JUDGMENT VINOD K. SHARMA, J. ( 1. ) THIS application under Order 39 Rule 1 and 2 of Code of Civil Procedure, read with Order XIV Rule 8 of has been moved by the plaintiff/applicant, with the prayer for grant of interim injunction restraining the first respondent/first defendant Indian Bank, from auctioning the residential property of the plaintiff/ applicant, detailed in the schedule to the Judges? summons under SARFAESI Act or in any other manner whatsoever pending disposal of the suit. ( 2. ) THE property in dispute is admittedly mortgaged with the bank as security. In exercise of powers under the , 2002, the property was to be auctioned on 17.8.2011. The Hon?ble Division Bench of this Court in W.P. No. 17682 of 2011 stayed the auction. The writ petition filed by the plaintiff/applicant was subsequently dismissed, on the ground that the disputed question of facts were raised, which cannot be gone into in the writ jurisdiction. The liberty was also given to the plaintiff/ applicant to work out his remedies. ( 3. ) THE case of the plaintiff/applicant, is that he along with others stood as guarantors to the Union Bank of India to secure the financial limits/loan advanced to the second respondent. THE case set up by the plaintiff/applicant is that the plaintiff/applicant stood as guarantor, keeping in view of the fact that 12 others also stood as guarantors, therefore he was under the impression that his property could not be auctioned, to recover the amount from the principal debtor, in view of the other sufficient guarantees with the defendant No. 1. ( 4. ) IT is not disputed by the plaintiff/applicant, that equitable mortgage was created on the property by depositing the title deeds and the memorandum of Deposit of Title Deeds was also registered with the S.R.O., Alandur on 29.8.2007 vide Doc. No. 3303 of 2007. The plaintiff/applicant for the first time was informed on 27.1.2011, about the overdue loan in the loan account of the second respondent/defendant i.e. Principal debtor. ( 5. ) THE challenge in the suit to recovery of amount from the plaintiff/applicant, is that Mr. No. 3303 of 2007. The plaintiff/applicant for the first time was informed on 27.1.2011, about the overdue loan in the loan account of the second respondent/defendant i.e. Principal debtor. ( 5. ) THE challenge in the suit to recovery of amount from the plaintiff/applicant, is that Mr. G. Billy Graham and his wife had filed a Civil Suit No. 271 of 2011, and in the said suit, the first respondent/Indian Bank released the immovable properties of the respondents 3, 4 and 5, inspite of the fact that they were directors of the second respondent Company. THE respondents 6 to 14, who were guarantors also discharged. ( 6. ) THE suit is based on the allegation of fraud against the respondents which read as under: "13. THE plaintiff submits that the terms and conditions in the sanction ticket dated 8.12.2006 from Bank to the company stipulated that the company should opt for take over of City Bank loan to the Company by the 1st defendant Bank along with the collateral security created by the Company over its office premises at the rear of the second floor in Door Nos. 42 to 44, New No. 73, Arcot Road, Kodambakkam, Chennai-600 024, described in schedule-13 hereunder, by way of equitable mortgage in favour of City Bank, as one of the conditions and based on which stipulation, the 16th and 17th defendants agreed to stand as guarantors to the company and 16th and 17th defendants created Equitable Mortgage on their house property. Defendants 3 to 5, in collusion with the Bank?s officials sold it to K.L. Srinivasalu, the 18th defendant herein, on 3.11.2010 under sale deed of the said date, registered as Document No. 3783 of 2010, at Kodambakkam SRO, for a ludicrously low price of Rs. 80,00,000/- (Rupees Eighty lakhs only) for discharging from the sale price the loan amount of Rs. 56,00,000/- to City Bank. THE 18th defendant is none other than the brother of K.L. Vasanthakumar, the 3rd defendant. THE attesting and identifying witnesses to the said sale deed are K.L. Vasanthakumar (3rd defendant) and R. Sankara Ramasubramanian (4th defendant). THE market value of the said property was more than Rs. 1.25 crores (one crore and twenty five lakhs) as on the date of sale. THE attesting and identifying witnesses to the said sale deed are K.L. Vasanthakumar (3rd defendant) and R. Sankara Ramasubramanian (4th defendant). THE market value of the said property was more than Rs. 1.25 crores (one crore and twenty five lakhs) as on the date of sale. Even though the sale deed mentions that loans due to some of the friends of defendants 3 to 5 and 15 had been paid from the sale price, they are only fictitious loans. THE said sale had been brought about with the mala fide intention to shield the property of the company from any future claim by the plaintiff against the perpetrators of the fraud and it is a sham and nominal document. 