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TMI Blog2018 (12) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... nt needs to rejected. It is permissible for the Court to reject the entire plaint so far as the bank is concerned which is one of the defendants. The learned Single Judge was in an error in holding that the plaints against the bank were not barred under Section 34 of the Securitisation Act and consequently in rejecting the notices of motion and holding that the suits were not barred against the bank - impugned order set aside - notices of motion allowed. - APPEAL NO. 360 OF 2017 In NOTICE OF MOTION NO.1208 OF 2017 In SUIT NO.62 OF 2017 With APPEAL NO.361 OF 2017 In NOTICE OF MOTION NO.1207 OF 2017 In SUIT NO.60 OF 2017 With APPEAL NO. 362 OF 2017 And NOTICE OF MOTION NO.1206 OF 2017 - - - Dated:- 26-10-2018 - MR NARESH H. PATIL ACTING C.J. AND MR G.S. KULKARNI, J. SUIT NO.8 OF 2017 With COMMERCIAL APPEAL NO. 171 OF 2017 In COMM.NOTICE OF MOTION NO.323 OF 2017 In OMM.SUIT NO.192 OF 2017 With COMMERCIAL APPEAL NO. 172 OF 2017, COMM.NOTICE OF MOTION NO.377 OF 2017 And COMM.SUIT NO.450 OF 2017 For The Appellants : Mr. Rafique Dada, Senior Advocate with Mr.Karl Tamboly, Mr.Bhalchandra Palav, Ms.Shreya Jha i/b. Cyril Amarchand Mangaldas, Mr.Karl Tamboly with Mr.Bhalchandr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in each of the plaints are quite similar. The plaintiffs' prayers as made in the plaints, are primarily against Orbit namely the plaintiffs inter alia seeking specific performance of the alleged agreements entered with them by Orbit for sale of the suit flats. 6. In the year 2009 the bank had granted loan facilities to Orbit aggregating to a principal sum of ₹ 150 Crores. To secure the said lending Orbit by registered deed(s) of mortgage created security interest in favor of the bank in the said project (land and the building), in which flats were proposed to be sold to the plaintiffs. 7. The case of the bank is that in or around January, 2016, Orbit committed defaults in re-payment of the amounts advanced by the bank. Despite repeated reminders, Orbit failed and neglected to repay the interest and principal amount due under the credit facilities. A notice dated 3 August 2016 was addressed to Orbit, its guarantors and its mortgagors, recalling the credit facilities. Guarantees were also invoked and the guarantors were called upon to pay entire outstanding amounts due under the credit facilities. Despite these efforts, Orbit and its guarantors/ mortgagors failed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaints in these suits disclose that measures under section 13(4) Securitisation Act, were adopted by the bank, the bank stood impleaded as a defendant in these suits. 9. On the above backdrop, the bank being aggrieved by its impleadment as a defendant in the suit(s), moved notice of motions in question, in each of these suits, invoking the provision of Order VII Rule 11(d) of the CPC, inter alia contending that the suit(s) as instituted against the bank were barred under the provisions of Section 34 of the Securitisation Act and thus qua the bank the plaint was liable to be rejected. 10. The contention of the bank was of a statutory bar created by Section 34 of the Securitisation Act, for the Civil Court to entertain the suits against the bank. This principally for the reason that the project was a 'secured asset' within the meaning of section 2(1) (zc) of the Securitisation Act, in view of the registered equitable mortgage created in its favour, which would enable the bank to realize the dues/ debt payable to it by Orbit. The bank contended that the advances as made to Orbit were secured by a 'Registered Supplemental Indenture of Mortgage' dated 17th Septe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of the project property. It was contended that due diligence was not undertaken by the bank before extending the credit facilities. It was contended that once the rights were created by Orbit in favour of the plaintiffs, the project assets were not available to be mortgaged to the bank. The plaintiffs contended that the plaintiffs charge on the suit property was a prior charge to that of the bank's charge, which was required to be legally recognized. It was contended that there was collusion between the officers of the bank and Orbit in creating mortgage in respect of the project assets and thus the mortgage was bad and illegal and not binding on the plaintiffs. It was contended that it could not be overlooked that substantial amounts were paid by the plaintiff to Orbit and consequently the bank cannot deal with the suit property without due consideration to the rights created in favour of the plaintiffs. It was thus contended that the plaintiffs were entitled to a decree of specific performance of the agreement entered by them with Orbit and in these circumstances the bank was a necessary party to the suit. It was contended that the cause of action for the plaintiffs to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 34 of the Securitization Act is well settled in these decisions. It is submitted that in view of the mortgage of the project as created by Orbit in favour of the bank, the bank has superior rights, and if the plaintiffs contend that they have higher rights over the bank, then as a requirement of law, it was necessary for the plaintiffs to invoke the jurisdiction of the DRT under Section 17 of the Securitisation Act. It is then contended that the plaint is required to be read in its entirety as framed against the bank and on such reading of the plaint it is clearly revealed that the suit directly concerns the security rights of the bank qua the project and the measures which are adopted by the bank under the Securitization Act. It is submitted that entertaining such a suit against the bank, would be defeating the legislative intent of a remedy which being provided by Section 17 of the Securitisation Act. It is submitted that by clever drafting of the plaint the bar as created under section 34 of the Securitization Act cannot be defeated. It is submitted that the plaintiffs contention that a case of fraud has been alleged in the plaint against the bank is untenable as according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l court, frustrating its rights on the secured assets thereby causing a serious prejudice to the financial interest of the bank and the security rights created in the said assets in favour of the bank by the borrowers under registered. It is for these reasons that the provisions of Section 17 of Securitisation Act confers a right in any person to approach the DRT. Even the argument of due diligence not being complied by the bank, is misconceived, as there is no claim for damages against the bank. It is submitted that as there is no registered agreement entered into between the plaintiffs and Orbit as per the requirement of Sections 4 and 9 of the MOFA. Thus, MOFA was clearly not applicable. The protection under Section 9 of the MOFA would be available