JUDGMENT Honble Yatindra Singh, J.—This appeal revolves around grant of an interim injunction by the civil Court against action taken by a bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the Act). The Facts 2. The admitted pedigree of the plaintiff respondents (PR) and defendant respondents (DR) is as follows : Dina Nath Goenka = Gunmala Devi Goenka (PR-1) Kamal Kumar Vimal Kumar Rajendra Narendra Goenka (DR-6) Goenka (DR-4) Goenka Goenka = Madhu Goenka = Asha Goenka =Shobha = Lalita Goenka Goenka (DR-5) (PR-2) (PR-3) 3. Smt. Gun Mala Devi Goenka (PR-1), alongwith her four daughter-in-laws namely Madhu Goenka w/o Kamal Kumar Goenka (DR-6), Asha Goenka (DR-5), Shobha Goenka (PR-2) and Lalita Goenka (PR-3) are co-owners (referred to as the Co-owners) of the property in dispute, which is situate at village Sheopurva, Pargana Nadesar, Varanasi. They jointly purchased the property by means of seven sale-deeds executed by different vendors but in every sale-deed, all of them are co-vendees: it is jointly owned by them. The property of these seven sale-deeds is adjacent to each other so as to form one piece of land. 4. Sri Kamal Kumar Goenka (DR-6), Sri Vimal Kumar Goenka (DR-4) and Smt. Asha Goenka (DR-5) are sole proprietors of M/s Banaras Auto Scooters, M/s Goenka Distributors, and M/s Goenkas respectively. They obtained a loan from Union Bank of India, Varanasi Branch, Varanasi (the Bank). 5. According to the Bank, In view of the loan, the co-owners deposited seven sale (title) deeds with the bank on 24.4.1996 thus equitably mortgaging the same. They also executed a letter of guarantee, affidavit of depositing the title deeds, and declaration on the same date. DR 4 to 6 did not pay back the loan and the Bank issued a notice under Section 13(2) of the Act on 24.5.2006 that was sent by registered post as well as by courier. When no reply was received by the Bank, proceedings under Section 13(4) of the Act were taken. 6. The plaintiff-respondents filed the present suit No. 559 of 2007 on 29.5.2007 in the Court of Civil Judge (Senior Division) Varanasi for declaration that they neither created collateral security by equitable mortgage of their individual property, nor stood guarantors for any liability of DR-4 to 6 towards the Bank and for permanent prohibitory injunction. 7. 6. The plaintiff-respondents filed the present suit No. 559 of 2007 on 29.5.2007 in the Court of Civil Judge (Senior Division) Varanasi for declaration that they neither created collateral security by equitable mortgage of their individual property, nor stood guarantors for any liability of DR-4 to 6 towards the Bank and for permanent prohibitory injunction. 7. In the aforesaid suit, the plaintiff respondents also filed an application for interim injunction restraining the Bank from proceeding under the Act. This injunction application has been allowed on 30.7.2007 restraining the Bank from attaching and selling the property in dispute during pendency of the suit. Hence, the present appeal. Points for determination 8. We have heard Sri Kushal Kant, Counsel for the appellant, Sri Shashi Nandan and Sri Tarun Verma, Counsel for the plaintiff-respondents. According to the parties, defendant respondent Nos. 4 to 6 are the proforma party and service of notice on them should be dispensed with, it is accordingly dispensed with. With the consent of the parties, the appeal is being finally decided at this stage. The following points arise for determination. (i) Whether there is prima facie case in favour of the plaintiff respondents? (ii) Whether the Court below should have first decided the question of its jurisdiction? (iii) Whether the civil Court has jurisdiction? 1st Point : No prima facie case 9. The Court below has not recorded any finding on the question of jurisdiction but has granted the injunction on the following findings : "Thus there are sufficient grounds prima facie to believe the guarantee papers as fake, concocted and void. Until they are proved true, the prima facie case is proved in favour of plaintiffs. Which is the subject matter of the evidence. Before this if defendant set No. 2 acquires possession and sells in auction the property of or title deeds of plaintiffs; it will cause irreparable loss to plaintiffs. Balance of convenience is also in favour of plaintiffs. I find sufficient ground to allow 6-C." The finding regarding irreparable loss and balance of convenience are in a way dependent on the finding regarding prima facie case. And the question whether the plaintiff-respondents have prima facie case or not, is the most important question in this appeal. 10. Balance of convenience is also in favour of plaintiffs. I find sufficient ground to allow 6-C." The finding regarding irreparable loss and balance of convenience are in a way dependent on the finding regarding prima facie case. And the question whether the plaintiff-respondents have prima facie case or not, is the most important question in this appeal. 