14. THE plaintiff submits that even assuming that the above property of the company need not have been given as collateral security (EM) to the 1st defendant Bank and that its market price was only Rs. 80 lakhs as on 3.11.2010, the balance of Rs. 24 lakhs after paying the loan amount of Rs. 56 lakhs to City Bank ought to have been paid to the 1st defendant Bank towards the loan account of the company. But the same was not done and this shows that there was no bonafidesin the sale. When the sanction ticket from the Bank stipulates that the company should opt for take over of City Bank loan and transfer of the E.M. over the above property, from City Bank to the 1st defendant Bank, the sale thereof shows the malafideson the part the officers of the Bank, the company and defendants 3 to 5, 15 and 18 and the collusion among them to shield it from the plaintiff and to defraud the plaintiff. THE manner and method of permitting the Principal Borrower to pay a sum, based on the self serving valuation report without following due process of selling a property as has been followed in similar cases like advertisement, calling tenders, auctioning etc were not followed. THErefore, it was a clandestine dealing between 2nd defendant and 1st defendant, without any information to the plaintiff. THErefore, the act of deception and fraud is manifest and obvious. 15. THE plaintiff submits that the 3rd defendant also fraudulently and with malafideintention executed a deed of settlement on 9.3.2010 (Doc. THErefore, it was a clandestine dealing between 2nd defendant and 1st defendant, without any information to the plaintiff. THErefore, the act of deception and fraud is manifest and obvious. 15. THE plaintiff submits that the 3rd defendant also fraudulently and with malafideintention executed a deed of settlement on 9.3.2010 (Doc. No. 815/10 Kodambakkam SRO) in favour of the 18th defendant (K.L. Srinivasalu), his brother, settling his property which is the front portion in the second floor in premises bearing door Nos. 142 to 144, New Door No. 73, Arcot Road, Kodambakkam, Chennai-600 024, more particularly described in Schedule 14 hereunder, which is contiguous to the Schedule 13 property of the company, in collusion with the defendants 4, 5, 15 and 18. THE defendants 4 and 5 are the attesting and identifying witnesses in the said document. THE property is valued at Rs. 40 lakhs in the settlement deed, whereas its market value on that date was more than Rs. 1.50 crores. THE settlement had been brought about by them with the malafide intent to shield it from any future claim of the plaintiff against 3rd defendant as one of the Principal Officers of the 2nd defendant Company for the fraud committed by him. 16. THE plaintiff submits that the settlement deed dated 9.3.2010(Doc. No. 815 of 2010) and the sale deed dated 3.11.2010 (Doc. No. 3783 of 2010) mentioned above had been brought about by defendant Nos. 3 to 5, 15 and 18 in collusion with each other with the fraudulent and malafideintention to screen the said property from the plaintiff and to fasten the liability due to the 1st defendant Bank from the 2nd defendant company, on the plaintiff?s house property." The learned counsel for the applicant/plaintiff placed reliance on the judgment of the Honourable Supreme Court in the case of State of Madhya Pradesh v. Kaluram AIR 1967 SC 1105 (V 54 C 231), to contend that under Section 141 of the Contract Act, the plaintiff stood discharged of his liability to the extent of the security lost, and once the security lost by the defendant was more than the amount due from the defendant No. 2, the liability of the plaintiff/applicant also stood discharged. ( 7. ) THE Hon?ble Supreme Court in the judgment referred to above was pleased to lay down as under: "11. ( 7. ) THE Hon?ble Supreme Court in the judgment referred to above was pleased to lay down as under: "11. Kaluram by executing the surety bond had undertaken to discharge the liability arising out of any act, omission, negligence or default of the forest contractor. THE surety Kaluram contends that because the State lost or parted with the security he stood discharged. By Section 140 of the Indian Contract Act, 1872, where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor; and by Section 141 it is provided: "A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and, if the creditor loses, or, without consent: of the surety, parts with such security, the surety is discharged to the extent of the value of the security." THE State had as already observed, a first charge over the goods: the State was also entitled to prevent the goods from being removed without payment of the amount of instalments due. THE expression "security" in Section 141 is not used in any technical sense: it includes all rights which the creditor had against the property on the date of the contract. THE surety is entitled on payment of the debt or performance of all that he is liable for, to the benefit of the rights of the creditor against the principal debtor which arise out of the transaction which gives rise to the right or liability: he is therefore on payment of the amount due by the principal debtor entitled to toe put in the same position in which the creditor stood in relation to the principal debtor. If the creditor has lost or has parted with the security without the consent of the surety, the latter is, by the express provision contained in Section 141, discharged to the extent of the value of the security lost or parted with." ( 8. If the creditor has lost or has parted with the security without the consent of the surety, the latter is, by the express provision contained in Section 141, discharged to the extent of the value of