Judgment : 1. This appeal is directed against the order passed by the Court of the XIII Additional City Civil Judge, Mayo Hall, Bangalore (CCH-22) on I.A. No. II in O.S. No. 27417/09. 2. The facts of the case in brief are that the respondents Nos. 3 to 5 and one more person (who was not made a party to the suit proceedings) availed of the financial assistance from the respondent Nos. 1 and 2. As the security for the repayment of the loan, they have also mortgaged the suit schedule property. As the said borrowers committed default in the payment of amounts, the entire loan was recalled. The respondent Nos. 1 and 2 initiated the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’ for short). The appellant claiming to be the tenant approached the Civil Court seeking the relief of permanent injunction restraining the respondents from interfering with the peaceful possession and the enjoyment of the suit schedule property. In the suit proceedings, the respondent No. 1 filed an application invoking Order VII, Rule 11(d) of CPC for the rejection of the plaint. The Trial Court, by its order, dated 2.6.2010 allowed the said I.A. and rejected the plaint. 1. 3. Sri Vinaya Kumar G.S., the learned counsel for the appellant submits that Section 34 of the SARFAESI Act does not debar a tenant from filing a suit for bare injunction. He submits that the reliance upon the decision of the Apex Court in the case Mardia Chemicals Ltd. versus Union of India and others, reported in AIR 2004 SC 2371 : (2004 AIR Kant HCR 1677), is not sustainable, because in the said reported case, only bankers and borrowers were involved; in the instant case, th3e suit is filed by a tenant. 4. He submits that the respondent Nos. 1 and 2 have let loose the gundas to forcibly throw the appellant out of their suit schedule property. 5. 4. He submits that the respondent Nos. 1 and 2 have let loose the gundas to forcibly throw the appellant out of their suit schedule property. 5. Relying on this Court’s decision in the case of Hutchison Essar South Limited versus Union Bank of India represented by its Authorised Officer & another reported in ILR 2007 Kar 4362 : ( AIR 2008 Kar 14 : 2007 (6) AIR Kar R 545) he submits that under the proceedings of the SARFAESI Act, a bank can take at the most the symbolic possession; it cannot take the actual possession without following the due process of law. Nextly, he also brought to my notice the decision of the Calcutta High Court rendered in the case of Manager, UCO Bank versus Samar Sarkar and others, reported in AIR 2008 Calcutta 9. The relevant paragraphs of the said decision are extracted hereinbelow: “10. None of the provision of the said Act authorizes the bank to recover possession from a tenant under the borrower in a mortgaged property in the process of recovery of its dues from its borrower. If that be so, the bank cannot evict the tenant of a borrower from a mortgaged property by virtue of any of the provisions of the said Act and if any action of the bank which is not protected under the said Act, is challenged by such a tenant in a suit, such challenge cannot be held to be barred under the provision of Section 17 of the said Act. 11. Accordingly, this Court holds that the suit, as framed by the plaintiff/opposite party is not barred under the provision of the said Act. The learned Trial Judge rightly held that the suit is maintainable and the plaint cannot be rejected.” 6. He also sought to draw support from the Madras High Court’s decision in the case of State Bank of India versus Gopal alias Gopalan and another reported in AIR 2009 Madras 50. The relevant portion of the said judgment is extracted hereinbelow. “5…… The aforesaid provision of law is nothing to do with the prayer sought for in the suit since the respondent/plaintiff has not sought for an injunction against any proceedings under the Securitisation Act. The prayer of the first respondent/plaintiff is that he should not be evicted forcibly or illegally except under due process of law. “5…… The aforesaid provision of law is nothing to do with the prayer sought for in the suit since the respondent/plaintiff has not sought for an injunction against any proceedings under the Securitisation Act. The prayer of the first respondent/plaintiff is that he should not be evicted forcibly or illegally except under due process of law. He being the tenant of the premises is entitled to seek injunction even against the landlord of the property that he should not be evicted except under due process of law. Hence it is open to the revision petitioner to take appropriate legal action against the respondent as per law to evict him from the suit property. Even if the suit is decreed, it is only against illegal eviction, which will not affect any legal action being taken to evict the respondent/plaintiff. Even by an undertaking given by the petitioner that the petitioner herein will not dispossess the respondent herein except under due process of law, the Court below can record the undertaking and dispose the suit, since the scope of the suit is limited.” 7. Per contra, Sri D. Ashwathappa, the learned counsel for the respondent No.1 submits that the trial Court has passed the right order following the law laid down by the Honourable Supreme Court in Mardia’s ( AIR 2004 SC 2371 : 2004 AIR Kant HCR 1677) (supra) case. He submits that as the appellant has alleged fraud, the Civil Court does not get the jurisdiction to try any dispute, which is amenable to the provisions of the SARFAESI Act. He read out para 42 of the Apex Court’s decision in the case of United Bank of India versus Satyawati Tandon and others reported in (2010) 8 SCC 110 :(AIR 2010SC 3414 : 2010 (4) AIR Kar R 439). It reads as follows: “42. There is another reason why the impugned order should be set aside. If respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under SARFAESI Act are both expeditious and effective.” 