only when there is an agreement between the parties and the agreement is registered. It is submitted that in the present case the MOU was executed on a stamp paper of ₹ 100/- and the said agreement is neither registered nor stamp duty has been paid. It is next submitted that as clear from the recitals of the MOU, the plaintiffs were aware that the project is mortgaged by Orbit in favour of the Bank, however, despite such aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was disclosed, as clear from the contents of the MOU/ agreement entered by Orbit with some other purchasers. Reference in this regard is made to an agreement dated 31 July 2014 entered by Orbit with Mr. Bhaderesh Mehta and Mrs. Heena Mehta, whereas in the case of the present plaintiff, there was no agreement sought by the plaintiffs from the builder much less any agreement as per the requirement of law/MOFA, requiring registration and payment of stamp duty. It is submitted that there is not a single letter from the plaintiff demanding an agreement from Orbit, which according to the learned Senior Counsel is very peculiar and would speak volumes in regard to the genuineness of the purported flat purchase transaction between the plaintiffs and the Orbit. It is submitted that a plain reading of the plaint would, in fact, creates an impression that the amount which was paid by the plaintiffs to Orbit was not in respect of the transaction for purchase of flats but was a money lending transaction. It is submitted that the suit was instituted on 17 December 2016. It is submitted that the first payment is stated to be made by the plaintiffs in the year 2009 and thus for a period of eight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Registration Act, 1908 and to be in the prescribed form. It is contended that when the mandate of the provision requires that a written agreement should be entered into and registered on receiving not more than 20% of the sale price of the consideration, and when in the present case no such agreement being entered by Orbit and more particularly after eight long years the suit being filed, takes the matter beyond a pale of doubt, that it is not an agreement for purchase of a flat. The provisions of MOFA thus can never be invoked by the plaintiff is the contention on behalf of the bank. Further referring to Section 9 of the MOFA it is contended that this provision is specific which provides that no promoter after he executes an agreement to sell any flat, mortgage or create a charge on the flat or the land , without the previous consent of the persons who take or agree to take the flats, and if any such mortgage or charge is made or created without such previous consent 'after the agreement referred to in Section 4 is registered', it shall not affect the right and interest of such persons. It is thus contended that in the absence of a registered agreement between Orbit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan [2007] 4 SCC 343; (iv) Ranganayakamma v. K.S. Prakash [2008] 15 SCC 673; (v) Authorised Officer, Kotak Mahindra Bank Ltd. v. Brahmo Construction (P.) Ltd. 2015 (3) ABR 783; (vi) KS. Dhondy v. Her Majesty The Queen of Netherlands 2013 (4) Mn. LJ 64; (vii) Church of Christ Charitable Trust Educational Charitable Society v. Ponniamman Educational Trust [2012] 8 SCC 706; (viii) Hiralal Parbhudas v. Ganesh Trading Co. AIR 1984 Bom 218; (ix) National Chemicals Colour Co. v. Reckitt Colman of India Ltd. AIR 1991 Bom 76. Submissions in Appeal No.361 of 2017 17. Mr. Dhakephalkar, learned Senior Counsel appearing for the bank has made the following submissions:- (I) It is submitted that Axis Bank is not a party to the agreement entered between the plaintiffs and Orbit and only by virtue of clever drafting a case is sought to be made out against the bank. Our attention is drawn to prayer clause in the plaint (in Commercial Suit No.60 of 2017). It is submitted that the real prayer is to prevent the bank from proceeding under the Securitisation Act. It is submitted that such a relief against the bank only ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule (11) (d) of the Code of Civil Procedure 1908 is a discretionary order and the learned single Judge has appropriately exercised the discretion in rejecting notices of motions, filed by the bank. It is submitted that the appellate Court would interfere in the impugned order only, when it would come to a conclusion that the view taken by the learned single Judge is not a possible, probable or a plausible view even, if it could not be an absolutely correct view. The view taken by the learned single Judge is a probable and a plausible view and thus the appeals, need not be entertained. To support this proposition reliance is place on the decision of the Supreme Court in the case of Wander Ltd. (supra). On merits, it is submitted that it was not necessary for the plaintiffs to have a registered agreement as contemplated by the provisions of MOFA Act. It is enough that there was some agreement between the parties and that money was paid as a consideration for purchase of flats. The plaintiffs having paid large amounts to Orbit Corporation for purchase of flats in respect of which allotment letters were issued and/or MOU executed, the plaintiff would nonetheless have appropriate prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have a prior charge and hence there was a requirement of due diligence, before loan was advanced by the bank to Orbit Corporation. It is submitted that there is no material to accept the submission as advanced on behalf of the bank that the plaintiffs are mere investors and not genuine flat purchasers. Referring to section 56 (b) of the Transfer of Property Act, 1882, section 8 of the MOFA Act, it is next submitted that the plaintiffs could have approached DRT under section 17 of the Securitisation Act only if possession of the flats was to be with the plaintiffs and not otherwise, as section 34 of the Securitisation Act would recognize only possessory rights. It is submitted that contribution of the plaintiff and other flat purchasers towards construction of the building was about ₹ 83 crores of rupees and thus, there was not only a legitimate expectation of Orbit completing the project but also of putting the plaintiff in possession of the respective flats which were being sold to the plaintiff. Considering all these circumstances, the remedy of approaching the DRT was not an appropriate remedy, and suit as filed against the bank was maintainable. It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (O.7 R.11 (d)and fraud.Para 15 on Order 7 R.11.Para 22 on fraud 8 to 13), (xi) Harshal Developers (P.) Ltd. v. Manohar Gopal Bavdekar 2013 (1) Mh.L.J. 855 (Sec.4A over rides section 4 of MOFA. Para 8 to 13.) 