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2006 DIGILAW 4526 (PNJ)

State Bank of India v. Karanvir

2006-12-15

HEMANT GUPTA

body2006
JUDGMENT Hemant Gupra, J. - The challenge in the present revision petition is to the order passed by the learned trial Court on 22.9.2005 whereby the petitioner- bank was restrained from dispossessing the plaintiffs from the suit property as well as the order in appeal affirming the said order. 2. On Kalawanti executed equitable mortgage in favour of the bank in the year 2000-01. Since the principal borrower i.e. Ram Lal Pawan Kumar Rice Mills failed to make payment of the dues of the bank, a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security and Interest Act, 2002 (hereinafter to be referred as "the Act") was issued on 20.11.2003. Since no objection was filed after the issuance of the notice, another notice under Section 13(4) of the Act was issued and thereafter the bank has taken possession of the secured assets. Notices were issued to Smt. Kalawanti deceased through her legal heirs. 3. The plaintiff-respondents, grandsons of Kalawanti filed the present suit for declaration and injunction restraining the petitioner-bank from taking over possession of the suit property on the basis of their title derived through the judgment and decree dated 12.1.1995 allegedly suffered by Smt. Kalawanti in their favour. Both the Courts below have granted injunction in favour of the plaintiff-respondents. 4. The rights of the plaintiffs are derived through a consent decree dated 12.1.1995. Admittedly, it is Kalawanti who has executed equitable mortgage in favour of the bank after the decree dated 12.1.1995 was suffered by Kalawanti in favour of the plaintiffs. Smt. Kalawanti has not disclosed the said judgment and decree to the bank. The said judgment and decree could be said to have confer right in favour of the plaintiffs who are the grandsons of Smt. Kalawanti on the basis of decree, which has not been registered and not binding on third person. The remedy of the plaintiffs, if any, against the proceedings under the Act was by filing objections under Section 13(3)(a) of the Act or filing an application under Section 17 of the Act. Having failed to do so, the jurisdiction of the civil Court cannot be invoked as the same is expressly barred under Section 34 of the Act. 5. Learned counsel for the respondents states that the objections filed by the plaintiff-respondents were not considered. Having failed to do so, the jurisdiction of the civil Court cannot be invoked as the same is expressly barred under Section 34 of the Act. 5. Learned counsel for the respondents states that the objections filed by the plaintiff-respondents were not considered. The learned counsel for the petitioner has stated that such objections were filed after possession was taken over under Section 13(4) of the Act. Even if their objections were not considered, the remedy of the plaintiffs is to seek recourse under the provisions of the Act and not by way of filing a civil suit. Even otherwise, the plaintiffs are deriving their title through Smt. Kalawanti and therefore, the remedy of the plaintiffs is only under the Act and not by virtue of civil suit. Therefore, I am of the opinion that the impugned orders passed by the learned Courts below suffer from patent illegality and material irregularity cannot be said to be sustainable in law. The present revision petition is, thus, allowed and the impugned orders are set aside. Petition allowed.