Judgment :- O.A.No.1033 of 2006 is filed seeking an order of interim injunction restraining the fifth respondent LIC Housing Finance Limited from taking further action pursuant to the auction notice in respect of flat bearing No.F6 situate at Lloyds Towers, 93, Lloyds Road, Royapettah, Chennai 600 014. This court was pleased to grant ad interim injunction when the said Original Application was moved, in absentia of the respondents. The fifth respondent moves Application No.179 of 2007 seeking to vacate the order of ad interim injunction granted by this court on 212. 2006 in O.A.No.1033 of 2006. The fifth respondent has taken out another application No.180 of 2007 praying to reject the plaint and dismiss the suit in C.S.No.960 of 2006 on the file of this court. .2. To avoid confusion, the plaintiff is referred as the applicant and the fifth defendant is referred as respondent herein. .3. The applicant would contend that the applicant is engaged in the business of real estate. The applicant was the owner of an extent of, 9 grounds and 442 sqft of land and building at No.93, Lloyds Road, Chennai 600 014. It entered into an agreement for joint development with Readymoney Shops and Homes Limited to promote the said property as residential flats vide an agreement dated 29. 1994. The applicant also executed a registered power of attorney dated 210. 1994 authorising Readymoney Shops and Homes Limited to deal with 50% of the undivided land. Readymoney Shops and Homes Limited sold to the first respondent and his late wife by name Usha Ravindran under the sale deed dated 19. 1991, an undivided extent of 916.95 sqft. As there was inordinate delay caused by the builder Readymoney Shops and Homes Limited, the aforesaid agreement for joint development was cancelled and the power of attorney was revoked by the applicant. Then a suit in C.S.No.226 of 1998 was filed by the applicant as against the builder before this court and an order of injunction restraining the builder of exercising any right under the aforesaid agreement was obtained. Thereafter, a memorandum of settlement dated 21. 2002 was entered into between the applicant, the flat purchasers and the Readymoney Shops and Homes Limited. The applicant, under the aforesaid memorandum of settlement, took absolute possession of the entire property and handed over the property to a new contractor for the completion of the construction. Thereafter, a memorandum of settlement dated 21. 2002 was entered into between the applicant, the flat purchasers and the Readymoney Shops and Homes Limited. The applicant, under the aforesaid memorandum of settlement, took absolute possession of the entire property and handed over the property to a new contractor for the completion of the construction. The additional amount required to complete the construction was to be paid by the flat purchasers under the pool account. The first respondent and his wife executed a declaration addressed to the applicant confirming the aforesaid memorandum of settlement dated 210. 2002. The said declaration confirmed that a sum of Rs.2,97,200/= was payable by the first respondent to the pool account. The first respondent allowed the applicant to hold possession of the apartment No.F6 allotted to him and his wife till payments were made along with interest. The first respondent and his late wife mortgaged only the undivided share of the land and borrowed housing loan from the fifth respondent, but the fifth respondent now claims that the suit flat is also the subject matter of the mortgage. It has now invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) to bring the property to auction sale. A notice was affixed on the outer door of the suit property stating that the fifth respondent had taken possession of the property on 11. 2006 pursuant to the orders of the Chief Metropolitan Magistrate, Chennai dated 110. 2006 under Section 13(4) of the SURFAESI Act. The memorandum of settlement and the declaration given by the first respondent supersede all other agreements/arrangements. No interest has been created in the suit property, which remains in the possession of the applicant. Therefore, the applicant seeks for an order of interim injunction as stated therein. As the suit relates not only to the action taken by the fifth respondent under the SURFAESI Act, 2002, but, it also pertains to claim of interest over the suit property. The applicant is a third party to the dispute between the first respondent and the fifth respondent. The fifth respondent deliberately misinterprets section 34 of the SURFAESI Act with a view to hush up the merits of the case. The applicant is a third party to the dispute between the first respondent and the fifth respondent. The fifth respondent deliberately misinterprets section 34 of the SURFAESI Act with a view to hush up the merits of the case. As the applicant was not covered by the provision of the SURFAESI Act, 2002, the question of filing any application under section 17 of the Act by the applicant does not arise. Therefore, the application filed by the fifth respondent to reject the plaint deserves to be dismissed. 4. The fifth respondent contends that the very prayer found in the suit is to completely stand the action taken under the SURFAESI Act, 2002 by the fifth respondent. There is a clear bar under section 34 of the said Act to entertain any such nature of suit by the civil court. The Advocate Commissioner appointed by the learned Chief Metropolitan Magistrate by his order dated 110. 2006 in Criminal M.P.No.3355 of 2006 took possession of the suit property on 11. 2006. The possession notice was affixed in the suit property. This court has no jurisdiction to entertain any suit in connection with the proceedings initiated by the fifth respondent under the SURFAESI Act, 2002. Under section 17 of the SURFAESI Act, 2002, the Debts Recovery Tribunal is empowered to examine the issues arising pursuant to the proceedings initiated by the fifth respondent under the SURFAESI Act, 2002. Auction sale also was conducted by the fifth respondent on 20.12.2006 and one Mr. D. Ravichandran residing at Besant Nagar, Chennai was declared as the highest bidder for a sum of Rs.56,50,000/-=. The auction sale was also confirmed in his favour by the authorised officer of the fifth respondent. After adjusting the entire dues, charges, further costs, etc., the fifth respondent is ready to deposit the balance amount into this court. At any rate, this court has no jurisdiction to entertain any suit in view of the clear bar imposed by section 34 of the SURFAESI Act, 2002. Therefore, the ad interim injunction granted shall be vacated and the plaint may be rejected and the suit may be dismissed. 