22. In support of the submissions Mr. Sarosh Bharucha, learned counsel for the respondents, has placed reliance on the decisions in Dwarka Prasad Singh v. Harikant Prasad Singh [1973] 1 SCC 179, Rajanala Kusuma Kumari v. State of Telangana [2018] 96 taxmann.com 281 (AP), Ramniklal Tulsidas Kotak v. Varsha Builders 1993 Mh.L.J. 323, Kasiser Oils (P.) Ltd. v. Allahabad Bank MANU/WB/0713/2017, Preamble. Maha Ownership Flats Act, 1963, Vishal N. Kalsaria v. Bank of India [2016] 65 taxmann.com 280/134 SCL 268 (SC), Sejal Glass Ltd. v. Navilan Merchants (P.) Ltd. [Civil Appeal No. 10802 of 2017. Discussion and Conclusion 23. We have heard learned counsel for the parties. We have perused the record of these appeals and the impugned order. 24. We first deal with the submission as urged on behalf of the plaintiffs that these appeals do not require interference as the impugned order passed by the learned single judge exercising jurisdiction under the Order 7 Rule 11 (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is mandatory and no discretion is left with the Court, as can be seen from the following observations in paragraph 10:- 10. Order VII Rule 11(d) authorizes a Court to reject a plaint, where the suit appears from the statements made in the plaint to be barred by any law. In order to invoke Order VII Rule 11(d) of the Code, the Court must restrict its scrutiny only to the averments made in the plaint and at that stage, it cannot take into consideration the defence of the defendant nor can it seek assistance of any evidence from the parties. If it appears from the averments made in the plaint itself that the Court cannot entertain the suit because of any bar created by law, the Court is left with no other alternative but to reject the plaint by taking recourse to Rule 11(d). In other words, at the time of invoking the jurisdiction under Order VII Rule 11(d) of the Code, the Court shall presume all statements made in the plaint to be true and even if on that basis, it appears that the suit is barred by any law for the time being in force, the plaint shall be rejected. The provision is mandatory and no discretion is left with the Court. (emphasis supplied) 27. In this cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uth and also in view of the uncontroverted evidence of actual deception perpetrated and confusion caused. 28. Similar view was taken by the Division Bench in National Chemicals Colour Co.'s case (supra). 29. The plaintiffs reliance on the decision in Wander Ltd.'s case (supra) to support the contention that an order passed by the Civil Court on an application under Order 7 Rule 11(a) is a discretionary order, is not well founded. In Wander Ltd.'s case (supra) the issue which fell for consideration of the Court arose from an injunction order which was reversed by the Division Bench of the High Court. It is in this context, the Court made the observations in paragraph 14 of the judgment, that if the discretion was exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken different view may not justify interference with the trial court's exercise of discretion. These observations in paragraph 14 were made by the court in the light of the principles referred by Mr. Justice Gajendragadkar in Printers (Mysore) (P.) Ltd. v. Pothan Joseph AIR 1960 SC 1156 which was also a case of the Court considering dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to find out the real cause of action. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint nor is it permissible to cull out a sentence or a passage and to read it out of the context in isolation. The pleading needs to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. No other pleading can be taken into consideration. The law in this regard is well-settled. [See Sopan Sukhdeo Sable's case (supra)]. The real object of Order 7 Rule 11 of the Code is to keep out of Courts irresponsible law suits. [See Popat Kotecha Property's case (supra)] 33. It is not in dispute that the project assets have been mortgaged by Orbit in favour of the bank. The bank as a mortgagee thus has legal rights as conferred under section 13 of the Securitization Act to realize its dues, on a default by Orbit and its guarantors, in repayment of the money so advanced. The bank has already resorted to enforce these legal rights by issuing a notice under section 13 (2) and subsequently, taking measures under section 13(4) of the Securitization Act. It is sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable 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 the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or an 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 Debts 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 a 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 Debts Recovery Tribunal, apart from those matters in which measures have already been taken under sub-section (4) of section 13. 51. However, to a very limited extent jurisdiction of the civil court can als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s when tested on the anvil of the provisions of Order VI Rule 4 of the CPC. I. Commercial Appeal No.360 of 2017 arising from Suit No.62 of 2017 (Madhav Prasad Agarwal anr v. Axis Bank Ltd) 36. We set out the facts in some detail as the other plaints have somewhat similar factual matrix. 37. This appeal arises from the impugned order to the extent it deals with the plaintiffs case in Suit No.62 of 2017. The plaintiffs in this suit are one Madhav Prasad Aggarwal and Mrs.Sushma Madhav Aggarwal. Orbit is defendant no 1 and the bank is defendant no.2. The case of the plaintiff is that in the year 2009 the plaintiffs were looking out for suitable luxurious spacious accommodation in the vicinity of Nepean Sea Road. Having received knowledge that Orbit has launched a project namely 'Orbit Heaven' at Nepean Sea Road, the plaintiffs approached the directors of Orbit. The plaintiffs exhibited their interest to purchase a duplex apartment on the 16th and 17th floor consisting of five bedrooms of an area approximately of 7608 sq.ft. and carpet area of 4169 sq.ft. and a terrace area of approximately 2487 sq.ft. alongwith six car parking spaces at total price of ₹ 38. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent of the bank shall, do so, on its own risk and any such dealing shall not in any manner alter/affect the rights of the mortgagee bank over the said property. The plaintiffs by their letter dated 19 September 2016 replied to the said notice and recorded the facts, of the sale of one of the flats to the plaintiffs and payments made to Orbit in that regard. The bank replied by its letter dated 4 October 2016 interalia stating that the letter of allotment cannot be considered as sufficient document of any ownership right over the mortgaged property. The plaintiffs thereafter noticed that on 7 November 2016 a possession notice was affixed on the project site interalia announcing that the bank had taken possession of the said project under Section 13(4) of the Securitisation. 