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TMI Blog2015 (9) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (4) of Section 1 the RDB Act relates to the original jurisdiction of the Debts Recovery Tribunal to entertain an application of the banks or financial institutions for recovery of their dues from the borrowers under the said Act and by no means the said provisions can be construed to have any bearing on the jurisdiction conferred by the Act of 2002 to entertain an appeal under Section 17 of the said Act against any decision of the secured creditor under sub-section (4) of Section 13 of the Act of 2002. Section 35 of 2002 Act provides that the provisions of the said Act shall have overriding effect on any provision of any Act, which is inconsistent with the provisions of the said Act. The suit, filed by the opposite party no. 1 is not maintainable and the impugned decision of the learned court below rejecting the application under Order 7 Rule 11(d) of the Code cannot be sustained. - Decided in favor of appellant. - C.O. NO. 1590 OF 2015 - - - Dated:- 3-7-2015 - ASHIS KUMAR CHAKRABORTY, J. For The Appellant : Mr. Swarup Banerjee, Mr. H.C. Yadav, Mr. S.N. Mishra and Mr. Chandan Kumar Lal JUDGMENT This revisional application has been filed by State Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to demand from it any amount under sub-section (2) and 4(a) of Section 13 of the Act of 2012 and the defendant bank and its officers have no right to demand possession of the mortgaged property mentioned in the said notices under the Act of 2002 and consequential reliefs of permanent injunction. In support of his contention that the said suit filed by the opposite party no. 1/plaintiff is barred by law, Mr. Swarup Banerjee appearing for the petitioner bank submitted that in view of the provisions contained in Sections 17 and 34 of the Act of 2002, the actions taken by the petitioner bank in this case under the provisions of sub-section (2) and 4(a) of Section 13 of the Act of 2002 cannot be challenged in a suit before any Civil Court. Mr. Banerjee strenuously urged that in view of the provisions contained in Sections 34 and 35 of the Act of 2002 the civil court does not have the jurisdiction to entertain any suit or proceeding in respect of the dispute raised by the opposite party no. 1/plaintiff with regard to the notices issued by the petitioner bank under sub-section (2) and (4) of Section 13 of the Act of 2002 and the remedy of the opposite party no. 1/plaintiff lies in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 realizing 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 realizing 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 (hereafter 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 writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to determine in respect of any action taken or to be taken in pursuance of any power conferred under the Act of 2002. The Supreme Court held that the jurisdiction under Section 34 of the Act of 2002 covers even matters which can be taken cognizance of by the Debts Recovery Tribunal though no measure in that direction has so far been taken under Section (4) of Section 13 of the said Act. The Act of 2002 has created statutory interest in favour of the secured creditor on the secured assets and when the secured creditor proposes to proceed against the secured assets, sub-section (4) of Section 13 of the Act provides for various measures that can be taken by the secured creditor against the secured asset for recovery of its debt from the borrower. One of such measures provided by the statute is to take possession of the secured assets of the borrowers, including the right to transfer by way of lease, assignment or sale for realizing the secured assets and any person aggrieved by any of the measures referred to in sub-section (4) of Section 13 has the statutory right of appeal to the Debts Recovery Tribunal under Section 17 of the Act. In the case of Jagdish Singh (supra) cite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding one lakh rupees. However, Section 17 of the 2002 Act being a provision of a subsequent special statute confers the appellate jurisdiction on the Debts Recovery Tribunal to decide an application of any person aggrieved by any measure adopted by the secured creditor under sub-section (4) of Section 13 of the Act of 2002. Sub-section (4) of Section 1 the RDB Act relates to the original jurisdiction of the Debts Recovery Tribunal to entertain an application of the banks or financial institutions for recovery of their dues from the borrowers under the said Act and by no means the said provisions can be construed to have any bearing on the jurisdiction conferred by the Act of 2002 to entertain an appeal under Section 17 of the said Act against any decision of the secured creditor under sub-section (4) of Section 13 of the Act of 2002. Section 35 of 2002 Act provides that the provisions of the said Act shall have overriding effect on any provision of any Act, which is inconsistent with the provisions of the said Act. For all the aforesaid reasons, I have no hesitation to hold that the suit, filed by the opposite party no. 1 is not maintainable and the impugned decision of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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