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TMI Blog2021 (8) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... ported Assignment Agreement between the 1st and 2nd Defendants dated 30th June 2018 is bad, invalid, illegal void ab initio and of no legal effect or consequence against the Plaintiff, whatsoever, and for a consequential PERMANENT INJUNCTION restraining the Defendants 1 and 2 from acting or, implementing or in any manner taking any action against the Plaintiff on the basis of the Assignment Agreement dated 30.06.2018; b) A DECLARATION that the 1st Defendant and the 2nd Defendant do not have the right to retain the title deeds of the Plaintiff detailed in Schedule B hereto and a consequential direction to the 1st Defendant to return to the Plaintiff the Specific Movable Property, namely the deeds of title more fully described in the Schedule B hereto; c) Direct the Defendants to bear the costs of this suit." 3. By the judgment and order impugned dated September 30, 2019, passed while considering the plaintiff's prayer for leave under Clause 12 of the Letters Patent, 1865, the trial court observed that the suit had to be regarded as a suit for land and, since no part of such land was within the original jurisdiction of this court, the suit could not be instituted here. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to include a decree, in view of the distinct meanings ascribed to them in the Code. However, the appellate provisions cannot also be reasonably read to imply that it precludes any appeal being preferred against a decree. There is a clear lacuna, if Section 13 of the Act of 2015 is read literally, since even sub-section (2) restricts what judgment or order would be appellable, as it precludes appeals that are "otherwise than in accordance with the provisions of this Act." 7. At the same time, Section 2(2) of the Code defines a "decree" and Section 96 thereof permits an appeal from every original decree, except when passed with consent. 8. If only to give Section 13 of the Act of 2015 its proper meaning in the context of the statute, the objects that the Act professes to achieve and the purpose of providing for an appeal in any statute, an appeal from a decree has to be seen to be permitted by Section 13 in both situations covered by sub-sections (1) and (1A) by enlarging the meaning of the expression "judgment or order" in either sub-section, in the context, to include a decree. This would be the only meaningful way of reading the provision and of giving meaning to the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revocation of leave on the ground that the suit had no nexus with the Original Side of this court or also on the ground of forum non conveniens. 13. As to the claim of the plaintiff here being incapable of being lodged in this court, Original Side Courts are slow in raising the bogey, unless the suit appears ex facie to be barred by law. Ordinarily, Original Side Courts leave the objection on the ground of the suit being barred by law to be taken by a defendant before an adjudication in such regard is made. But a court cannot be faulted for being vigilant and not entertaining a suit which the law prohibits. When it is perceived that a law prohibits the institution of a suit before a civil court or the receipt thereof by the civil court, the prohibition must be express or by unavoidable necessary implication and the civil court will not take its jurisdiction to be ousted lightly, particularly since jurisdiction is an obligation and not a privilege. When a court has due authority to adjudicate on a matter, it is obliged to undertake such activity and cannot shirk its responsibility in such regard. Equally, when a law prohibits a certain kind of action to be carried to a civil court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction with the third defendant in favour of the first defendant asset reconstruction company. The claim in the plaint is that since the second defendant had unconditionally issued a no-dues certificate to the third defendant and acknowledged that the debt due from the third defendant stood discharged, the second defendant did not have any right or claim in respect of its transaction with the third defendant to assign to the first defendant. In such circumstances, the plaint contends that the first defendant is not entitled to take recourse to the provisions of the Act of 2002 against the plaintiff pertaining to the credit facilities granted by the second defendant to the third defendant. The reliefs claimed, as set out above, include a declaration that the deed of assignment executed by the second defendant in favour of the first defendant is invalid, with the consequential injunction. The further relief sought is a declaration that the first and second defendants have no right to retain the title-deeds pertaining to the property mortgaged by the plaintiff with the second defendant, with the consequential direction for return of the property and the title-deeds. 17. For a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be taken by the assignee, the plaintiff may be accused of delay. 19. The plaintiff first refers to a judgment reported at (2004) 4 SCC 311 (Mardia Chemicals Limited v. Union of India) for the recognition therein, inter alia, at paragraph 51 of the report that "to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever ..." 20. The plaintiff places a Division Bench judgment of this court reported at AIR 1955 Mad 491 (A. Batcha Saheb v. Nariman K. Irani) for the same proposition. 21. Two further judgments, one of the Andhra Pradesh High Court reported at (2016) 6 ALT 533 (D. Ram Reddy v. Asset Reconstruction Company (India) Pvt. Ltd) and another of the Bombay High Court reported at 2021 SCC OnLine Bom 466 (Bank of Baroda v. Gopal Shriram Panda) have also been cited, as such judgments rely on the exception to the rule as recognised in Mardia Chemicals Limited to hold that in a very restricted field, a civil suit may lie. 22. The plaintiff has also brought a Division Bench judgment of the Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uence of the first defendant having invoked the provisions of the Act of 2002, the bar under the first limb of Section 34 has come into effect. Whether or not any part of the plaintiff's cause of action arose within the territorial limits of the Original Side of this court, by virtue of the statutory bar in Section 34 of the Act of 2002, the suit can no longer be entertained as the invocation of the Act of 2002 by the first defendant empowers the jurisdictional DRT to determine the inter se rights between the plaintiff and the first defendant. And, no injunction may be granted by any court in respect of any action taken or to be taken by the first defendant in pursuance of any power conferred by or under the Act of 2002. If no injunction can be issued, the relief for declaration becomes meaningless. As of today, the suit can no longer be received in this court. 26. A further submission of the plaintiff is that no DRT or DRAT may have the authority to direct the return of the title-deeds pertaining to the mortgaged property and, as such, the suit ought to have been entertained as the other reliefs claimed are incidental to the primary relief for return of the title-deeds pertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the debt on any of the various grounds that may be available. It is incumbent on the jurisdictional DRT to deal with the matter and, technically, it may be said that upon the DRT coming to a conclusion that the secured creditor had no debt to pursue or that the person who had taken measures under Section 13(4) of the Act of 2002 did not qualify to take recourse to the provisions of such statute, it would lose further authority over the matter. Such a finding would stop the relevant creditor in its tracks and not permit such creditor to proceed any further. But it is possible that the measures taken by the creditor would require to be undone. It cannot be said, in such a scenario, that since the DRT had held that the so-called creditor could not have invoked the provisions of the Act of 2002, the DRT would lose all jurisdiction over the matter. It would opposed to public policy to view Section 17 of the Act of 2002 in such narrow light that it would not permit the wrong done to a person aggrieved who has approached the forum to be adequately remedied. There may be the odd situation where the limited authority of the DRT or the DRAT may not be effective to remedy the wrong; but Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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