39. On the assertion that the said flat was sold to the plaintiffs by Orbit and accordingly rights are created in favour of the plaintiffs, the suit in question was filed interalia contending that the Orbit had agreed to sell the premises under the provisions of MOFA, and the actions of Orbit and the bank were contrary to the provisions of MOFA. The plaintiffs contended that Orbit ought to have mortgaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for relief of a declaration that there is valid and subsisting agreement for sale of the flats in favour of the plaintiffs and a further prayer for specific performance of the agreement and in the event the relief of specific performance cannot be granted, then, for a money decree and damages. The only relief as prayed against the bank can be found in prayer clause (b) namely that in case, the prayer for specific performance is allowed, the bank be directed to confirm the sale of the suit premises in favour of the plaintiffs. Prayer clause (b) reads thus:- (b) That the Defendant No.1 may be ordered and directed to specifically perform the said Agreement and to do all such acts, deeds, things and matters and such other matters as per the Plaintiffs' Agreement and sign, execute and register the Agreement for sale in respect of suit duplex flat described in Exhibit A hereto as required under the provision of Maharashtra Ownership Flat Act and to execute documents, papers, letters, writings, affidavits and undertakings etc. as may be necessary to and in favour of the Plaintiffs and the Defendant No.2 may be directed to confirm the sale of the said premises to the Plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,00,00,000/- on or about in March 2014 and at that time also the defendant no.1 kept the plaintiff in dark about the creation of the mortgage in favour of the 2nd defendant. Even thereafter also the defendant no.1 demanded from the plaintiff further part payment towards the said purchase price and accordingly the plaintiff paid an aggregate sum of ₹ 25,00,000/- in the month of September 2014 to the defendant no.1. The plaintiff states that the defendant no.1 has violated rules and regulations of the Maharashtra Ownership Flats Act. The 1st defendant being promoter ought not to have mortgaged the said project without written consent of the plaintiff. 23. The plaintiff submits that the mortgage created in favour of 2nd defendant is subject to the plaintiffs rights in the said premises. The plaintiff states that the defendant no.2 has advanced the loan and has taken the said property as charge with the knowledge of the plaintiffs rights in the said premises. It is obvious that prior to advancing loan of such a huge amount the defendant no.2 ought to have carried out due diligence and ought to have ascertained the rights of the 1st defendant and ought to have acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff agreed to purchase flat no.2302 and 2402 at a total consideration of ₹ 12,45,00,000/- and as part consideration had made a payment of ₹ 9,23,50,000/- to Orbit. The plaintiffs' averments in relation to the information received by the plaintiff, that the bank is taking measures under the Securitisation Act are similar to the one pleaded in the other plaints and as noted by us in the foregoing paragraphs. Orbit had issued allotment/confirmation letter dated 16.11.2009 agreeing to sell the said flats to the plaintiff for a modified consideration of ₹ 17,34,00,000/- for flat no.2302 and 2402. On 15.3.2015 an amount of ₹ 3,21,00,000/- had remained due and payable by the plaintiff to M/s Orbit Corporation. The plaint recites the amount paid by various other defendants who are similarly situated. As to what is the relevance in impleading other flat purchasers as defendants is not known. The averments as made against the bank (defendant no.15) are found in paragraphs 16, 17, 18, 19, 24 (a) (b) and (c) and in paragraph 28 inserted by amendment which read thus : 16. Meanwhile the plaintiff and other flat owners learnt that defendant no.15 have issued a pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money from various purchasers who have booked flats in Orbit Haven. To the knowledge of the plaintiff, it seems that even public notice was issued by defendant no.15 before advancing loan to the defendant no.1. It is common to the knowledge of everybody that the moment the building construction start, people book the flat to take advantage of reduced price and save themselves from escalation in prices. It is also evident and common that an individual applies for loan from the bank though due diligence search is carried out by the bank whereas in the present case to the plaintiffs knowledge, no such due diligence search at all has been carried out by defendant no. 15 before advancing money as is claimed by defendant no.15. In any event, the mortgage in favour of defendant no.15 is with the rights and obligations created by defendant no.1 in favour of the plaintiff which is also protected by law. . 24. The plaintiff and Defendants no.2 to 14 have put in their hard earned money with a hope to get flats in the building Orbit Haven and at the relevant time, the flat was booked and allotted to them there was no mortgage of any nature whatsoever by Defendant No.1 and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asers. Thus the mortgage and the loan obviously appears to be fraudulently and in collusion and in connivance between Defendant No.1 and Defendant No.15. 24(c) Without prejudice to the aforesaid and in alternative, it is submitted that the Defendant No.15 by claiming to be mortgagee and permitting the Defendant No.1 to develop and construct the said property subsequent thereto have assumed character of a promoter as defined under Maharashtra Ownership Flat Act and is equally bound and liable to perform all the obligations of the provisions of Maharashtra Ownership Flats Act and are accordingly bound and liable to perform delivery of possession of the respective premises free from all encumbrances and to perform all other obligation towards the flat purchasers being Plaintiff and Defendants Nos.2 to 14. The purported mortgage is even otherwise contrary to Registration Act and Stamp Act and is enforceable in law. . 28. In any event, the Defendant No.1 have issued allotment letters/booking letters and receipts from time to time when the respective flat purchasers booked their flats. The plaintiff states that all the said payment receipts show the contractual o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30th and 31st floor. The premises being allotted to Mr.Ratan Jindal consisted of five bed rooms admeasuring 7344 sq.feet with six car parking spaces. Mr.Ratan Jindal in the year 2009-10 made substantial payments amounting to ₹ 20,75,75,000/- in respect of the said premises being more than 65% of the total agreed consideration for the said premises. Later on in 2014, Mr.Ratan Jindal decided to acquire the said premises through the family owned company of the plaintiff wherein Mr.Ratan Jindal was himself a Director. Accordingly, the plaintiff on 30.5.2014 is stated to have paid a further amount of ₹ 2 crores to Orbit for the said premises and further amount of ₹ 27,22,00,000/- was paid between the period 30.5.2014 to 14.7.2014 in respect of which a consolidated receipt dated 9.7.2014 was issued by Orbit. A separate receipt was issued in favour of the plaintiff for ₹ 2 crores paid on 30.5.2014. Thus, the total consideration of ₹ 29,2,79,00,000/- was paid by plaintiff to Orbit which included an amount of ₹ 1,02,79,000/- as service tax and ₹ 78,00,000/- as TDS. Thereafter, a Memorandum of Understanding (MOU) dated 5.9.2014 was entered into be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject under section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Copy of the said possession notice is exhibited with the present suit as Exhibit 'H'. 