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2012 DIGILAW 178 (GAU)

Panna Lal Bhansali v. Axis Bank Ltd.

2012-02-09

BIPLAB KUMAR SHARMA, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT P.K. Saikia, J. 1. This appeal is directed against the Judgment dated 6.4.2011, passed by the Civil Judge. No. 1, Kamrup. Guwahati in Title Suit No. 8/2010 and Decree drawn thereon dismissing the said suit on the ground that Court, entrusted to adjudicate such a dispute has no jurisdiction over the same in view of the prohibition, imposed by Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "the SARFAESI" Act). Being aggrieved by the aforesaid Judgment and Decree, the appellant prefers this appeal on the grounds stated in the memo of appeal. The case of the plaintiff as emerges from the his pleading, in short is that the property which is more particularly described in the Schedule A to the plaint was originally owned by defendant No. 7. It was subsequently purchased by defendant Nos. 2 to 4. The defendant No. 5, M/s. More Divinity, is a firm having its office at Shaktigarh, G.S. Road, Gauhati whereas the defendant Nos. 2 to 4, being the natural persons, are the members of the firm stated above. In order to narrate and appreciate the dispute before us well, the property, described in Schedule A, would be referred to as suit property whereas the appellant and respondents in T.S. No. 8/2010 would be described hereinafter as plaintiff and defendants respectively. 2. The defendant Nos. 2 to 4 approached the plaintiff through the defendant No. 7 and requested him to purchase the suit property. The plaintiff there upon made an inquiry to know if the suit property is encumbered in any manner whatsoever. Such an inquiry, however, led him to the conclusion that the property aforesaid was free from encumbrances of any sort for which the plaintiff proposed to purchase the same for a consideration of Rs.15.00 lacs only. Said proposal was accepted by the defendant Nos. 2 to 4 as well. 3. Pursuant to such an agreement, 3.3.2006, the plaintiff made an advance payment to the tune of Rs.10.00 lacs to those defendants in partial satisfaction of the agreement, entered between them. On 27.3.2006, the defendant Nos. 2 to 4 executed a registered deed of general power of attorney in favour of the plaintiff authorizing him to manage the suit property. 3. Pursuant to such an agreement, 3.3.2006, the plaintiff made an advance payment to the tune of Rs.10.00 lacs to those defendants in partial satisfaction of the agreement, entered between them. On 27.3.2006, the defendant Nos. 2 to 4 executed a registered deed of general power of attorney in favour of the plaintiff authorizing him to manage the suit property. In the said power of attorney, it had further been stated that the defendants already agreed to sell the suit property in favour of plaintiff. Soon thereafter, the plaintiff put some persons in the suit property as being the tenants under him. 4. In course of time, defendant Nos. 2 to 5 also executed another general power of attorney in favour of the defendant No. 6 authorizing him to execute a sale deed in respect of the suit property in favour of the plaintiff. In the mean time, the defendants procured necessary permission from the Guwahati Metropolitan Development Authority (in short "GMDA") for affecting the sale of suit property. During the intervening period, the plaintiff also came to know that the suit property which was leased out to State Bank of India, Dispur Branch, was released from the charge, created on it, on repaying all the outstanding dues. 5. Sometime thereafter, on 6.5.2007, plaintiff paid the defendants the remaining amount of Rs.5.00 lacs for which the defendants executed a registered sale deed in his favour on 15.5.2007 making thereby the plaintiff the rightful owner of the suit property. In due course, the plaintiff also got his name mutated in the relevant record of right showing him as owner of the suit property following which he also started paying land revenue in respect of property in question. The authority, concerned, too issued him a Kucha Patta as well. 6. But on 3.3.2009, the defendant No. 1 most illegally served the tenants under the plaintiff who are in occupation of the suit property with notices under Section 13(4) of the SARFAESI Act, 2002 whereby and where under, the defendant-Bank informed the tenants of the plaintiff that the Bank had taken over the possession of the property in question. On being questioned, the defendant No. 1 had informed him that the defendant Nos. 2 to 5 took a loan amounting to Rs.59,16,995.02 from the defendant No. 1 on creating a mortgage over the suit property in favour of the defendant No. 1. 