8. Drawing support from the afore-extracted portion of the decision, he submits that the expression ‘any person’ used in Section 17(1) of the SARFAESI Act is of inclusive nature. It includes not only the borrower, but also guarantor and a tenant too. 9. He also read out the Delhi High Court’s judgment in the case of Vickey Kumar Rana versus Kamal Kumar Nangia and others reported in AIR 2010 Delhi 210 to buttress his submission that the remedy open to the plaintiff-tenant is only to approach the Debt Recovery Tribunal (DRT) under Section 17 of the SARFAESI Act. In view of the Apex Court’s judgment in the case of Mardia Chemicals (supra), Delhi High Court refused to follow the Calcutta High Court’s decision in the case of Manager, UCO Bank (supra). In this regard, he brought to my notice para 12 of the Delhi High Court’s decision in Vicky’s case, which is as follows: “12 . It may be pertinent to mention here that the provisions of the Act have been sufficiently dealt with and interpreted by not only the Apex Court but also by various High Courts including our own High Court and the extensive examination including the dissection of the various provisions especially Section 13, 17 and 34 of the Act makes the picture very clear. These provisions are not being specifically reproduced herein, however, the sum and substance of the section/provisions, the parameters which emerge from these sections is that in cases where the property is mortgaged or is furnished as a security to a financial institutions or a bank by a person as a security for the loan which has been taken by him in the event of his default in payment of requisite instalment of the loan or if he does not pay at all, or if his account becomes non-performing asset, bank/financial institutions need not seek orders for attachment before judgment as is done in the civil law under Order XXXVIII, Rule 5 of the CPC. On the contrary, the bank can issue to such defaulter, a notice recalling such facility and ask defaulter borrower to clear the entire outstanding within a period of 60 days from the date of issuance of such a notice and in case the defaulter does not comply with the said notice then try to take the physical possession of the property mortgaged or furnished as a security by following various steps which are envisaged under Section 13 (4) of the Act by giving a public notice and thereafter go to the Court of CMM under Section 14 of the Act and take actual possession of the said property as a secured creditor. In this scheme of things, it has been visualized by the legislature that there may be persons other than the borrowers who may have interest in the property who may have some objections regarding the realization of the loan amount from the secured assets and for such a person Section 17(1) of the Act makes it abundantly clear that any person which, will include a ‘borrower’ as well as non-borrower also if he feels aggrieved from any action of the bank, he can approach the Debt Recovery Tribunal which is a specialized forum created under the Act itself to seek, redressal of his grievance. Further in order to make this scheme of the Act operative both functional as well as effective the jurisdiction of the Civil Court has been specifically barred under Section 34 of the Act. A conjoint reading of the Ss. Further in order to make this scheme of the Act operative both functional as well as effective the jurisdiction of the Civil Court has been specifically barred under Section 34 of the Act. A conjoint reading of the Ss. 13,17 and 34 of the Act would clearly show that even though the plaintiff who may be claiming himself to be the tenant in respect of the third floor of the suit property which was pledged with the defendant No.3 as a secured asset had to approach the Debt Recovery Tribunal in case he felt aggrieved from the action of the defendant No. 3 in issuing the public notice on 25.12.2009 or by threatening to take possession of the suit property of the premises on 22.03.2010 when the officials of the bank along with the defendant Nos. 1 and 2 are alleged to have visited and threatened the plaintiff from being dispossessed. Further Section 34 of the Act ousted the jurisdiction of the Civil Court thereby meaning that this Court is prohibited from taking cognizance of the suit filed by the plaintiff himself. This scheme of thing has been clearly approved by the Apex Court in paras 51 and 59 of Mardia Chemicals ( AIR 2004 SC 2371 ) : (2004 AIR Kant HCR 1677) (supra). It will be worthwhile reproducing hereinbelow the relevant observations of the Apex Court. 51. “It has also been submitted that an appeal is entertainable before the Debts Recovery Tribunal only after such measures as provided in sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. Thus before any action or measure is taken under sub-section (4) of Section 13, it is submitted by Mr. Salve one of the counsel for respondents that there would be no bar to approach the Civil Court. Therefore, it cannot be said no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri Salve is not correct. A full reading of Section 34 shows that the jurisdiction of the Civil Court is barred in respect of matters which a Debt Recovery Tribunal or Appellate Tribunal is empowered to determine in respect of any action taken “or to be taken in pursuance of any power conferred under this Act”. A full reading of Section 34 shows that the jurisdiction of the Civil Court is barred in respect of matters which a Debt Recovery Tribunal or Appellate Tribunal is empowered to determine in respect of any action taken “or to be taken in pursuance of any power conferred under this Act”. That is to say that prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the Civil Court shall have no jurisdiction to entertain any proceeding thereof. The bar of Civil Court thus applies to all such matters which may be taken cognizance of by the Debt Recovery Tribunal, apart from those matters in which measures have already been taken under sub-section (4) of Section 13.” 