10. The undisputed facts are, that the loan was taken by DR-4 to 6 from the Bank, The property in dispute is jointly owned by plaintiff respondents, DR-5 (wife of DR-4) Smt. Madhu Goenka (wife of DR-6). They have equal share and the plaintiff respondents have three-fifth share in this property; The mortgage of remaining two-fifth share is not disputed; The bank was entitled to attach and sell two-fifth share belonging to Madhu Goenka (wife of DR-6) and Asha Goenka (DR-5) as these persons have not initiated any proceeding; The property in dispute had been equitably mortgaged with the Indian Bank earlier for obtaining loan for the family members. Lets consider whether there is any prima facie case with the plaintiff-respondents or not. 11. In the present case, not only the sale-deeds were deposited with the Bank but the co-owners had filed affidavit, declaration, and guarantees. The Court below has held the affidavit to be invalid on the ground that the affidavit is of 20.4.1996 and the stamp papers are alleged to have been purchased on 28.4.1996. 12. Photostat copy of the affidavit alongwith endorsement of the date on which the stamps have been purchased, is filed alongwith the affidavit before us. On the back of the stamp, the date of purchase has been mentioned. It is 20.4.1996 and not 28.4.1996. The affidavit cannot be ignored on this ground. 13. Affidavit was sworn before the notary. The fact that the deponent swearing the affidavit was not verified by an advocate is not an indication that the deponent was not present before the notary. The deponent has to appear before the notary: otherwise affidavit cannot be sworn. Here, the notary has not filed any affidavit that the deponents had not appeared before him. The affidavit could not be ignored on this ground also. 14. The Court below has doubted the guarantees on the ground that they were executed on different dates. It is common commercial practice that after the loan is taken, its limits is increased from time to time. The affidavit could not be ignored on this ground also. 14. The Court below has doubted the guarantees on the ground that they were executed on different dates. It is common commercial practice that after the loan is taken, its limits is increased from time to time. In such an event, different guarantees are executed as and when the limit is enhanced. Merely because there were many guarantees do not mean that the plaintiff respondents did not give guarantees. On the contrary, it shows that guarantees were given, otherwise guarantors would have at least objected earlier and not after eleven years. 15. The Court below has also observed that there is no signature of Lalita Goenka. This is incorrect. Photostat copy of declaration given by the plaintiff respondents is filed before this Court alongwith the affidavit. It shows that not only Lalita Goenka, but all the plaintiff-respondents have singed the same. 16. The Court below has also recorded a finding that notice under Section 13(2) was not served. The notices were sent to the plaintiffs by registered post as well as by courier and they are deemed to have been served upon them. In any case, this question can be raised under Section 17 of the Act and no advantage of this fact can be taken in the suit. 17. The title deeds were earlier filed before the Indian Bank to obtain loan for some family members. The loan of the Indian Bank was paid back in 1996, and the title deeds were released. Thereafter these title deeds were filed before the Union Bank. The present suit has been filed in 2007. In case the plaintiff respondents had not equitably mortgaged the property then it is surprising that no action was taken by them for last eleven years. This creates a doubt in the case of the plaintiff. 18. The property in dispute was equitably mortgaged with the Indian Bank to obtain loan for some family members. This appears to be common practice, may be because the property is jointly owned. Nothing has been pointed out to show that property has been partitioned. In the circumstances, it is normal that it is utilised for obtaining loan for other family members. 19. Considering all aspects, we hold that the plaintiff respondents have no prima facie case and the Court below committed an illegality in granting injunction in their favour. Nothing has been pointed out to show that property has been partitioned. In the circumstances, it is normal that it is utilised for obtaining loan for other family members. 19. Considering all aspects, we hold that the plaintiff respondents have no prima facie case and the Court below committed an illegality in granting injunction in their favour. 