16. It is a matter of common parlance and understanding that before granting any loan facility, as was granted to defendant no.1 banks of repute such as defendant no.2, conduct a detailed title search/due diligence on properties intended to be mortgaged as security for such loan, however, it is apparent that nothing of this sort had been done while the aforesaid loan had been granted to the defendant no.1 by the defendant no.2 17. It is apprehended by the plaintiff company that certain employees of defendant no.2 bank are hand in glove with the representatives of defendant no.1 organisation and the said loan has been granted by the defendant no.2 bank for illegal and unlawful gains without any proper scrutiny or title search/due diligence. 22. No monetary compensation shall be adequate in lieu of the specific performance of the said MOU. It is further submitted that the defendant no.1 and defendant no.2 are hand in gloves and they are in connivan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y steps so as to specifically perform its obligations under the allotment letter including but not limited to completing construction of the project and handing over possession of the suit property to the plaintiff free from all encumbrances whatsoever. The plaintiff is also entitled to an order directing the defendant nos.1 and 3 to 5 to jointly and/or severally comply with all the obligations, under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and the Real Estate (Regulation and Development Act 2016 including but not limited to (i) the execution of the necessary agreement in terms thereof (ii) completing the project (iii) to deliver vacant and peaceful possession of the suit property to the plaintiff and(iv) to give clear and marketable title in respect of the suit property free from all encumbrances whatsoever. The plaintiff is also entitled to an order directing the defendant o.1 to indemnify the plaintiff in respect of all claims, charges that may be made by anybody in respect of the suit property and keep the same indemnified till registration of the necessary agreements and conveyance of land in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the obligations, under the Maharashtra Ownership of Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and the Real Estate (Regulation and Development) Act 2016including but not limited to (i) the execution of the necessary agreement in terms thereof (ii) completing the project (iii) to deliver vacant and peaceful possession of the suit property to the plaintiff and (iv) to give clear and marketable title. 48. In the light of the averments/statements as made in the plaint and the prayers as noted by us above, we now examine as to whether the plaint can be said to be barred by the provisions of Section 34 of the Securitisation Act as contended on behalf of the appellant- bank. 49. It is well settled that the jurisdiction of the Court to try suits of civil nature is expressive as seen from the clear language of Section 9 of the Code of Civil Procedure which is on the principle of Ubi Jus Ibi Remedium. The exception being suits of which their cognizance is either expressly or impliedly barred. For these category of suits the Civil Court would lack jurisdiction to entertain and try such suits. It is further well settled that the exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n bank and the plaintiffs. The privity of the bank was only qua Orbit in view of the mortgage of the project assets in favour of the bank by Orbit as a security of the loan advanced by it. The bank was merely realising the security interest in the assets mortgaged to it by Orbit. To appreciate the contention of the bank it would be appropriate to extract some of the provisions of the Securitisation Act, relevant to the present controversy. Following are the provisions:- Section 2 (zf) security interest means right, title and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specified in section 31; (f) borrower means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted by any bank or financial institution and includes a person who becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es referred to in sub section (4) of section 13 taken by the secured creditor as invalid; and (b) restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under Sub-section 1, as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force , the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section l3 to recover his secured debt. [(4-A) Whether - (i) any person, in an application under sub-section (1), claims any tenancy or lease hold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a receiver and such security interest would be enforced in accordance with the provisions of Secrutisation Act. 52. In Mardia Chemicals Ltd.'s case (supra), the Supreme Court was considering the challenge to the legality of the provisions of Sections 13, 15, 17 and Section 34 of the Securitisation Act. The Court examined the provisions of Section 34 which bars jurisdiction of the Civil Court to entertain any suit or proceedings, in respect of any matter which a Debt Recovery Tribunal or the appellate Tribunal is empowered under the Secrutisation Act to determine, in respect of any action taken or to be taken, in pursuance of any power conferred by or under the Secrutisation Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The Court also examined the provisions of Section 35 of the Secrutisation Act, which provides for the Act to have an overriding effect all other laws, and as to why and in what circumstances it was thought necessary by the legislature to provide for a non-obstante clause in sub-section (1) of Section 13 of the Secrutisation Act. It was observed that the situation as prevailed in 1882 when the Transfer of Property Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that to a very limited extent jurisdiction of the civil court can also be invoked, where the action of the secured creditor is alleged to be fraudulent or their 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. 53. As there was much discussion in this context from both the sides and more particularly paragraphs 50 and 51 of the decision in Mardia Chemicals Ltd.'s case (supra), it would be appropriate to note the observations as made by their Lordships which read thus:- 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of which relief is sought: 'Adams v. Scott, (1859) 7 WR 213, 249. I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Ghose, Rashbehary, Law of Mortgages, Vol.II, Fourth Edn., page 784). 