59. “We may like to observe that proceedings under Section 17 of the Act, in fact are not appellate proceedings. It seems to be a misnomer. In fact it is the initial action which is brought before a Forum as prescribed under the Act, raising grievance against the action or measures taken by one of the parties to the contract. It is the stage of initial proceeding like filing a suit in Civil Court. As a matter of fact proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. We may refer to a decision of this Court reported in MANU/SC0020/1974 : (1974) 3 SCR 882 : ( AIR 1974 SC 1126 ), Smt. Ganga Bai versus Vijay Kumar and others, where in respect of original and appellate proceedings a distinction has been drawn as follows: “….. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless one’s choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless one’s choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.” 10. Sri Ashwathappa saubmits that the possession of the vacant space in question is already taken over. He further submits that the property in question is already sold. 11. Sri P. Chandrashekar Shetty, the learned counsel for the respondent No. 2 submits that he adopts the submissions of Sri. Ashwathappa. He further submits that the parties who were in possession of the suit schedule property were indeed served with the notices under Section 13(2) of the SARFAESI Act on 31.8.2009. He submits that the appellant has never been in possession of the suit schedule property. He submits that the very filing of the suit is a collusive exercise undertaken by the appellant at the instance of the borrowers.esubmits that the very filing of the suit is a collusive exercise undertakne by the appellanbt at the instance of the jjjjjjkkkkk 12. In the course of rejoinder, Sri Vinaya Kumar denies that the appellant has lost the possession. He submits that a number of documents are filed by him to show that the appellant continues to be in possession of the property in question. 13. The respondent Nos. 3 to 5 (borrowers) are served with the notices, but have remained unrepresented. 14. Whether the appellant is in possession of the suit schedule property, whether the possession is taken over by the Bank, further whether it is made over to the auction-purchaser, etc., are all the questions which do not fall for adjudication in this appeal. The only question that falls for consideration in the appeal is, whether the trial Court is right in rejecting the plaint on the ground that its jurisdiction is ousted. The only question that falls for consideration in the appeal is, whether the trial Court is right in rejecting the plaint on the ground that its jurisdiction is ousted. For considering this point, the advertence has to be made to the relevant statutory provisions. Section 34 of the SARFAESI Act reads as follows: “34. Civil Court not to have jurisdiction. – No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).” 15. It is also profitable to refer to the provisions contained in Section 17 of the SARFAESI Act. “17. Right to appeal, -(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under this Chapter [may make an application along with such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken: (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993(51 of 1993) and the rules made thereunder.” 16. Thus the scheme of SARFAESI Act is such that the Civil Court’s jurisdiction to entertain any suit in respect of a matter which the Debt Recovery Tribunal or the Appellate Tribunal is empowered to determine, is ousted. Further, the legislature has visualized that not only a borrower but a non-borrower could also be aggrieved by the action of the bank. And the remedy of the aggrieved person is to file the appeal. 17. The Delhi High Court has put a meaningful interpretation on the words ‘ any person’ found in Section 17 and has held that it is inclusive of the borrower, guarantor, tenant or any other person. And the remedy of the aggrieved person is to file the appeal. 17. The Delhi High Court has put a meaningful interpretation on the words ‘ any person’ found in Section 17 and has held that it is inclusive of the borrower, guarantor, tenant or any other person. In view of such an inclusive definition, the appellant-plaintiff has to approach the specialized forum created under the statute. 18. I am inclined to agree with the Delhi High Court’s decision in the case of Vicky ( AIR 2010 Del 210 ) (supra). The Delhi High Court for right reasons and following the dictum laid down by the Apex Court is not persuaded to take a view taken by the Calcutta High Court in the case of Manager UCO Bank ( AIR 2008 Cal 9 ) (supra). 19. When the statute prescribes a particular remedy, the aggrieved party is required to take recourse to that remedy only. Skipping or bypassing that remedy, he cannot choose the remedy of filing the suit, more so when it is expressly barred by Section 34 of the SARFAESI Act. 20. The authorities relied upon by the appellant’s side do not come to the rescue of the appellant in any way. 21. Liberty is expressly reserved to the appellant to avail of the appeal remedy. The reasons given by the trial Court for rejecting the plaint and the reasons given by this Court confirming the trial Court’s order are only for disposing of this appeal. If an appeal is filed by the appellant before the DRT, it shall be adjudicated on merits. 22. If the possession is not yet taken over and if it is to be taken over, the respondent Nos. 1 and/or 2 shall do so only by following the due process of law. 23. Subject to the observations made hereinabove, this appeal is dismissed. No order as to costs.