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TMI Blog2010 (4) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... Deopujari for the Respondent. JUDGMENT This revision application is preferred by original defendant-Punjab National Bank challenging order dated 31st October, 2006 passed by learned District Judge, Chandrapur setting aside order dated 15th October, 2005 passed below Exh.13 by learned 2nd Jt. Civil Judge Senior Division, Chandrapur below Exh.13 dismissing the suit, i.e., Regular CiVil Suit No.142/2005, filed by the plaintiff. The appellate court has directed the trial court to restore the suit and to proceed further as per law, to decide the same on merits. 2. Such of the facts as are necessary to decide the controversy are stated below. The applicant is the original defendant and respondent is original plaintiff. The parties shall hereinafter referred to according to their original status as the 'plaintiff and the 'defendant'. The plaintiff filed Regular Civil Suit No. 142/2005 claiming relief of injunction, restraining the defendant and its officers permanently from taking over the possession of Janata Plastic Industries, Ballarpur till the decision of the suit. The plaintiff alleged that he is the proprietor of Janata Plastic Industries and has obtained the financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any material on record. The averments of fraud made in the plaint, are totally vague and unspecific. The plaintiff is provided adequate remedy under the provisions of the Act, before the DRT and further an appeal before the appellate Tribunal, which can consider such question and the jurisdiction of the civil court is barred. 5. On Regular Civil Appeal No. 250/2005 being preferred by respondent/plaintiff, the same was allowed by the learned Ad hoc District Judge by his judgment and order dated 31st October, 2006. It has been held that there are specific allegations made in the plaint regarding fraud and the civil court has jurisdiction to entertain the said suit and the DRT has no jurisdiction under section 17 of the Act, to decide the question of fraud in the transaction. It is held that the jurisdiction of the civil court depends upon averments made in the plaint and it does not depend upon the defence taken in the written statement. The averments made in the plaint regarding fraudulent claim can be gone into by the civil court and the jurisdiction of the civil court is not ousted. The appeal is allowed. The judgment and order dated 15th October, 2005 passed below Exh.13 by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the averments made in the plaint, it is apparent that the plaintiff is coming before the civil court by filing Regular Civil Suit No. 142/2005, in the capacity as borrower of the defendant-bank. The plaintiff has admitted that he has availed the financial assistance of Rs. 4,91,622 by way of term loan and Rs. 2,50,000 by way of cash credit facility from the defendant-bank. The dispute is only in respect of quantum of the amount outstanding against the plaintiff. The defendant-bank has alleged in notice dated 20th December, 2001, issued under section 13(2) of the Act to the plaintiff that the outstanding dues are of Rs. 7,46,721, which has been denied by plaintiff. The plaintiff has alleged that he has paid Rs. 5,00,000 and has requested the defendant-bank to provide him rehabilitation scheme, so that he can repay the loan amount. He alleges that he has never intended to avoid repayment. Thus, the fact that the plaintiff is the borrower and also a defaulter, has to be accepted. 9. The plaintiff has filed Regular Civil Suit No. 142/2005 immediately upon the receipt of notice under section 13(2) of the Act calling upon the plaintiff to repay the outstanding amount of Rs. 7, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through it may kindly be permanently restrained from taking over the possession of Janata Plastic Industries, Ballarpur till decision of the suit. (b) Any other relief which is just and proper in the circumstances of the case." Thus, the dispute with which, the plaintiff is coming before the civil court, is about the security interest created in favour of the defendant-bank, in respect of immovable property belonging to the father of the plaintiff. The cause of action for giving rise to such dispute is shown to be the notice under section 13(2) of the said Act and, hence, relief of permanent injunction, as prayed for is claimed. 10. The first contention of Shri Deopujari, the learned counsel for the plaintiff, is that the civil suit is maintainable as the plaintiff is coming before the civil court immediately after issue of notice under section 13(2) of the Act and before taking any of measure, as contemplated by section 13(4) of the Act. It is his contention that such a situation cannot be dealt with under section 17 of the Act and, hence, the jurisdiction of civil court is not barred. In my opinion, the point urged, is no more res integra and it has been dealt with i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Relying upon the allegations of fraud as pleaded in para 8 of the plaint reproduced above, Shri Deopujari has urged that the action of the defendant-bank is fraudulent and, hence, such action can be assailed only before the civil court. For this purpose, the observation of the Apex Court in para 51 of the Mardia Chemical's case have been relied upon by Shri Deopujari and the same are, therefore, reproduced below. '51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognised in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well as appearing for the Union of India, namely, V Narasimhachariar, AIR at pp. 141 and 144, a judgment of the learned Single Judge where it is observed as follows in para 22 (AIR p.143) : "22. The remedies of a mort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff has filed a suit for simplicitor permanent injunction, restraining the defendant-bank or its officers from taking over the possession of Janata Plastic Industries, Ballarsha till decision of the suit. The entire relief claimed is already reproduced. Except this, there is no other relief claimed in the suit. In this respect, section 13(1) of the Act, which is relevant, is reproduced below : "13. Enforcement of security interest. - (1) Notwithstanding anything contained in section 69 or section 69A 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." The bank has initiated action as contemplated by provisions section 13(2) of the Act, to enforce the security interest created in favour of the defendant-bank, by the plaintiff. Hence, the defendant-bank, under section 13(1) of the Act is entitled to enforce its security interest, as a matter of right in accordance with section 13 of the Act that too, without intervention of the court or tribunal. The issuance of notice under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff, is barred under section 34 of the said Act. Anyway the suit as framed is barred by law as contemplated under order VII, rule 11( d ) of the Code of Civil Procedure, 1908 ('the Code') and, hence, the plaint is liable to be rejected. The trial court was right in its view. 14. Mr. Deopujari, the learned counsel for the respondent, relied upon Division Bench of this court in M.R. Gawai Enterprises v. Vidarbha Urban Cooperative Bank Ltd. [2005] 64 CLA 160 /[2005] 1 Bom. CR 276 to urge that if the objection, pursuant to the notice under section 13(2) of the Act, is raised then such objection has to be considered with due application of mind by the bank, a secured creditor and the reasons for not accepting the objection must be communicated to the borrower. It was the case where the objection taken pursuant to notice under section 13(2) was not considered and notice under section 13(4) of the said Act was issued. This court quashed and set aside the notices under section 13(4) on the ground that the objection, pursuant to notice under section 13(2) of the said Act has not been decided. The question of bar to the jurisdiction of the civil court to entertain, try and decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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