JUDGMENT 1. - This order will decide SB Civil Misc. Stay Petition No. 17190/2010 filed in SB Civil First Appeal No.369/2010. 2. The brief facts of the case are that the present appellant M/s. Sarvodaya Suitings Ltd. A Public Ltd. Company filed a suit in the court of learned District and Sessions Judge, Bhilwara against the present respondent State Bank of India , Bhilwara, seeking the following reliefs: "1 Grant of a "Declaration with Decree" in favour of the plaintiff company against the defendant bank pronouncing the impugned derivative contracts described above at para 7 are null and void, illegal against the provisions of FEMA and violating the guidelines and circular instructions of RBI, against public policy and being of the nature of Wagering Contracts , be declared illegal, null and void, and not enforceable and that these contracts are not binding on the plaintiff company. 2 That permanent injunction be granted against the defendant bank providing so that the defendant bank shall not make any further debit entries in the cash credit No.10385818490/any other loan accounts of the plaintiff company and shall remove all the debit entries made by it in the regular cash credit limits/accounts/ facilities of the plaintiff company and to reinstate/ present/bring out the correct position of the plaintiff company s cash credit account No.10385818490 after removing /reversing all such derivative contracts related debit entries. 3 The defendant bank be ordered to be bound in such a manner that it shall not treat the plaintiff company as responsible for and bound by the said derivative contracts and that the defendant bank shall not proceed against the plaintiff company and shall not take any action against the guarantors of the company and that the defendant be obliged to maintain unrestricted use and continuity of the existing credit facilities sanctioned in favour of the company. Defendant bank be restrained from making any debit entries related to the impugned derivative contracts in the regular sanctioned cash credit limit/ account of the plaintiff company and remove the entries made in the past to set right the plaintiff company/s cash credit account. 4 Defendant bank be restrained by injunction restraining the defendant bank and their agent, servants and men from in any way mixing up the transactions, losses/profits of the derivative contracts with any other transactions or accounts. Defendant bank be restrained from making any recovery of the alleged derivative losses. 4 Defendant bank be restrained by injunction restraining the defendant bank and their agent, servants and men from in any way mixing up the transactions, losses/profits of the derivative contracts with any other transactions or accounts. Defendant bank be restrained from making any recovery of the alleged derivative losses. 5-Any other relief as may be apt and legally valid and may be considered necessary in the interest of the company by the Hon ble Court in its own discretion considering the facts and circumstances of the case and the Hon ble Court may be pleased to grant a decree order to this effect. It would be necessary and appropriate to grant the requested relief to the plaintiff company in the interest of justice, equity and good conscience. 6 An award be ordered with regard to the costs of the suit." 3. The respondent defendant filed an application under Order 7, Rule 11 Civil Procedure Code praying for the rejection of the plaint on the ground that the suit is barred by law and the learned Addl. District Judge, Bhilwara, in whose court the case was transferred for trial vide order dated 27.10.10 accepted the application filed by the respondent defendant under Order 7, Rule 11 Civil Procedure Code and dismissed the suit of the plaintiff appellant. 4. Aggrieved by that order the present appellant plaintiff filed SB Civil First Appeal No.369/2010 in this Court along with an application under Order 39. Rule 1 and 2/151 Civil Procedure Code praying that during the pendency of the present appeal and its final disposal, the respondent defendant may be directed not to debit any money in any other account of the appellant Company for the transactions relating to derivative contracts or any other appropriate order or direction which this Court may deem fit and proper in the facts and circumstances of the case. 5. The counsel for the respondent filed reply to the stay petition and pleaded that no prima facie case is made out in favour of the appellant and further denied this fact that the appellant would suffer irreparable loss or injury if the stay is not granted. 