the security lost or parted with." ( 8. ) THE learned counsel for the plaintiff/applicant also placed reliance on the judgment of the Hon?ble Supreme Court in the case of the State Bank of Saurashtra v. Chitranjan Rangnath Raja AIR 1980 SC 1528 : (1980) 4 SCC 576 , to contend that when pledged goods are lost due to the negligence of the bank, the surety stands discharged to the extent of the security lost in terms of Section 141 of the Contract Act. The Hon?ble Supreme Court was pleased to lay down as under: "19. It is difficult to entertain a contention that Section 141 would not be attracted and the surety would not be discharged even if it is found that a creditor has taken more than one security on the basis of which advance was made and the surety gave personal guarantee on the good faith of other security being offered by the principal debtor which itself may be a consideration for the surety offering his personal guarantee and the creditor by its own negligence lost one of the securities. Acceptance of such a contention would tantamount to putting a premium on the negligence of the creditor to the detriment of the surety who is usually described as a preferred debtor. Should a Court by its construction of such letter of guarantee enable the creditor to act negligently and yet be not in any manner accountable? Was the guarantee against proper performance of the contract evidencing advance of loan and methods of its repayment, or a guarantee covering Bank?s utter disregard of its responsibility or to use the words of the High Court, the Bank?s utter negligence in failing to exercise the care of a prudent man which one would expect in management of one?s own affairs?" ( 9. ) THE reliance was also placed on the judgment of the Hon?ble Supreme Court in the case of AmritLal Goverdhan Lalan v. State Bank of Tranvancore and Others AIR 1968 SC 1432 wherein the Hon?ble Supreme Court was pleased to lay down that when creditor loses a part of the surety due to negligence, the surety is discharged to that extent. ( 10. ) THE learned counsel for the plaintiff/applicant thereafter placed reliance on the judgment of this Court in the case of J. Hargopal Agarwal and Another v. THE State bank of India, Madras and Others AIR 1976 Mad 211 wherein it was reiterated, that Section 141 of the Contract Act deals with the protection of a guarantor and reduction of his liability due to loss of security. The reliance was also placed on the judgment of the Hon?ble Supreme Court in the case of PravashChandra Dalui and Another v. Biswanath Banerjee and Another AIR 1989 SC 1834 , to contend that to attract the plea of waiver, there must be a voluntary and intentional relinquishment of known right or such conduct as warrants the inference of the forsaking the assertion of a right at the proper opportunity. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. ( 11. ) THE contention of the learned counsel for the plaintiff/applicant was that in the absence of any material showing voluntary waiver of right, the security of the plaintiff/applicant cannot be put to auction by the defendant, by violating provisions of Section 141 of the Contract Act. ( 12. ) THE learned counsel for the plaintiff/applicant also placed reliance on the judgment of this Court in the case of Indian Bank, Madras v. S. Krishnaswamy AIR 1990 Mad 115 wherein this Court was pleased to lay down that when fresh agreement is entered into between Government and Mill without the knowledge of the surety, surety stands discharged due to novation of the contract. This contention of the learned counsel for the plaintiff/applicant was rebutted by the learned senior counsel for the first respondent/Bank by placing reliance on the judgment of the Hon?ble Supreme Court in the case of H.R. Basavaraj (dead) by his L.R.s. and Another v. Canara Bank and Others LNIND 2009 SC 1936 wherein the Hon?ble Supreme Court was pleased to lay down as under: "5. The learned counsel for the appellants also sought to argue for the discharge of sureties that the agreement executed was between JKNP, KPP and the Bank had the effect of as if sanctioning new loans to JKNP but retaining KPP as the guarantor. In such circumstances, the appellant guarantor cannot be held liable for the loan. The learned counsel for the appellants also sought to argue for the discharge of sureties that the agreement executed was between JKNP, KPP and the Bank had the effect of as if sanctioning new loans to JKNP but retaining KPP as the guarantor. In such circumstances, the appellant guarantor cannot be held liable for the loan. But the learned counsel for the appellants had failed to produce any evidence on behalf of the appellant to satisfy the Court in support of his argument. Instead they contended that the bank was- in possession of such documents and was suppressing it. It is highly unimaginable that when parties are entering into contracts for the purpose of seriously conducting some businesses, that there would not be multiple copies of the executed agreement or atleast one copy with either of the appellants. Thus, this contention of the appellants does not inspire any confidence. We therefore, find no difficulty in rejecting the same. As the respondent has rightly contended that in view of the waiver of rights by the guarantor, there can be no waiver of