54. In Mardia Chemicals Ltd.'s case (supra) Supreme Court has also held that the proceedings under Section 17 of the Securitisation Act in fact are not appellate proceedings and it seemed to be a misnomer. It was observed that it is the initial action which is brought before a forum as prescribed under the Securitisation Act, raising from the grievance against the action or measures taken by one of the parties to the contract. It is held that this is the stage of initial proceedings, like filing a suit in civil court and as a matter of fact the proceedings under Section 17 of the Securitisation Act are in lieu of a civil suit, which remedy is ordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of NPA Act is also important for preservation of the value of the assets of the banks/FIs. Quick recovery of debt is important. It is the object of DRT Act as well as NPA Act. But under NPA Act, authority is given to the banks/FIs, which is not there in the DRT Act, to assign the secured interest to securitisation company/asset reconstruction company. In cases where the borrower has bought an asset with the finance of the bank/FI, the latter is treated as a lender and on assignment the securitisation company/asset reconstruction company steps into the shoes of the lender bank/FI and it can recover the lent amounts from the borrower. 56. Adverting to the above position in law and the provisions of the Securitisation Act, we now discuss whether the suits in question can be said to be maintainable against the bank ? It is not in dispute that the substantial amounts were advanced by the bank to Orbit. It is stated that the liability of the Orbit towards Axis Bank is more than ₹ 150 crores (i.e. term loan of ₹ 85 crores, OD facilities of 130 crores and OD facilities of ₹ 35 crores). These amounts as advanced are secured in favour of the Axis bank by a registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bonafide purchase transaction of a flat and more so, when the flat in question is so valuable the price of which runs into several crores of rupees, ranging between ₹ 18 crores to ₹ 38 crores. 58. When it comes to purchase of flats and protection being conferred on the flat purchasers in the State, the provisions of MOFA are attracted which is an enactment to regulate promotion of construction, sale, management and transfer of flats on ownership basis. It is worthwhile to note the preamble of the Act so as to ascertain the intention of the legislature to have such an enactment. The preamble of the MOFA reads thus:- WHEREAS, It has been brought to the notice of the State Government that, consequent on the acute shortage of housing in the several areas of the State of Maharashtra, sundry abuses, malpractices and difficulties relating to the promotion of the construction of, and the sale and management and transfer of flats taken on ownership basis exist, and are increasing; AND WHEREAS, the Government in order to, advise itself as respects the manner of dealing with these matters appointed a committee by Government Resolution in the Urban Development and Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) [Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of flats all or some of which are to be taken or are taken on ownership basis, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than 20 per cent, of the sale price enter into a written agreement for sale with each of such persons who are to take or have taken such flats, and the agreement shall not be registered under 2 [the Registration Act, 1908 (hereinafter in this section referred to as the Registration Act )] 3[and such agreement shall be in the prescribed form.] 4[(1A) The agreement to be prescribed under sub-section (1) shall contain inter alias the particulars as specified in clause (a); and to such agreement there shall be attached the copies of the documents specified in clause (b) - (a) particulars - (i) if the building is to be constructed, the liability of the promoter to construct it according to the plans and specifications approved by the local authority where such approval is required under any law for the time being in force ; (ii) the date by which the possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns) Act, 1983, and such agreement was not presented for registration, or was presented for registration but its execution was not presented before the registration officer by the person concerned, before the commencement of the said Act, then such document may be presented at the proper registration office for registration. and its execution may be admitted, by any of the persons concerned referred to above in this sub-section, on or before the 31st December 1984, and the registering officer shall accept such document for registration, and register it under the Registration Act, as if it were presented and its execution was admitted, within the time laid down in the Registration Act: Provided further that, on presenting a document for registration as aforesaid if the person executing such document or his representative, assign or agent does not appear before the registering officer and admit the execution of the document, the registering officer shall cause a summons to be issued under section 36 of the Registration Act requiring the executants to appear at the registration office, either in person or by duly authorised agent, at a time fixed in the summons if the executant fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge on the land and the construction if any thereon in which the flat is or was to be constructed, to the extent of the amount due, but subject to any prior encumbrances. SECTION 9: NO MORTGAGE ETC., TO BE CREATED WITHOUT CONSENT OF PARTIES AFTER EXECUTION OF AGREEMENT FOR SALE - No promoter shall, after he execute an agreement to sell any fiat, mortgage or create a charge on the flat or the land, without the previous consent of the persons who take or agree to take the flats, and if any such mortgage or charge is made or created without such previous consent after the agreement referred to in section 4 is registered, it shall not affect the right and interest of such persons. 60. It view of the above object and intention of the legislation, the above provisions of the MOFA as referred during the course of arguments are required to be considered in their application to the given facts, inasmuch as the plaintiffs contend that the legislation provides for valuable rights referring to Section 4, 4A, Sections 5 and 9 of the MOFA. 61. We find it difficult to accept the said contention as urged on behalf of the plaintiffs that these provisions of the MOFA would in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer) (Amendment and Validating Provisions) Act, 1983 and which remains unregistered for any reason. It is only in such a situation notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, it may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1963 or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act,1882, or as evidence of any collateral transaction not required to be effected by registered instrument. We are afraid as to how the provisions of Section 4 and 4A , ex-facie, are of any avail to the plaintiffs. 