5. The counsel for the respondent filed reply to the stay petition and pleaded that no prima facie case is made out in favour of the appellant and further denied this fact that the appellant would suffer irreparable loss or injury if the stay is not granted. While making the additional pleas the respondent replied that the plaintiff himself vide letter dated 21.10.2008 has requested the Bank not to debit the adverse balance arising out of Forex Derivatives Transactions in the Cash Credit Account and to park the same in a separate current account. The appellant plaintiff has also requested the Bank to grant him a suitable long term credit facility at concessional rate of interest and he proposed to sanction Rs. 6.50 crores for the long term credit facility and sought an over draft limit of Rs. 6.50 crores for funding the adverse balances of foreign exchange derivatives contracts to be repaid by the plaintiff Company over a period of 120 months /10 years and thus he requested the respondent Bank to grant suitable long term credit facility at concessional rate of interest. 6. Vide another letter dated 04.03.2009 the plaintiff further requested that till such time working limits are disbursed the entire debit balance related to derivative transactions up to February 2009 may be parked into a separate account and on plaintiff s own request dated 04.03.2009 the respondent Bank opened a separate Account bearing A/c No.30700870985 and all the entries in the cash credit account relating to the derivatives transactions was transferred in this account and by letter dated 19.03.2009 the current overdraft limit facility upto Rs. 9.64 crore was granted to recover the losses transferred to this account in monthly instalments. The monthly instalments are debited in the cash credit account and are credited in this new account. The entries of profit and losses of the derivatives transactions started from 05.07.2007 when the first profit entry was credited in the cash credit account and thereafter, it continued in the Cash Credit Account upto 04th March 2009. The monthly instalments are debited in the cash credit account and are credited in this new account. The entries of profit and losses of the derivatives transactions started from 05.07.2007 when the first profit entry was credited in the cash credit account and thereafter, it continued in the Cash Credit Account upto 04th March 2009. After the dismissal of the suit by the impugned order, the plaintiff appellant further approached the Bank on 16th November, 2010 and requested for the similar type of facility as granted to him vide letter dated 19.03.2009 regarding the derivatives losses incurred from 01st April, 2009 and requested for recording the previous losses and the second losses regarding the derivative losses upto 1st April 2009 and the interest may be charged at the base rate and on plaintiff s request the entire derivative losses from 1st April 2010 have been parked in the New A/c No.31502173268. This account was opened on 16th November 2010 itself. 7. The respondent further pleaded in the reply that the matter relates to a simple matter of recovery of the loan by the Bank but the plaintiff appellant by clearly preventing a lengthy plan approached the learned trial court with the sole object to restrain the Bank from taking legal action as per law and it is submitted that it is not permissible under the law when the suit has rightly been rejected. 8. During the course of the argument, the counsel for the respondent filed another application under section 151 Civil Procedure Code and prayed in the application that the accounts/proceedings under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act of 2002 ) has been taken and a notice under section 13 (2) has been served upon the appellant and the guarantors. Therefore, the only remedy available to the appellant and the guarantors is under Chapter -III of the Act of 2002. 9. I have heard the learned counsel for both the parties. 10. Therefore, the only remedy available to the appellant and the guarantors is under Chapter -III of the Act of 2002. 9. I have heard the learned counsel for both the parties. 10. The counsel for the appellant submits that the learned trial court held that the suit is barred by law and simply on this basis the application under Order 7, Rule 11 Civil Procedure Code was allowed and the suit of the plaintiff appellant was rejected, whereas the appellant plaintiff never asked for any relief to stay the recovery proceedings of the Bank . On the other hand, the plaintiff appellant only prayed to grant the relief of declaration of the derivative contract as being of the nature of wavering contracts to be illegal, null and void and not enforceable and not binding on the plaintiff and further praying for injunction that the Bank shall not make any further debit entry in the cash credit of the A/c No. after removing of such derivative contract entries. 11. The counsel for the appellant submits that the relief of the declaration of the contract as void and correction of the facts which were made by the plaintiff for the loss arose out of the derivative contracts can only be granted by a civil court and the learned trial court erred in accepting the application under Order 7, Rule 11 Civil Procedure Code by misreading and misinterpreting the reliefs as prayed for by the plaintiff appellant. 