liability in exercise of such rights. The observations of this Court in PravashChandra Dalui v. Biswanath Banerjee (supra) at Para 21 might be useful to recollect at this point of time. It runs as follows: "The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity." 6. An examination of the agreement executed between the appellant basavaraj (since deceased) and the Bank would clearly show it to be one of a continuing guarantee. Section 129 of The Indian Contract Act, 1872 (hereinafter referred to as "the Act") defines a continuing guarantee as "A guarantee which extends to a series of transactions is called a "continuing guarantee". Section 130 of the Act says that "A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor." A reading of the agreement clearly shows that the guarantee was to continue to all future transactions except when the guarantor disclaimed from his liability through a written statement. Section 130 of the Act says that "A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor." A reading of the agreement clearly shows that the guarantee was to continue to all future transactions except when the guarantor disclaimed from his liability through a written statement. The deed also clearly mentions that while between the guarantor and borrower the guarantor is only a surety; yet between the bank and the guarantor, the surety is the principal debtor and his liability would be co-extensive to that of the borrower. Accordingly, the guarantor himself waived off his rights under Chapter VIII of the Act which is conferred on a surety. This Court is in respectful agreement with the decision of Karnataka High Court in the case of T. Raju Shetty v. Bank of Baroda AIR 1992 Kant 108 whereby the High Court held that in surety agreements, the surety can waive his rights available to him under the various provisions of Chapter VIII of the Act. It is in line with log established precedents that anyone has a right to waive the advantages offered by law provided they have been made for the sole benefit of an individual in his private capacity and does not infringe upon the public rights or public policies. This can be inferred from a reading of the Halsbury?sLaws Of England, Vol. 8 3rd Edn. at page 143 which reads as follows: "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it is shown that such an agreement is in the circumstances of the particular case contrary to public policy." This principle was reiterated in LachooMai v. Radhey Shyam (1971) 1 SCC 619 . 7. On the principles of continuing guarantee, the position was cleared by a decision of this Court in SitaRam Gupta v. Punjab National Bank and Others (2008) 5 SCC 7 (1) whereby it was held that it was not open to a party to revoke a guarantee when he had agreed to it being a continuing one and thus would be bound by the terms and conditions of the agreement executed at the time of entering into the guarantee. In the present facts and circumstances, we, therefore, do not find any difficulty in affirming the concurrent findings of the High and of the trial Court on the point that the agreement executed for the purpose of a continuing liability despite the variation of terms of the contract and in the absence of a specific written document by Basavaraj (since deceased) revoking the guarantee, the guarantee stands and the legal representatives of the deceased are liable to repay the loan." ( 13. ) ON consideration, I find force in the contention raised by the learned senior counsel for the first respondent/Bank. The reading of the deed of guarantee shows that the plaintiff/applicant waived his right to claim the benefit available to him under Section 141 of the Indian Contract Act, 1872. ( 14. ) CLAUSE 4 of the Guarantee deed executed by the plaintiff/applicant reads as under: "4. The Guarantor(2) hereby consent/s to the Bank making any variance that it may think fit in the terms of the contract with the Borrower, to the Bank accepting additional or collateral security of any kind determining, enlarging or varying any credit to the borrower or making and composition with the borrower or promising to give borrower time or not to sue the borrower and to the Bank parting with any security it may hold for the guaranteed debt. The guarantor(s) also agree/s that he/she/they shall not be discharged from his/her/their liability by the Bank releasing the Borrower or by any act or omission of the Bank the legal consequence of which may be to discharge the Borrower or by any act of the Bank which would but for this present provision, be inconsistent with his/her/their rights as guarantor(s) or by the Bank?s omission to do any act which but for this present provision, the Bank?s duty to the Guarantor(s) would have required the Bank to do. Though as between the Borrower and the Guarantor(s) he/she/they is/are guarantor(s) only, the guarantor(s) agree/s that as between the Bank and the guarantors), he/she/they is/are debtor(s) jointly with the Borrower and accordingly he/she/they shall not be entitled to claim the benefit or legal consequence of any variation in the terms of the contract and to any of the rights conferred on a guarantor by Section 133 , 134 Section 133 , 134 , 135, 139 and 141 of the Indian Contract Act, 1872." The reading of Clause 4 reproduced above, shows that there was voluntary and intentional