Judgment J.B. Pardiwala, J.—By way of this writ petition preferred under Articles 226 and 227 of the Constitution of India, the petitioners, a Cooperative Bank and its office bearers, seek to challenge the order passed by the 5th Additional Senior Civil Judge, Vadodara dated 6th April 2010 below application Exh.16 in Regular Civil Suit No. 1023/2008, whereby the Civil Judge rejected the application Exh.16 preferred by the petitioners, original defendant Nos. 1,3 and 4 for determining the preliminary issue as to whether the Civil Court has got jurisdiction to try the suit or not. 1.1 Brief facts relevant for the purpose of deciding this petition can be summarised as under:— 1. The petitioners are the original defendant Nos. 1, 3 and 4 in Regular Civil Suit No. 1023/2008 filed by the Respondent No. 1 – original plaintiff, a 71 year old widow, for declaration and injunction on the ground that fraud has been played upon her by the petitioners herein – original defendants along with other respondents in respect to a loan transaction. 2. It appears from the record of the case that the Respondent No. 1 herein, an old lady and a widow was lured by the petitioner Bank to apply for loan. Respondent No. 1 agreed to avail of the loan facility and for that purpose, executed a mortgage-deed and also signed few other documents necessary for the purpose of availing of the loan facility. 3. It appears that the Respondent No. 1 was informed by the Bank that the loan has been sanctioned in her favour. However, the fact remains that not a single penny was credited in the loan account of the Respondent No. 1 and she kept on inquiring about the same with the Bank. 4. It appears that at all times an evasive reply was being given by the Bank in this regard. In the mean time, the Bank, inspite of knowing that not a single penny has been paid to the widow, initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the SARFAESI Act’) and enforced the equitable mortgage created by the Respondent No. 1, the widow. 5. In the mean time, the Bank, inspite of knowing that not a single penny has been paid to the widow, initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the SARFAESI Act’) and enforced the equitable mortgage created by the Respondent No. 1, the widow. 5. The Bank also initiated and took measures under Section 13(4) of the SARFAESI Act and it is not in dispute that the Respondent No. 1 did not prefer any appeal/application under Section 17 of the SARFAESI Act. 6. The record reveals that the Bank preferred an application under Section 14 of the SARFAESI Act before the District Magistrate and the District Magistrate also passed orders in favour of the petitioner Bank. 7. In the above referred factual background, the helpless widow i.e. the Respondent No. 1, widow, had no other option but to file a civil suit being Regular Civil Suit No. 1023/2008 in the Court of Senior Civil Judge, Vadodara against the petitioner Bank, its office bearers and other defendants, praying for declaration and injunction. The suit is filed mainly on the ground that the Bank has played fraud by making a show that loan has been sanctioned in favour of the Respondent No. 1 and the Respondent No. 1 also executed an equitable mortgage in favour of the Bank but, as a matter of fact, not a single penny was paid by the Bank to the Respondent No. 1 towards the loan sanctioned in favour of the Respondent No. 1. 8. It appears that after the suit was instituted, the petitioners herein preferred an application Exh.16 in Regular Civil Suit No. 1023/2008, praying that the Civil Court may frame a preliminary issue as regards the jurisdiction of the Civil Court to adjudicate the Civil Suit. 9. It appears that an identical application under Order 14, Rules 1 and 2 of CPC, Exh.58 was also filed by the original defendant No. 9, Mamlatdar and Executive Magistrate, Vadodara, who is Respondent No. 7 in the present petition. 10. Both these applications preferred i.e. Exh.16 and Exh.58 were heard together and by a common order dated 6th April 2010, the learned 5th Additional Senior Civil Judge, Vadodara, rejected the same. 10. Both these applications preferred i.e. Exh.16 and Exh.58 were heard together and by a common order dated 6th April 2010, the learned 5th Additional Senior Civil Judge, Vadodara, rejected the same. It deserves to be noted that it is only the petitioner Bank who has thought fit to challenge the order passed below Exh.16, the application preferred by them, to frame a preliminary issue as regards the jurisdiction and deciding it as a preliminary issue. So far as the Respondent No. 7 is concerned, he has not thought fit to prefer any petition so far as application Exh.58 is concerned. 11. Aggrieved by the order passed by the Civil Judge rejecting the application Exh.16 preferred by the petitioner Bank, the present petition has been preferred challenging the same on manifold grounds. 2. We have heard learned advocate Mr. K.K. Pandey appearing for the petitioner, Dr. Mahesh Thakar appearing for Respondent No. 1, Mrs. Manisha L. Shah, learned AGP for Respondent Nos. 3, 4, 6 and 7 and Mr. K.G. Sheth, learned advocate appearing for Respondent No. 5. 2.1. The principal contentions put forward on behalf of the petitioners are as under:— 1. The learned Civil Judge has erred in rejecting the application Exh.16 and holding that the Civil Court has got jurisdiction to adjudicate Regular Civil Suit No. 1023/2008. 2. It is submitted that the Respondent No. 1 preferred civil suit only after the District Magistrate passed an order dated 18th March 2008 issuing notice to take over possession of the mortgaged property of Respondent No. 1. 3. It is submitted that Section 34 of the SARFAESI Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered under the SARFAESI Act to determine. 4. It is further submitted that even assuming for a moment without admitting that the Respondent No. 1 is a victim of fraud played upon by the petitioner Bank, Debts Recovery Tribunal can definitely look into the aspect of fraud and Civil Court would have no jurisdiction. 5. Learned Counsel would further submit that voluminous documentary evidence has been adduced in the Civil Suit to suggest that the Respondent No. 1 had availed of the loan facility and that she has signed the necessary documents in this regard. 