9911796707
TMI Blog2022 (6) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainable notwithstanding the provisions of Section 34 of SARFAESI Act. The upshot of the position of law crystallized by the judgments of the Apex Court is that any person aggrieved against any measures under the provisions of the SARFAESI Act is entitled to approach the Debt Recovery Tribunal or Appellate Tribunal, and Civil Court has no jurisdiction to entertain such matters. SARFAESI Act overrides other laws in terms of Section 35; if they are inconsistent with the provisions of the Act, which takes relief is sweep Section 9 as well. It is not in dispute that in the present case, respondent no.5 has proceeded against secured assets of the borrower, i.e. respondent no.1. Thus, the learned trial Court was justified in rejecting the application for a temporary injunction against the respondent no.5-secured creditor. Tthe Civil Court could not have granted an injunction restraining the secured creditor from enforcing measures under Section 13 of the SARFAESI Act. Therefore, there are no merits in the appeal - The appeal is dismissed. - AMIT B. BORKAR J. Shri S.S. Ghate and Shri A.K. Choube, Advocates for the appellant Shri V.K. Kolte, Advocate for the respondent no.5 JUDGMENT : 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate for the appellant, submitted that in view of the judgment of this Court in the case of Bank of Baroda Vs. Gopal Shriram Panda and others Civil Revision Application No.29/2011 suit for partition challenging the action of a secured creditor is maintainable since only Civil Court has jurisdiction to decide the suit for partition. He relied on judgment in the case of Mohan Lal Anr. Vs. Dwarka Prasad Ors. AIR 2007 Raj 129 to urge that Civil Court has jurisdiction to entertain a suit restraining the secured creditor from proceeding with other measures under SARFAESI Act. He also relied on the judgment in the case of The Authorised Officer Vs. Nandini rendered by the High Court of Madras to urge that the Civil Court has jurisdiction to entertain the suit for partition, particularly when the said suit is filed by neither guarantor nor borrower. The Advocate for the appellant, in support of his submission, relied on Indian Bank Vs. ABS Marine Products (P) Ltd. (2006) 5 SCC 72 Padma Ashok Bhatt Vs. Orbit Corporation Ltd. Ors. 2017(6)Mh.L.J. 102, Tajunissa Anr. Vs. Vishal Sharma Ors CS(OS) 262/2019 (Delhi High Court) and Frontline Corporation Ltd. Vs. Punjab and Shind Bank 2018(1) Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntertain any matter, wherein the subject matter of the suit is less than Rs.10 lakh. 17. In the aforestated circumstances, one will have to make an effort to harmonize both the statutory provisions. According to Section 17 of the Act, any person who is aggrieved by any of the actions taken under Section 13 of the Act can approach the Tribunal under the provisions of the DRT Act. 18. In normal circumstances, there cannot be any action of any authority which cannot be challenged before a Civil Court unless there is a statutory bar with regard to challenging such an action. Section 34 specifically provides the bar of jurisdiction and therefore, the order passed under Section 13 of the Act could not have been challenged by respondent no.1 debtor before any Civil Court. 19. In the afore stated circumstances, the only remedy available to respondent no.1 debtor can be to approach the Tribunal under the provisions of the DRT Act read with the provisions of the Act. But, one would feel that as per Section 1(4) of the DRT Act, provisions of the DRT Act would not apply where the amount of debt is less than Rs.10 lakh. 9. In the case Jagdish Singh vs Heeralal Ors 2014(1) SCC 479 the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st in respect of the secured assets. 10. The Apex Court in the case of M/S. Sree Anandhakumar Mills Ltd. vs M/s. Indian Overseas Bank and Ors 2019(14) SCC 788 was considering the legality of the order passed by the High Court of Madras holding civil suit for partition and injunction maintainable notwithstanding the provisions of Section 34 of SARFAESI Act. The Apex Court by holding that suit for partition not maintainable observed in paragraph 4, which reads thus: 4. The matter need not engage the Court in any great detail as in view of the law laid down by this Court in Jagdish Singh vs. Heeralal and others1 it would clear and evident that the suit filed by the second respondent (i.e. O.S. No.106 of 2009) is not maintainable. In Jagdish Singh (supra) this Court after an elaborate consideration of the provisions of the SARFAESI Act, particularly, Section 2(zf), 2(zc), 13(1), 17, 18 and 34, took the view, on almost similar facts, that a suit for partition would not be maintainable in a situation where proceedings under the SARFAESI Act had been initiated. It was also held that the remedy of any person aggrieved by the initiation of proceedings under the SARFAESI Act lies under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep Section 9 as well. It is not in dispute that in the present case, respondent no.5 has proceeded against secured assets of the borrower, i.e. respondent no.1. I am, therefore, of the considered view that the learned trial Court was justified in rejecting the application for a temporary injunction against the respondent no.5-secured creditor. 12. Insofar as the judgment in the case of Indian Bank(supra) relied on the appellant is concerned, the issue involved was regarding the maintainability of the suit by a borrower against the bank was for recovery of damages against the bank, not for non-payment of sanctioned loan. In the facts of said case, the Apex Court held that the borrower's suit was independent, and the borrower could not be compelled to make his claim against the bank by counterclaim. Therefore, the said judgment does not apply to the facts of the present case. 13. In the next judgment in the case of Bank of Baroda (supra), this Court was concerned with the maintainability of the suit of partition in civil Court. The Division Bench held that the jurisdiction of the Civil Court to decide all matters of civil nature but excluding those to be tried by the Debt Recover ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
