC requesting to reject the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties, who filed the suit must be a party to the liabilities created in favour of the secured creditor; (2)the disputes between the parties could be resolved under the provisions of the Act itself; (3) that if the claim made by the parties is outside the jurisdiction of the Debts Recovery Tribunal or the Appellate Tribunal or any action taken or to be taken under this Act and also under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the dispute raised by the parties cannot be adjudicated by any of the Tribunal or authority, created under the Act or under any other Act, the right of the parties to approach the Civil Court for appropriate relief cannot be deprived and taken away. 31. Admittedly, in our case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icals Ltd. v. Union of India [2004] 4 SCC 311 1 , wherein the constitutional validity of the provisions of the Act has been upheld except section 17(2) thereof. He further submits that under section 13 of the Act, notwithstanding anything contained in sections 69 and 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor can be enforced by the Banker and Financial Institution. He also submits that plaintiffs have no right to claim partition of the properties as all the properties are not joint family properties and that the partners of the firm have mortgaged the properties to the Bank towards the loan amount borrowed by them as collateral security and, therefore, the plaintiffs have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o above. Of course, the said decision is rendered prior to Mardia Chemicals Ltd. s case ( supra ). The Supreme Court has upheld the constitutional validity of the provisions of the Act, at paragraph 51 in the above referred case, it is held that jurisdiction of the Civil Court also can be invoked for limited purposes. While the Bank can enforce its security interest for realisation of its amount, right of the plaintiffs to claim partition in the suit schedule properties if they prove they are ancestral joint family properties cannot be deprived of as contended by the Bank, which contention was erroneously accepted by the Trial Court. For adjudication of such claim, the Bar under section 34 of the Act shall not come in the way. 8. For ..... X X X X Extracts X X X X X X X X Extracts X X X X
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