64. Further Section 9 of the MOFA which provides that no mortgage etc. be created without consent of parties, after execution of agreement for sale, also can have no application in the facts of the present case. This for the reason that primarily there is no agreement for sale executed by Orbit in favour of the plaintiffs to sell any of these flats and when no such agreement to sale is executed, there was no embargo on Orbit not to mortgage the project to the bank and to recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that ground assert for impleadment of Axis bank as a defendant to the suit. 66. Further, even if the plaintiffs intend to rely on the provisions of Section 5 and 8 of the MOFA, these provisions are of no avail against the bank. The plaintiffs contention that in view of the specific provisions under Section 4 and 9 of the MOFA , the plaintiffs would have a prior charge on the project as mortgaged to the bank and thus the bank becomes a necessary party to the suit, is required to be stated only to be rejected. As noted above it is quite clear that the plaintiffs transaction to purchase the flat, if any, had become quite old inasmuch as the amounts were paid by the plaintiffs to Orbit in or about 2009 or sometime thereafter. However, the fact remains that only after the plaintiffs became aware of the bank enforcing its security interest by taking measures under Section 13 of the Securitisation Act in the year 2017, the plaintiffs woke up and instituted these suits. It is surprising that despite such large amount being advanced, no steps whatsoever were taken by the plaintiffs, to resort to any legal remedy against Orbit, prior to institution of this suit, which a bonafide flat pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the bank exercising rights under the Securitisation Act as a mortgagee of the project, the civil court would have no jurisdiction. Thus when the adjudication of the rights of the bank to create the mortgage is not within the scope and cannot be subject matter of the suit, the bank cannot become a necessary party to the suit merely on the relief of specific performance being sought by the plaintiff against Orbit. We are of the clear opinion that if the plaintiffs wish to assert their rights against the bank which has a security interest in the project as recognized by the Securitisation Act, then the only remedy for the plaintiffs was to take recourse under Section 17 of the Securitisation Act. 70. We thus see much substance in the contention as urged on behalf of the bank, that the averments as made in the plaint are sufficient to reach to a conclusion that the plaint as against the bank is barred by the provisions of Section 34 of the Securitisation Act. 71. We now consider whether the plaint(s) in any of these suits fall within the exceptions as carved out in paragraph 51 of the decision of the Supreme Court in Mardia Chemicals Ltd's case (supra), namely whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kept aside. The principles that particulars of fraud are required to be pleaded as per the requirements of Order VI Rule 4 of the CPC, the principles are succinctly elaborated in the decision of the Supreme Court in Ranganayakamma's case (supra). The Court held that when a fraud is alleged, the particulars thereof are required to be pleaded. The plea of fraud cannot be general in nature. It also cannot be vague. 74. Adverting to the above principles we do not find any substance in the contention of the plaintiffs that there is any case of fraud practised by the bank so that the plaints in these suits against the bank be sustained, on the exception as carved out in Mardia Chemicals Ltd's case (supra). Ex facie allegations of collusion/fraud which have been made in each of these plaints and as noted above, to say the least are so vague, weak and ambiguous, to hold that these averments can at all be considered to be averments of fraud as played by the bank against the plaintiffs. We thus see much substance in the contention as urged on behalf of the bank that by clever drafting and by making unsubstantiated allegations of fraud, the bank has been impleaded as a party defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect in their contention referring to Section 5(b) and 5(c) and Section 6 of the Banking Regulation Act 1949, that the business of the bank is primarily accepting for the purpose of lending or investment, deposits of money from the public, inter alia repayable on demand or otherwise and withdrawal of cheque, draft, order etc. The banking company as defined is a company which would transact business of banking, and thus, the plaintiffs cannot expect the bank to undertake the work of a 'promoter', in view of the specific definition of a promoter , as contained under Section 2(c) of the MOFA namely who constructs a building or flats and for the purpose of selling them to persons or co-operative society or association of persons, and thus the reliefs which the plaintiffs can seek against the promoters/Orbit cannot be availed against the bank in the civil suit in question. 78. As regards the plaintiffs contention that in view of Section 9 of the MOFA the plaintiffs would have prior rights to that of the bank qua the project as mortgaged to the Axis bank, also cannot be accepted as noted above. In fact by this plea the plaintiffs indirectly question the security interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest to recover the debts due and payable to it by adhering to the procedure as prescribed by law, namely under the Securitisation Act. In the facts of the present case it would definitely meet the ends of justice that the plaint against the bank although it is one of the defendant needs to rejected. It is permissible for the Court to reject the entire plaint so far as the bank is concerned which is one of the defendants. In Mst. Phool Sundari v. Gurbans Singh AIR 1957 Raj. 97 the Division Bench of Rajasthan High Court comprising 'Wanchoo C.J. Dave J.' had an occasion to consider the issue whether it is possible to reject the entire plaint in so far as one of the defendants is concerned and in such a situation, what would be a proper order under Order 7 Rule 11(a) or (d) of the Code of Civil Procedure. Chief Justice Wanchoo speaking for the Bench, taking review of law on the issue, in paragraphs 9 and 14 observed thus:- 9. We have given our earnest consideration to this matter and we do not see why where a plaint discloses no cause of action against some of the defendants it cannot be rejected against those defendants. We can understand that a plaint has to be reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was justified in ordering rejection of the plaint insofar as the first defendant (the appellant herein) is concerned ? And (b) Whether the Division Bench of the High Court was right in reversing the said decision? 