5. Learned Counsel would further submit that voluminous documentary evidence has been adduced in the Civil Suit to suggest that the Respondent No. 1 had availed of the loan facility and that she has signed the necessary documents in this regard. He has relied upon a judgment of this Court in the matter of Oriental Bank of Commerce vs. Naresh Khushaldas Gangtani, reported in 2008 (1) GLH 665 , more particularly, paragraph 34 of the judgments, which reads as under: “34.Taking any view of the matter, this Court is of the view that the learned Civil Judge has no jurisdiction to entertain the suit and to grant any relief in the matter. The impugned order passed by the learned Civil Judge rejecting the application Ex.12 raising preliminary issue regarding jurisdiction is hereby quashed and set-aside. The learned 5th Joint Civil Judge (S.D.), Jamnagar has no jurisdiction to entertain the Regular Civil Suit No. 647 of 2004 and to pass any interim order therein. The plaint in the said suit deserves to be rejected and it is accordingly rejected. The petition is accordingly allowed. Rule is made absolute with no order as to cost.” 3. Per contra, the contentions on behalf of the Respondent No. 1 are as under: 1. The Civil Judge is justified in rejecting the application Exh.16 on the ground that prima facie the Respondent No. 1 has been able to show that fraud has been played upon her and the Bank has acted maliciously. 2. It is further submitted that the law in this regard so far as the maintainability of the suit is concerned, is well settled. 3. Learned Counsel has relied upon the judgment of the Supreme Court in the matter of Mardia Chemicals Limited vs. Union of India, reported in (2004) 4 SCC 311 . Relying on paragraph 51 of the said judgment, learned Counsel would submit that civil suit before a competent civil Court would be maintainable if the action of the secured creditor is fraudulent or the claim of the secured creditor is untenable. 4. Relying on paragraph 51 of the said judgment, learned Counsel would submit that civil suit before a competent civil Court would be maintainable if the action of the secured creditor is fraudulent or the claim of the secured creditor is untenable. 4. One important submission on behalf of the Respondent No. 1 is to the effect that the Respondent No. 1 preferred an application Exh.84 before the Civil Court and prayed for directions against the petitioner Bank to produce certain documents evidencing actual disbursement of the loan amount and other documents too, relevant for the purpose of deciding the controversy. This application Exh.84 was allowed and necessary directions have been issued to the petitioner Bank for production of important documents. It is undisputed that this order passed by the learned Civil Judge below application Exh.84 has not been challenged by the petitioner Bank. However, most importantly the order has not been complied with inspite of this specific order passed by the Civil Court. The petitioner Bank has failed to produce the documents to suggest that the loan amount has been actually disbursed in favour of the Respondent No. 1. 5. It is submitted that adverse inference can be drawn against the Bank for non-production of necessary documents because there can be only two reasons for not producing : (1) there may not exist any such document; and (2) if any such document is produced, it would go against the petitioner Bank. 4. Having heard learned Counsels for the respective parties and having regard to the facts and circumstances of the case, we are prima facie of the opinion that the Respondent No. 1, a helpless widow aged about 71 has been harassed to the maximum by the petitioner Bank. In this petition, we are only examining the legality and validity of the order passed by the Civil Court below Exh.16 rejecting the application of the petitioner Bank. In this petition, we are only examining the legality and validity of the order passed by the Civil Court below Exh.16 rejecting the application of the petitioner Bank. We are concerned with the issue as to whether the suit is maintainable before the Civil Court or not, keeping in mind the provisions of the SARFAESI Act and, more particularly, Section 34 of the Act, which reads as under: “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” 5. However, this issue is no longer res integra. The Supreme Court has, in the case of Mardia Chemicals Limited (Supra), in Paragraph 51, in clear terms held as under: “51.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 their 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 (Supra) at pp. 141 and 144, a judgment of the learned single Judge where it is observed as follows in Para 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 are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials 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 relief is sought : ‘Adams vs. Scott, (1859) 7 WR (Eng) 213 (249). I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Rashbehary Ghose Law of Mortgages, Vol. II, Fourth Edn., page 784).” 6. The Supreme Court has also quoted with approval a Division Bench’s decision of Madras High Court in the case of A. Batcha Saheb vs. Nariman K. Irani and another, reported in AIR 1955 Madras 491, more particularly, Paragraph 8, which is reproduced hereinbelow: “8. We have no hesitation in observing that Section 69, T.P. Act is a drastic provision and places ‘bona fide’ mortgagors who have a real defence to any action on the mortgage, in a very disadvantageous and helpless position. Section 69 empowers the mortgagee, in whom the power of sale without the intervention of the Court is expressly conferred by the terms of the mortgage deed and where the properties are situated in certain important towns including the City of Madras, to sell after giving three months’ time in writing and calling upon the mortgagors to pay the principal sum; and when once the sale has been effected in exercise of such a power, Section 69(3) provides that the title of the purchaser shall not be impeached on the ground that no case had arisen to authorise the sale or that due notice was not given, or that