relinquishment of known right by the plaintiff/applicant and therefore, in view of the judgment of the Hon?ble Supreme Court in the case of H.R. Basavaraj (dead) by his L.R.s. and Another v. Canara Bank and Others (supra), the plaintiff/applicant cannot claim benefit of discharge, under Section 141 of the Indian Contract Act. ( 15. ) SECTION 34 of the SARFAESI Act, 2002 bars the jurisdiction of the civil Court, to deal with the matters filed under the Act, and further stipulates that no injunction can be granted by any Court or other authority in respect of any action taken or to be taken in pursuance to the powers conferred by or under the Act. ( 16. ) IN order to overcome the question of maintainability of the suit and the present application, the learned counsel for the plaintiff/applicant placed reliance on the judgment of the Hon?ble Supreme Court in the case of MardiaChemicals Ltd. v. Union of INdia (2004) 4 SCC 311 , wherein the Hon?ble Supreme Court was pleased to lay down 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 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 recognized 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. We find such a scope having been recognized 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: "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. 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: Adamsv. Scott. 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 Ghose, Rashbehary: Law Of Mortgages, Vol. II, 4th Edn., p. 784)." The learned counsel for the plaintiff/applicant also placed reliance on the judgment of the Hon?ble Supreme Court in the case of NaharIndustrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn. (2009) 8 SCC 646 : (2009) 8 MLJ 701 to contend that the jurisdiction of the civil Court is plenary in nature, and the Court is entitled to decide the respective claims of the parties in a suit. In the absence of express ouster by the Statute or by necessary implication therefrom, civil Courts has the jurisdiction to try all types of suits. ( 17. ) ON consideration, I find no force in this contention. Clause 34 of SARFAESI Act specifically bars jurisdiction of the civil Court to deal with the questions arising under the said Act. Therefore, judgment in the case of NaharIndustrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn. (supra) has no application to the facts of this case. ( 18. ) ON consideration, I find no force in this contention. Clause 34 of SARFAESI Act specifically bars jurisdiction of the civil Court to deal with the questions arising under the said Act. Therefore, judgment in the case of NaharIndustrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn. (supra) has no application to the facts of this case. ( 18. ) AS regards the judgment of the Hon?ble Supreme Court in the case of MardiaChemicals Ltd. v. Union of India (supra) is concerned, this also cannot advance the case of the plaintiff/applicant, as the allegation of fraud are not with regard to creation of security by the plaintiff/applicant, but with regard to action of the bank in discharge and disposing of certain other securities. This right stood waived by the plaintiff/applicant in terms of Clause 4 of the deed of Guarantee. The claim of the first respondent/Bank cannot said to be so absurd to give jurisdiction to the civil Court to deal with the matter, inspite of specific bar under Section 34 of the SARFAESI Act nor the allegations of fraud are such which can give jurisdiction to civil Court to interfere with exercise of powers under the SARFAESI Act. ( 19. ) IT is well settled law that the Court cannot grant temporary injunction restraining the person from instituting any proceedings, which the person is otherwise entitled to, even in exercise of inherent power. ( 20. ) THE Hon?ble Supreme Court in the case of Cotton Corporation of India v. United Industrial Bank AIR 1983 SC 1272 : (1983) 4 SCC 625 was pleased to lay down as under: "THE Court can in appropriate cases grant temporary injunction in exercise of its inherent power in cases not covered by Order 39, Code of Civil Procedure. But inherent power of the Court cannot be invoked to nullify or stultify a statutory provision. THErefore, while exercising this inherent power, the Court should not overlook the statutory provision, such as Section 41 (b), which clearly indicates that injunction to restrain initiation of proceeding in a superior Court cannot be granted." The learned counsel for the plaintiff/applicant also contended that the property mortgaged to the defendant No. 1 is residential house of the plaintiff/applicant and cannot be put to auction. ( 21. ( 21. ) THIS plea again is misconceived as admittedly, that house has been mortgaged as security for the loan, and the defendant/bank has statutory right under the SARFAESI Act, to proceed against security to recover the amount due. Furthermore, sufficient safeguards are provided under the Act, to challenge the auction therefore, it cannot be said that the plaintiff/applicant has prima facie case, in his favour to maintain the application for grant of temporary injunction restraining the bank from recovering the amount under SARFAESI Act or by other process of law. ( 22. ) CONSEQUENTLY, finding no merit in this application it is ordered to be dismissed. But no order as to cost.