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2010 DIGILAW 2241 (PNJ)

State Bank of India Thanesar v. Santosh

2010-08-04

HEMANT GUPTA

body2010
JUDGMENT HEMANT GUPTA, J (ORAL) - This order shall dispose of CR No. 7054 of 2009 filed by the petitioner-Bank against the order passed by learned trial Court on 12.10.2009 whereby an application under Order 7 Rule 11, Code of Civil Procedure for rejection of the plaint on the ground that Civil Court has no jurisdiction to entertain the suit in view of Section 34 of the Securitization and Reconstruction of the Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act') has been dismissed and CR No. 1327 of 2010 filed by the plaintiff against the order passed by the Courts below dismissing the application for grant of ad-interim injunction. 2. Learned counsel for the petitioner has vehemently argued that the petitioner-Bank has invoked the provisions of the Act for realization of the assets secured with it and therefore in terms of Section 34 of the Act, the jurisdiction of the Civil Court is barred. Reliance has been placed upon the Supreme Court judgment reported as Mardia Chemicals Ltd and others vs. Union of India and others, 2004 (4) Supreme Court cases, 311. 3. On the other hand, learned counsel for plaintiff-respondent argued that certain exceptions have been laid down in the aforesaid judgment in respect of the maintainability of the suit before the civil Court i.e. where the actions of the secured creditors are alleged to be fraudulent or where there is any breach of contract. Therefore, the suit of the plaintiff is maintainable before the Civil Court. 4. A copy of the plaint filed by the plaintiff has been appended with the revision as Annexure P-4. The so called allegations of fraud contained in the plaint read as under:- "that the bank officials of defendant No. 1 are colluded with defendant No.2, as Inderjeet who is partner of defendant No.1, is brother-in-law of Mr. R.K. Bhatia, the then Chief Manager of SBI Bank, Thanesar, as such, the defendant No. 1 is not taking any action against the said firm deliberately and are shielding them with their malafide intentions.” 5. The aforesaid averments in respect of the alleged fraud, prima facie, do not satisfy the ingredients of Section 17 of the Indian Contract Act, 1872 which provides that the contract obtained by fraud, is void. The aforesaid averments in respect of the alleged fraud, prima facie, do not satisfy the ingredients of Section 17 of the Indian Contract Act, 1872 which provides that the contract obtained by fraud, is void. Since the basic requirement in respect of fraud are lacking, therefore, the impugned order passed by the learned trial Court suffers from patent illegality and cannot be sustained. 6. Consequently, Civil Revision No. 7054 of 2009 is allowed. Application under Order 7 Rule 11 of Code of Civil Procedure filed by the petitioner-Bank is allowed as prayed and the plaint of the plaintiff is ordered to be rejected. 7. Since the plaint in which application seeking ad-interim injunction was moved has been ordered to be rejected, therefore, Civil Revision No. 1327 of 2010 has been rendered infructuous and the same is dismissed as such.