2nd and 3rd Point : The question of jurisdiction should have been considered 20. The Counsel for the appellant submitted that suit is barred under Section 34 of the Act and the remedy of the plaintiff-respondents is to file an application under Section 17 of the Act. 21. Under Section 34 of the Act, the jurisdiction of the civil Court is barred regarding matters for which action can be taken under the Act. This is an important aspect. In case the Court below has no jurisdiction then there was no justification to grant the injunction. This question was raised in the objection; the Court below did not consider it. It did not record any finding on this question. In our opinion, this question ought to have been considered first or at least adverted to. Question of jurisdiction—Not decided 22. The Counsel for the plaintiff respondents submitted that the civil Court has jurisdiction. He has brought to our notice the following observation in Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 (the Mardia case) in support of his submission : "However, 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 or to say precisely to the extent the scope is permissible to bring an action in the civil Court in the cases of English mortgages. We find such a scope having been recognised in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely v. Narasimhachariar, AIR at pp. 141 and 144, a judgment of the learned Single Judge where it is observed as follows in para 22: (AIR p.143). "22. The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. 141 and 144, a judgment of the learned Single Judge where it is observed as follows in para 22: (AIR p.143). "22. The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there is material to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which his relief is sought." As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil Court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the Court". 23. Even prior to the enforcement of the Act, some mortgagees, under certain conditions could sell the mortgaged property without intervention of the Court. This is specified under Sections 69 and 69-A of the Transfer of Property Act (The TP Act). At that time, the mortgagee could be restrained from selling the property. The earliest decision in this regard is Jagjivan Nanabhai v. Shridhar Bal Krishna Nagarkar; ILR (2) Bombay 252 (The Bombay Case). The Court explains those conditions as follows : "The owner of the equity of redemption can only stay the sale pendente lite by paying the amount due into Court, or by giving prima facie evidence that the power of sale is being exercised in a fraudulent or improper manner, contrary to the terms of the mortgage." It is also so held in V. Narasimhachariar v. Egmore Benefit Society, AIR 1955 Madras 135 (The Madras case). 24. The Counsel for the Bank submitted : The Mardia case was regarding validity of the Act and the Supreme Court was not concerned with the question whether the civil Court had jurisdiction or not. The observations made therein are merely of a casual nature and do not declare the law. Earlier the civil suit was maintainable as there was no other remedy against the sale. The observations made therein are merely of a casual nature and do not declare the law. Earlier the civil suit was maintainable as there was no other remedy against the sale. At present the remedy is there and it is under Section 17 of the Act: appropriate orders can be obtained therein. The jurisdiction of the civil Court—as envisaged by the Bombay case and the Madras case—is now vested with the Tribunal under Section 17 of the Act. Action under Section 13 of the Act can be taken only, if there is valid security. The jurisdiction under Section 17 of the Act is very wide and anyone can file application raising all pleas. The question that there is no valid security can be raised in an application before the Tribunal under Section 17 of the Act. There is no allegation against the Bank (mortgagee): allegations are only against the co-mortgagor. Even if the suit is maintainable, then none of the conditions on which any mortgagee can be restrained are present. Neither the mortgagors/guarantors have paid the money, nor the power of sale is being exercised fraudulently. 25. We have already held that the plaintiff-respondents do not have a prima facie case for grant of injunction order. The Court below has not decided the question of jurisdiction. In view of the same, we refrain from deciding the question of jurisdiction. Conclusion and order 26. Our conclusion is that the plaintiff-respondents do not have a prima facie case for grant of temporary injunction. 27. The appeal is allowed. Impugned order is set aside and injunction application is rejected. The parties shall bear their cost. The Court below, before proceeding further with the suit may decide the question of jurisdiction first. ————