12. The learned counsel for the plaintiff appellant contended that had there been any relief for granting injunction against the recovery proceedings, taken or to be taken against the plaintiff, there would have been a case of ousting the jurisdiction of civil court, otherwise it cannot be easily presumed that jurisdiction of civil court is barred. 13. The counsel for the appellant relied upon the following judgment in support of his contentions: Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn. [ (2009)8 SCC 646 ] : (2009 AIR SCW 6262). 14. 13. The counsel for the appellant relied upon the following judgment in support of his contentions: Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn. [ (2009)8 SCC 646 ] : (2009 AIR SCW 6262). 14. The learned counsel for the appellant further contended that the judgment of the learned Single Bench of this Court in State Bank of India, Bhilwara v. Sharda Spuntex Pvt. Ltd. [AIR 2010 Rajasthan 1] is per in curium because in that case the judgment of the Hon ble Apex Court reported in Nahar Industrial Enterprises Ltd. s case (supra), has not been considered and in ignorance of that judgment, the order in State Bank of India, Bhilwara s case (supra) was passed. 15. The learned counsel for the appellant further contended that the losses caused due to the derivative contracts does not come within the definition of the loan and therefore, the plaintiff does not come within the purview of borrower as defined in clause (b) of section 45 (a) of Reserve Bank of India Act, 1934 and this loss arising out of the losses of the derivative contract cannot be termed as loan and, therefore, it cannot bring the relation of the lender and the borrower relationship between the defendant and the plaintiff. The failure of making the payment of these losses amounts to failure of the Company to discharge the contractual debit to the Bank but cannot be termed as a wilful defaulter so as to take coercive measures to recover that amount. 16. In support of his argument learned counsel for the appellant relied on the following judgment of the Calcutta High Court in Hindusthan National Glass and Industries Limited & Anr. [WP No.7729 (W) of 2009 decided on 01.09.2009 : (2010 CLC 414 (Cal))]. 17. The learned counsel for the respondent contended that the order of the learned trial court is a legal one and in the light of the order of the learned trial court, no interim relief can be granted to the appellant plaintiff because by clever drafting, the plaintiff prayed to declare the contract entered upon by the plaintiff and the defendant as void, illegal and against the public policy, and not enforceable against the plaintiff appellant. 18. 18. The net result of the above prayers if granted by the court is that the losses arising out of the derivative contracts shall not be recoverable against the plaintiff appellant. And the powers of the Bank to recover such amount by legal way enforcing the right under the Act of 2002 or the recovery of debts due to Banks and Financial Institutions Act, 1993, no court can grant such a decree of restraining from taking any legal action under the provision of the law. 19. The counsel for the respondent contended that the relief claimed alone cannot be considered while deciding the application under Order 7, Rule 1 Civil Procedure Code but the entire facts should be considered. The plaintiff has not averred the essential facts constituting the fraud and by simply averring that on the assurance of the officers of the Bank the plaintiff Company entered into a contract, cannot be relied upon, it cannot appeal to a common man that Company will enter into an agreement merely on the basis of oral assurance and further contended that when on the request of the plaintiff himself the respondent Bank debited the entire balance relating to derivative transactions upto February 2009 in the separate account being No.30700870985 and further entire entries relating to derivative contract losses from 1st April 2010 have been parked in a new account bearing No.31502173268 then the entries of losses have acquired the character of the loan and, therefore, the relations of the lender and the borrower has come into an existence by these transactions and the plaintiff appellant was a consenting party for making such entries in a separate account and once above losses arose out of the derivative contract, has acquired the character of the loan and the parties have acquired the character of the borrower and lender, then there is no question of staying the proceedings of the recovery. 20. The learned counsel for the appellant submits that the facts of the case, as cited by the counsel for the appellant, in Nahar Industrial Enterprises Ltd. s case (supra), are different to that of the present case for the reason that only the question of the transfer of a civil suit from the civil court to that of Debt Relief Tribunal, was considered. It was not in dispute that the suit filed in the civil court is barred by law or not ? And, therefore, while not considering the above case, the judgment of this Court in State Bank of India, Bhilwara s case (supra) cannot be said to be in curium as the facts of the Nahar Industrial Enterprises Ltd. s case (supra) has no bearing upon the decision of State Bank of India, Bhilwara s case (supra). 