9911796707
TMI Blog2024 (7) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... formulated - It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. In Santosh Hazari vs. PurushottamTiwari [ 2001 (2) TMI 131 - SUPREME COURT ], the Hon ble Supreme Court has held that ' To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.' The perusal of the aforesaid section shows that no civil court shall have any jurisdiction to entertain any suit or proceeding in respect of any matter, which the Debt Recovery Tribunal is empowered by or under SARFESI Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of plaint filed by the plaintiff. As per the applicants/defendants the non-applicant/plaintiff filed a suit for declaration and permanent prohibitory injunction against the action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act ) taken by the applicants/defendants. It was further averred that the plaint filed by the non-applicant/plaintiff is liable to be rejected under the provisions of Order VII, Rule 11(d) CPC, as the suit appears from the statement in the plaint to be barred by law. It was also averred that in the application that the question of rejection of the plaint has to be ascertained in accordance with the provisions of Order VII, Rule 11(d) of CPC, which provides the plaint shall be rejected, if the suit appears from the statement in the plaint to be barred by any law as Section 34 of SARFAESI Act bars the jurisdiction of the Civil Court to entertain any suit or proceedings in respect of any matter, which a Debt Recovery Tribunal or Appellate Tribunal is empowered. 2(b). As per the applicants/defendants, Section 17 of the SARFAESI Act, mandates that any person (including borrower) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said notice the NPA and recall amount are different from the earlier notice, dated 21.03.2022, i.e., 09.03.2022 is NPA date and recall amounts are Rs.41,34,2161/- and Rs.6,27,848.00/-. Thereafter, the non-applicant/plaintiff filed reply on 06.06.2022 for notice under Section 13(2) of SARFASI Act on email ID of the PNB Branch Sundernagar, and also to Circle Sastra Center at their email ID and on receiving the reply/objection under Section 13(3A) of SARFASI Act, by the applicants/defendants, it was obligatory for the applicants/defendants to communicate with the respondent within fifteen days from the receipt of the reply/objections by making rejoinder regarding tenability of the reply of the non-applicant/plaintiff, but despite resorting to this procedure, the applicants/defendants directly opted to proceed under Section 13(4) of the SARFASI Act. Lastly, dismissal of the application was prayed. 3. After hearing the learned counsel for the applicants/defendants and non-applicant/plaintiff, the learned Trial Court allowed the application and rejected the plaint of the plaintiff. 4. Feeling aggrieved and dissatisfied, the plaintiff approached the learned District Judge Mandi, by fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 8. In Govindaraju vs. Martamman, AIR 2005 SC 1008, the Hon ble Supreme Court explained the true purport and scope of section 100 of the CPC. The relevant portion of the aforesaid judgment reads as under: 11. A perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a Second Appeal without formulating the subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. The existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code. (Refer to Kshitish Chandra Purkait v. Santosh Kumar Purkait others (1997) 5 SCC 438); Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 413); Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722). 9. In Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, (2011) 1 SCC 673, the Hon ble Apex Court has held as under: 21. Similarly, in Satosh Hazari v. Purushottam Tiwari, a three-Judge Bench of this Court observed that: 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SARFAESI Act regarding the hypothecation of stocks and mortgage of the land and building comprised in Khata Khatauni No. 131 min/180 Khasra No. 705/595, measuring 00-18-18 bighas situated at Mohal Bahot/25, Tehsil Sundernagar, District Mandi, H.P., are based upon fraud with the consequential decree of a permanent prohibitory injunction for restraining the defendants from selling the stocks and the suit land or taking over the physical possession of the suit land. However, Section 34 of the SARFAESI Act bars the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act. At this stage, it would be apt to reproduce Section 34 of the SARFAESI Act, which reads as under: 34. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be granted by any court taken in pursuance of any power conferred by or under the SARFESI Act or under the Recovery of Debts Due to Banks and Financial Institutions Act. 17. The plaintiff had also sought the relief to restrain the defendants from selling the hypothecated stock or the mortgaged land. However, Section 13(4) of the SARFAESI Act empowers the secured creditor to take possession of the assets of the borrowers, including the right of transfer by way of lease, assignment or sale and to take over the management of the business of the borrowers and to appoint any person to manage the secured assets. At this stage, it would be relevant to reproduce Section 13(4) of the SARFAESI Act, which reads as under: 13. Enforcement of security interest.- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , like the one that has been done by the Petitioner in reply to the objection under Order VII, Rule 11 of the Civil Procedure Code, then the allegation of fraud has to be tested in terms of Order VI, Rule 4 of the Civil Procedure Code, which reads as under: 4. Particulars to be given where necessary. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. 16. Apart from making a bald statement of collusion between Defendant Nos. 1, 2 4 and the secured creditor, i.e., M/s. Phoenix A.R.C. Pvt. Ltd. there is nothing substantial as to how and as to what precise fraud has been committed. The only case of the Petitioner for creating a case of fraud is that the Petitioner s name was not registered as a member of the society and the reason for not registering the name of the Petitioner as a member of the society was that the society, i.e., defendant No. 3 was in collusion with the secured creditor as well as with the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