29. Finally, the learned Senior Counsel for the respondent submitted that in view of a decision of this Court in Roop Lal Sathi v. Nachhatiar Singh Gill [(1982)3 SCC 487], rejection of the plaint in respect of one of the defendants is not sustainable. We have gone through the facts in that decision and the materials placed for rejection of plaint in the case on hand. We are satisfied that the principles of the said decision do not apply to the facts of the present case where the appellant-first defendant is not seeking rejection of the plaint in part. On the other hand, the first defendant has prayed for rejection of the plaint as a whole for the reason that it does not disclose a cause of action and not fulfilling the statutory provisions. In addition to the same, it is brought to our notice that this contention was not raised before the High Court and particularly in view of the factual details, the said decision is not applicable to the case in hand. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt Recovery Tribunal; whether transfer of a civil suit from the civil Court to Debt Recovery Tribunal could be tried as counterclaim. It is in this context the Court examined the provisions of Section 9 of CPC and the Recovery of Debts due to Banks and Financial Institutions Act,1993. The Court held that the civil court indisputedly would have jurisdiction to try a suit and if the suit is vexatious or otherwise not maintainable action can be taken in terms of the Code. The Court also considered the decision in Mardia Chemicals Ltd.'s case (supra) and the observations as made in the said decision that the jurisdiction of the civil court can be invoked in case of fraud and misrepresentation. The Court held that the High Court could not have transferred the suit from the civil court Ludhiana to the DRT, Mumbai. We are afraid as to how this decision would assist the plaintiffs, when the question in the present proceedings is completely distinct, namely whether the jurisdiction of the civil court is barred in view of Section 34 of the Securitisation Act, as a closer scrutiny of the plaints as framed against the bank indicates that the issue as set up in the plaint against the bank a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench has come to a conclusion that it was a case of mass illegalities, siphoning of moneys, fraud etc and such being the allegations in the plaint, it was held that the plaint could not be rejected against the appellant/defendant. However, such is not the case in these appeals before us. 87. The Division Bench of this Court in State Bank of India's case (supra) was considering an appeal against the dismissal of an application seeking rejection of the plaint under Order 7 Rule 11(d) of the CPC filed by the State Bank of India. The applicant-State Bank of India had contended that Section 34 of Securitisation Act created bar to the maintainability of the suit against the State Bank of India. The plaintiffs in the said case had raised a similar contention that there are no legal and valid mortgage in favour of the bank, nor any security created in favour of the bank as against rights of HUF of which plaintiffs were members. The Division Bench examining the provisions of Securitisation Act and the principles of law as laid down in Mardia Chemicals Ltd.'s case (supra), held that Securitisation Act provides a comprehensive scheme. It was held that the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act to determine. None of the grounds which are sought to be urged in the plaint fall outside the province and jurisdiction of the Debts Recovery Tribunal. Once we come to that conclusion, the necessary corollary is that recourse to proceedings in the form of a civil suit is barred by Section 34. . 21A. These observations of the Supreme Court emphasize that the exception which is carved out is a limited exception. Like all exceptions, this exception must be strictly construed. A borrower or a third party cannot be permitted to defeat or to render nugatory the provisions of the Act merely by a stray reference to an allegation of fraud or, as in the present case, by an averment in paragraph 15 of the plaint of a systematic fraud . The entirety of the plaint has to be construed. Essentially, in the present case, the averments in the plaint are that: (i) The HUF was a co-owner/tenant in common of the residential flat; (ii) The Bank has taken recourse to proceedings for recovery to which the HUF was not a party; (iii) The Plaintiffs had, in the course of the recovery proceedings, raised an objection before the Recovery Officer to the tenability of the action taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of Section 13 read with Section 34 of Securitisation Act. The Supreme Court examining the ambit of the provisions of Sections 17 and 34 of the Securitisation Act set aside the orders passed by the High Court holding that the measures taken under Section 13 of Securitisation Act dealt with the enforcement of the security interest without intervention of the Court and any person aggrieved by any such measures referred in sub-section (4) of Section 13 has statutory right to appeal to the Debt Recovery Tribunal under Section 17. It was held that Section 34 clearly bars jurisdiction of civil court to entertain any suit or proceedings in respect of any matter which the DRT or the appellate tribunal was empowered by or under Securitisation act to determine, and the expression in respect of any matter referred to in Section 34 would take within its ambit the measures provided under sub-section (4) of Section 13 of the Securitisation Act. It was held that any grievance against any measures taken by the borrower under sub-section (4) of Section 13 of the Securitisation Act a remedy is open to the aggrieved party to approach the DRT or the appellate tribunal and not th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the stated flat is the subject-matter of a registered sale deed executed by Respondents 5 and 6 (writ petitioners) in favour of Respondents 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting Respondents 5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. . 90. In the light of the above discussion, we are of the clear opinion that the learned Single Judge was in an error in holding that the plaints against the bank were not barred under Section 34 of the Securitisation Act and consequently in rejecting the notices of motion and holding that the suits were not barred against the bank. 91. We accordingly set aside the impugned order and allow the notices of motion as filed by the plaintiffs. Ordered accordingly. No costs. 92. Our observations are limited in the context of the issues arising before us un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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