21. Counsel for the respondent also contended that the facts of the case decided by the Hon ble Calcutta High Court in Hindustan National Glass and Industries Limited case (supra), is also different to that of the case in hand. 22. The learned counsel for the respondent further contended that the suit, as filed by the plaintiff, can be termed as a vexatious and merit-less suit and while deciding an application under Order 7, Rule 11 Civil Procedure Code, the entire pleadings of the suit should be considered. 23. I have considered the rival contentions of the parties and also perused the order of the learned trial court and the facts mentioned in the stay application as well as in the reply filed by the respondent. 24. As per the allegations of the plaintiff, he has entered in to an agreement on the persuasion of the officers of the respondent and, thereafter executed an agreement termed as derivative contract. As per his pleadings, this derivative contract was executed by him on misrepresentation of facts and by fraud played by the officers of the Bank and, therefore, it is void and not enforceable against the plaintiff. He has not averred this fact that after a loss of certain amount, he requested the respondent Bank to park this amount in a separate account and further grant him cash credit limit up to the extent of the loss incurred on the account of derivative contract. The plaintiff has not averred that what fraud or misrepresentation was made to believe, by the officers of the respondent Bank to declare that as void and to declare it as nonbinding on appellant, and thereby restrain the Bank from taking any other action in pursuance to that contract. 25. The plaintiff has not averred that what fraud or misrepresentation was made to believe, by the officers of the respondent Bank to declare that as void and to declare it as nonbinding on appellant, and thereby restrain the Bank from taking any other action in pursuance to that contract. 25. As per reply filed by the Bank, at the request of the appellant himself , separate accounts at separate times have been opened bearing different numbers and the loss arose out of the derivative contract have been parked separately in these accounts. 26. From the pleadings, it is clear that the foundation of the suit is that a contract was executed between the appellant and the respondent and further a loan transaction was executed to secure the amount of loss arose out of the derivative contract by the appellant as well as the respondent. On the above averments relief of declaring the contract to be void illegal and unenforceable against the plaintiff appellant amounts to a relief of restraining the respondent from taking any action for the recovery of the above loan. 27. After considering the averments as a whole, the trial court has clearly come to the conclusion that by clever drafting the plaint, the plaintiff prayed for the injunction against the recovery of any amount which became due on account of the loss arising out of the derivative contract, when on the application of the plaintiff himself, the respondent opened two separate accounts to transfer the loss of the derivative contract into a separate account, and the current over drafting loan facility was granted to recover the loss transferred to that account in monthly installments and further all the transactions in the different accounts are rooted to the cash credit account then it cannot be said that the amount so transferred in the above accounts, cannot be termed as loan and it does not create the relation of lender and the borrower. 28. 28. Without commenting on the merits of the case, after considering all the facts and circumstances of the case, and after going through all the authorities as cited by the learned counsel for the parties, in my considered view, no prima facie case is made out to direct the respondent defendants, during the pendency of the present appeal and its final disposal, not to debit any money in any other account of the appellant company, for the transactions relating to derivative contract, because this being transferred in other accounts on the request of the appellant himself, and no case of irreparable loss or balance of convenience is also made out in favour of the appellant plaintiff. 29. Concurrent Bench of this Hon ble Court, has taken the view on almost similar facts, that such suit is in essence a suit, to debar Bank from making recovery through legal recourse, which is not permissive and is barred. The judicial discipline requires that finding given by concurrent Bench shall be honoured. Therefore, also this is not a fit case to grant injunction, pending appeal. 30. Therefore, the stay application filed by the appellant under Order 39, Rules 1 and 2 /151 Civil Procedure Code is dismissed.Petition dismissed. *******