the power was otherwise improperly or irregularly exercised, and the only remedy of a person who is damnified by an unauthorised or improper or irregular exercise of the power is to sue the mortgagee for damages. While therefore in a suit for a sale or foreclosure instituted on a mortgage, the defences open to the mortgagor can be raised and considered, no such opportunity is however available to the mortgagor, where the mortgagee purports to exercise the power of sale under S.69 without intervention of court. Even bona fide and substantial defences open to the mortgagor as to any pre-maturity of the sale and as to the correctness of the amount claimed by the mortgagee in pursuance of which he purports to sell and such other defences, as would disentitle the mortgagee from recovering the mortgage amount, cannot prevent the sale being proceeded with, unless by an order of Court in a suit instituted by the mortgagors. The present suits have therefore become necessary in order to prevent the mortgagees from seeking to sell the properties for the recovery of the amount which, according to the plaintiffs will not be the amount to which they will be legally liable.” 7. In Ramesh Chand Ardawatiya vs. Anil Panjwani, reported in (2003) 7 SCC 151 , the Supreme Court opined: “. . . . . Where there is a special tribunal conferred with jurisdiction or exclusive jurisdiction to try a particular class of cases even then the civil Court can entertain a civil suit of that class on availability of a few grounds. An exclusion of jurisdiction of the civil Court is not to be readily inferred.” 8. In Rajasthan State Road Transport Corporation and another vs. Bal Mukund Bairwa, reported in (2009) 4 SCC 299 , the Supreme Court opined: “...Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim ubi jus ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil Court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless barred by statute, either expressly or by necessary implication. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless barred by statute, either expressly or by necessary implication. The civil Court, furthermore, being a Court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil Court although it otherwise may not possess. For the said purpose, the Court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regad to the existence of the jurisdictional fact. It is also well settled that there is a presumption that a civil Court will have jurisdiction and the ouster of civil court’s jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil Court is sought to be barred under a statute, the civil Court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction.” 9. The position that emerges in view of the position of law is very clear. Civil Court definitely possesses jurisdiction to the extent that if the action of the secured creditor is found to be fraudulent or the claim of the secured creditor is found to be absurd and untenable, then under such circumstances civil Court can definitely look into the issue. In view of this position of law as explained by the Supreme Court, the case-law which has been relied upon by the learned Counsel for the petitioner Bank is not necessary to be discussed. 10. We are of the opinion that no error much less an error of law has been committed by the learned Civil Judge in passing the impugned order rejecting the application Exh.16 preferred by the petitioner Bank. 11. We find that the Bank has acted maliciously and has not come before this Court with clean hands. We are constrained to observe this, more particularly in light of the fact, that the order passed by the Civil Court below Exh.84 directing the Bank to produce certain documents has not been complied with and it appears that the Bank is deliberately avoiding production of the documents. We are constrained to observe this, more particularly in light of the fact, that the order passed by the Civil Court below Exh.84 directing the Bank to produce certain documents has not been complied with and it appears that the Bank is deliberately avoiding production of the documents. We can draw adverse inference in this regard against the Bank. The Bank has not been able to even prima facie show that there was actual disbursement of the amount in favour of the Respondent No. 1. It is difficult at this stage to outright discard the entire case of the poor widow who is suffering the ordeal of this litigation for no fault on her part. 12. We may refer to a judgment of the Supreme Court in the matter of Municipal Corporation, Faridabad vs. Siri Niwas, reported in (2004) 8 SCC 195 . Paragraph 15 of the judgment reads as under: “15. A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a Court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent.” 13. It is very clear that despite the directions by the Civil Court, the bank has withheld the evidence. They have also not come forward with any explanation or pointing out such other circumstances existing upon which such intentional non-production can be justified on some reasonable ground. 14. In any view of the matter, we are of the opinion that we would not like to interfere with the impugned order in exercise of our supervisory jurisdiction under Articles 227 and 226 of the Constitution of India. 15. 14. In any view of the matter, we are of the opinion that we would not like to interfere with the impugned order in exercise of our supervisory jurisdiction under Articles 227 and 226 of the Constitution of India. 15. For the reasons recorded in the judgment, the petition deserves to be rejected and the same is rejected with cost of Rs.15,000=00 to be paid by the petitioner Bank in favour of the Respondent No. 1, widow. Rule stands discharged. Interim relief granted stands vacated forthwith. 16. Having regard to the peculiar facts and circumstances of the case, we further deem it fit to direct the learned 5th Additional Senior Civil Judge, Vadodara to give top priority to the Regular Civil Suit No. 1023/2008 pending in its Court and see to it that the same is finally disposed of on or before 31st December 2011 in accordance with law without being influenced in any manner with any of the observations made in this judgment. P P P P P