5. At any rate, this court has no jurisdiction to entertain any suit in view of the clear bar imposed by section 34 of the SURFAESI Act, 2002. Therefore, the ad interim injunction granted shall be vacated and the plaint may be rejected and the suit may be dismissed. 5. Learned counsel for the applicant would submit that the first respondent had already given the right to be in possession of the suit property to the applicant by virtue of a letter of undertaking issued by him much earlier to the mortgage of the property created in favour of the fifth respondent. The fifth respondent cannot lawfully initiate proceedings under the SURFAESI Act, 2002. The undivided share in the land alone was available at the time when the mortgage by deposit of title deeds was executed by the first respondent in favour of the fifth respondent. The entire superstructure was constructed only after the applicant after taking over possession of the property from the erstwhile builder and therefore, as on the date of the execution of the mortgage by deposit of title deeds, the flat was not available. What was mortgaged by the first respondent to the fifth respondent was only an undivided share he had already purchased from the erstwhile builder who got power of attorney from the applicant. Therefore, the fifth respondent cannot invoke the provisions under the SURFAESI Act, 2002 to take possession and sell the flat which was constructed later in point of time and was entrusted to the applicant till the entire dues were cleared by the first respondent as per the letter of undertaking issued by him. As an interest had already been created in the property by virtue of the letter of undertaking issued by the first respondent, the said right will have to be decided only by the civil court and not by the Debts Recovery Tribunal under section 17 of the SURFAESI Act, 2002. Therefore, he would contend that the suit is very much maintainable and this court has jurisdiction to deal with such a lis. Further, he would submit that the applicant, who has been in possession of the property in lieu of the amount due from the first respondent, is entitled to protection from the action initiated by the fifth respondent invoking the provisions under the SURFAESI Act, 2002. .6. Further, he would submit that the applicant, who has been in possession of the property in lieu of the amount due from the first respondent, is entitled to protection from the action initiated by the fifth respondent invoking the provisions under the SURFAESI Act, 2002. .6. Learned counsel appearing for the fifth respondent would vehemently submit that this court has no jurisdiction to deal with this matter as a remedy has been provided under the special enactment viz., SURFAESI Act, 2002. Not only there is a clear bar to entertain such nature of lis to cripple the action of the secured creditor under the SURFAESI Act, 2002 but also, an alternative remedy has been provided therein. It is alleged that the letter of undertaking issued by the first respondent in favour of the applicant creates a charge over the property. But, such a charge can be taken cognizance of only when such a charge is registered as per law. Such an unregistered charge alleged to have been created upon the property cannot precede the registered mortgage by deposit of title deeds created by the first respondent in favour of the fifth respondent. At any rate, the suit is hit by section 34 of the SURFAESI Act, 2002. Therefore, the suit itself is liable to be dismissed. 7. The court would like to take first the issue as to whether this court has jurisdiction to entertain the suit filed by the applicant for the reliefs adumbrated in the plaint. The first prayer is for declaration that the fifth respondent has no right or interest over the suit property enabling it to take action under the SURFAESI Act, 2002. The consequential prayer is for permanent injunction restraining the fifth respondent from taking any further action pursuant to the auction notice issued by it in respect of the suit property. There is yet another prayer for declaration that the auction sale conducted on 20.12.2006 by the fifth respondent in respect of the suit property is null and void. The fifth respondent is found to be a secured creditor as per the definition found under section 2(1) (zd) of the SURFAESI Act, 2002. The registered mortgage by deposit of title deeds has been filed by the fifth respondent to show that a secured interest has been created on the subject property and thereby the subject property has become a secured asset. The registered mortgage by deposit of title deeds has been filed by the fifth respondent to show that a secured interest has been created on the subject property and thereby the subject property has become a secured asset. In terms of section 13(4) of the SURFAESI Act, 2002, the fifth respondent has every authority to take possession of the secured assets of the borrower and sell the same for realizing the secured assets in case the borrower fails to discharge his liability in full. The fifth respondent has shown before the court that the first respondent who borrowed the housing loan having executed a registered mortgage by deposit of title deeds failed to discharge the debt. Even assuming that there is no superstructure built on the undivided share of land of the first respondent at the time of executing the mortgage by deposit if title deeds, the mortgage is entitled to any building constructed on the undivided share of land mortgaged. .8. Any person including the borrower who has got any grievance on account of the action taken by the secured creditor as per the aforesaid sub section 4 of section 13 of the SURFAESI Act can approach the Debts Recovery Tribunal by way of appeal. The