9911796707
TMI Blog2021 (11) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant herein - original plaintiff stood as guarantor. A mortgage was created by the appellant herein - original plaintiff in favour of defendant No.2 - respondent No.2 herein - financial creditor over its factory land at Evalur, Tamil Nadu along with plant and machinery, by way of deposit of title deeds in terms of the declaration to secure the repayment, discharge and redemption by original defendant No.3. That original defendant No.3 - corporate debtor could not pay the loan amount, therefore the proceedings under the Insolvency Bankruptcy Code, 2016 (IBC) was initiated against the corporate debtor. An application under Section 7 of the IBC was filed by the State Bank of India against original defendant No.3 - corporate debtor. The default amount was INR 923,75,00,000/. The resolution process was initiated and an interim resolution professional was appointed under the provisions of IBC. A resolution plan came to be approved by the Committee of Creditors under Section 30(4) of the IBC. The learned Adjudicating Authority vide order dated 17.04.2018 approved the resolution plan. Under the approved resolution plan an amount of INR 241,71,84,839.18 was required to be paid an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 30.06.2018 was null, void ab initio and without any basis." 2.2 That thereafter on the basis of the assignment agreement dated 30.06.2018, the assignee - original defendant No.1 - respondent No.1 herein initiated the proceedings against the plaintiff - appellant herein, who stood as guarantor, under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) by issuing a notice dated 27.12.2018, demanding the payment of INR 587,10,08,309 due under the rupee term loan agreement dated 26.07.2011. Notice dated 27.12.2018 of the SARFAESI Act was responded by the plaintiff - appellant herein vide reply dated 20.02.2019 stating that pursuant to repayment of amount in terms of the approved resolution plan, all the claims of financial creditor 5 respondent No.2 herein stand extinguished and consequently, no claim can be made by the assignee respondent No.1 herein for the same default and that no amount is due and payable to assignee respondent No.1. That thereafter a possession notice dated 19.06.2019 was issued under rule 8 (1) of the Security Interest (Enforcement) Rules, 2002 by the assignee to the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. 3. Feeling aggrieved and dissatisfied with the order passed by the learned Single Judge of the High Court dismissing the application as well as the suit vide order dated 30.09.2019, appellant herein - original plaintiff filed an appeal before the Division Bench of the High Court being O.S.A. No.292 of 2019. By the impugned judgment and order the Division Bench of the High Court has dismissed the said appeal in view of the bar under Section 34 of the SARFAESI Act. 4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court confirming the judgment and order passed by the learned Single Judge rejecting the plaint/dismissing the suit as not maintainable in view of the bar under Section 34 of the SARFAESI Act, original plaintiff - appellant herein has preferred the present appeal. 5. Dr. A.M. Singhvi, learned Senior Advocate has appeared on behalf of the appellant and Shri Shyam Divan, learned Senior Advocate has appeared with Shri Huzefa Ahmadi, learned Senior Advocate, on behalf of the respondents - defendants. 5.1 Dr. Singhvi, learned Senior Advocate appearing on behalf of the plaintiff appellant herein has veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons stated above and therefore the initiation of the proceedings under the SARFAESI Act are bad in law and not maintainable. 5.7 In the alternative, it is prayed by Dr. Singhvi, learned Senior Advocate appearing on behalf of the appellant that in case this Court is not inclined to entertain the present appeal, confirming the judgment and order passed by the High Court rejecting the plaint/dismissing the suit, in that case the original plaintiff - appellant may be given an opportunity to file the proceedings before the DRT under the SARFAESI Act and all the contentions including that assignment agreement is null and void; that assignee cannot be said to be the secured creditor under the assignment agreement dated 30.06.2018; and that there are no dues so far as the appellant - plaintiff is concerned may be kept open. He has stated that in that case the appellant shall file appropriate proceedings before the DRT within a period of two weeks from today. 6. Present appeal is vehemently opposed by Shri Shyam Divan, learned Senior Advocate and Shri Huzefa Ahmadi, learned Senior Advocate, appearing on behalf of the contesting defendants - original defendants - respondents herein. 6.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment deed, no actual material particulars have been given with regard to the 'fraud'. It is submitted that the pleadings in para 31 and para 46 do not satisfy the test of 'fraud' under Section 17 of the Indian Contract Act, 1872. 6.7 It is vehemently submitted by the learned Senior Advocates appearing on behalf of the respondents herein that as per the settled preposition of law pleading without any material particulars would not tantamount to a pleading of 'fraud'. Reliance is placed on the decisions of this Court in the cases of Bishundeo Narain & Anr. vs. Seogeni Rai & Jagernath, (1951) SCR 548; Ladli Parshad Jaiswal vs. The Karnal Distillery Co. Ltd., Karnal &Ors.,(1964) 1 SCR 270; Canara Bank vs. P. Selathal & Ors.,(2020) 13 SCC 143; H.S Goutham vs. Rama Murthy & Anr.,(2021) 5 SCC 241; Ram Singh vs. Gram Panchayat Mehal Kalan & Ors.,(1986) 4 SCC 364; and Union of India & Anr. vs. K.C Sharma & Company & Ors.,(2020) 15 SCC 209. 6.8 Making the above submissions and relying upon the decisions of this Court in aforesaid cases, it is prayed to dismiss the present appeal. 7. We have heard the learned senior counsel appearing on behalf of the respective parties at length. 7.1 It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (64 IA 146), it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in the case of K.C Sharma & Company (Supra) it is held that 'fraud' has to be pleaded with necessary particulars. In the case of Ram Singh and Ors. (Supra), it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation. 7.4 In the case of T. Arivandandam vs. T.V. Satyapal & Anr. (1977) 4 SCC 467, it is observed and held in para 5 as under: " 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h can be challenged by the plaintiff - appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We are of the firm opinion that the suit filed by the plaintiff - appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act. 9. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. However, it will be open for the appellant herein to initiate appropriate proceedings before the DRT under Section 17 of the SARFAESI Act against the initiation of the proceedings by the assignee - respondent No.1 herein under Section 13 of the SARFAESI Act inter alia on the ground: (1) that the assignee cannot be said to be secured creditor so far as the appellant is concerned; (2) that there is no amount due and payable by the plaintiff - appellant herein on the ground that in view of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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