Debts Recovery Tribunal is empowered to consider whether the enforcement of security by the secured creditor is in accordance with the provisions of SURFAESI Act. If the Debts Recovery Tribunal, on appeal preferred by the aggrieved party, finds that the enforcement of security was not in accordance with the provisions of SURFAESI Act, 2002, then the Debts Recovery Tribunal has every authority to restore possession of the property to the original owner thereof as per section 17 of the said Act. Regarding the rights of the secured creditor and the remedy available for the borrower or anybody else, who is an aggrieved person, section 34 of the SURFAESI Act, 2002 clearly puts a bar on the civil court to entertain any suit or proceedings in respect of any matter which the Debts Recovery Tribunal or the appellate Tribunal is empowered under the said Act to determine. The grant of injunction to stall the action taken by the secured creditors under the provisions of the SURFAESI Act, 2002 has also been completely barred under section 34 of the said Act. 9. The grant of injunction to stall the action taken by the secured creditors under the provisions of the SURFAESI Act, 2002 has also been completely barred under section 34 of the said Act. 9. As already pointed out by this court, the fifth respondent is found to be a secured creditor. The fifth respondent has shown before the court that the first respondent had made default in payment to liquidate the home loan he got by creating mortgage of the subject property by deposit of title deeds. The fifth respondent has initiated action under section 13(4) of the said Act. A remedy has been provided not only for the borrower but also to any person who is aggrieved by the action taken by the secured creditor to take recourse to section 17 of the SURFAESI Act, 2002. The Debts Recovery Tribunal has further authority to decide whether the enforcement of security was made proper by the secured creditor. Here, in this case, the applicant contents that he has got a charge over the property even long prior to the creation of mortgage by deposit of title deeds by the first respondent in favour of the fifth respondent. Such a disputed question of fact can definitely be gone into by the Debts Recovery Tribunal under section 17 of the said Act. It is not as if the Debts Recovery Tribunal has no power to decide whether the applicant has got charge over the property. In the process of deciding whether the security was properly enforced by the fifth respondent, the Debts Recovery Tribunal, under section 17 of the said Act, will have to necessarily go into whether the charge alleged to have been created in favour of the applicant by the first respondent has gained priority over the subject mortgage by deposit of title deeds created by the first respondent in favour of the fifth respondent. 10. This court, in A. Venkatramani v. LIC Housing Finance Limited has held that the right of the subsequent purchasers or bona fide purchasers could be very well decided by the Debts Recovery Tribunal under the jurisdiction conferred on it under section 17 of the SURFAESI Act, 2002. 11. 10. This court, in A. Venkatramani v. LIC Housing Finance Limited has held that the right of the subsequent purchasers or bona fide purchasers could be very well decided by the Debts Recovery Tribunal under the jurisdiction conferred on it under section 17 of the SURFAESI Act, 2002. 11. The learned counsel for the applicant submitted an authority in Arasa Kumar v. Nallamman ((2004) 6 MLJ 252) wherein it has been held that the secured creditor, under the SURFAESI Act, 2002 cannot bring the property for sale before a decision was arrived at by the competent civil court in a suit for partition laid already as to the rights of the parties in respect of their claims made therein. That was a case where the secured creditor has chosen to invoke the provisions of the SURFAESI Act, 2002 against a debtor whose share in the property was yet to be decided in a partition suit pending before the court. In such circumstances, this court observed that in the guise of the bar contemplated under section 34 of the SURFAESI Act, 2002, the secured creditor cannot be permitted to invoke section 13(4) of the said Act before ever the share of the debtor was crystallized in the partition suit. Therefore, the above authority does not apply to the facts and circumstances of this case. 12. The learned counsel for the applicant referring to section 31 of the SURFAESI Act, 2002 would submit that no proceedings can be initiated by the secured creditor when the property is under lien. 13. A careful reading of the various provisions in the SURFAESI Act, 2002 enabling the secured creditors to deal with the secured assets, the court finds that section 31 of the SURFAESI Act, 2002 would apply only in a case where the secured creditor started initiating proceedings under the SURFAESI Act, 2002 when the secured creditor has only a lien on the goods, money or security given under the Indian Contract Act, 1872. In other words, a secured creditor who has got only a lien on the goods, money or security given under the Indian Contract Act, 1872 cannot resort to any of the provisions of the SURFAESI Act, 2002. It is a total misinterpretation to say that SURFAESI Act will not apply in a case where the security was under lien with a third party. It is a total misinterpretation to say that SURFAESI Act will not apply in a case where the security was under lien with a third party. Therefore, the argument advanced by the learned counsel for the applicant that the Act will not have any application when the security was under charge with a third party stands rejected. 14. The present suit has been filed completely ignoring the bar under section 34 of the SURFAESI Act, 2002. The applicant has to approach the Debts Recovery Tribunal under section 17 of the Act to establish his charge over the property. This court has no jurisdiction to deal with such a lis. 15. Therefore, the order of injunction granted in O.A.No.1033 of 2006 stands vacated and as a result, O.A.No.1033 of 2006 stands dismissed. Consequently, Application No.179 of 2007 is dismissed as infructuous. Application No.180 of 2007 stands allowed.