7. On being questioned, the defendant No. 1 had informed him that the defendant Nos. 2 to 5 took a loan amounting to Rs.59,16,995.02 from the defendant No. 1 on creating a mortgage over the suit property in favour of the defendant No. 1. 7. However, the defendant Nos. 2-5 allegedly defaulted in repaying the loans, for which defendant Bank served the persons in occupation of the suit property with notices under Section 13(4) of the SARFAESI Act, 2002 and also published notice in the local news paper, namely "The Assam Tribune" dated 5.6.2009 under Section 8(1) of the Security Interest (Enforcement) Rules, 2002 intimating/cautioning the borrowers of the Bank in particular and the public in general not to deal with such property as an amount to the tune of Rs.59,16,995.02 together with interest thereon remained outstanding from the defendant Nos. 2 to 5. 8. It is also the case of plaintiff that before issuance of notice under Section 13(4), a notice under Section 13(2) of the SARFAESI Act needs to be served on the concerned party(s). But in our instant case, the defendant No. 1 did not serve him or the tenants under him with such a statutory notice which totally deprived the plaintiff from making necessary representation to the authority, entrusted to look into such grievances, in order to have his grievance redressed. Plaintiff went on to say that the charge which defendant Nos. 2 to 4 created on the suit property on 14.10.2006, was out and out fraudulent one inasmuch as same was created solely with the intention of defeating legal right of the plaintiff which he duly purchased from the owners thereof on the strength of registered sale deed executed on 15.5.2007. 9. He, therefore, filed the suit, T.S. No. 8/2010 being number of the suit, before the competent Civil Court seeking amongst others, a decree (1) declaring his title over the suit property, (2) confirming his possession thereon, (3) permanent injunction restraining the defendants, their heirs and agent from interfering with right over the suit property, (4) compensation amounting to Rs.80.00 lacs as well as a decree declaring the mortgage, entered in to between the defendant No. 1 and defendant Nos. 2 to 4 as void and illegal. 10 Summons of the suit was served upon the defendants. 2 to 4 as void and illegal. 10 Summons of the suit was served upon the defendants. The defendant No. 1 entered appearance and contested the suit having filed a written statement while other defendants allowed the suit to precede ex parte. The contesting defendant in its written statements alleged that the suit is not maintainable, the suit is barred by Section 34 of the SARFAESI Act, the same is also barred by limitation as well, suit is bad for not properly valued and stamped, it is also bad for misjoinder of parties inasmuch as the defendant No. 1 has wrongly been impleaded therein as a party. 11 His further case was that the mortgage in question was properly executed by the owners thereof in favour of the defendant Bank on obtaining a loan tune of Rs.59,16,995.02. However, despite there being a valid mortgage in favour of the defendant No. 1, plaintiff most illegally chose to purchase such an encumbered property on the strength of fraudulent sale deed and on the basis of such a fraudulent sale deed which was obviously executed by the defendant Nos. 2 to 7 in collusion with plaintiff, the later also instituted a false and frivolous suit against all the defendants seeking reliefs as aforesaid. 12. In order to highlight the collusiveness between the plaintiff and the other defendants, it has also been pointed out that the plaintiff never made any inquiry to know the status of the suit property from the defendant Bank in whose custody the title deeds pertaining to the suit property were there at all the relevant time. This is not only the violation of duty imposed by Section 53, T.P. Act on the buyer of the properties but is an emphatic testimony to the fact that the sale deed in question was executed quite fraudulently. The fact that the property worth more than cores of rupees was said to have been purchased for a mere Rs.15.00 lacs makes such an inference almost inevitable. 13. The fact that the property worth more than cores of rupees was said to have been purchased for a mere Rs.15.00 lacs makes such an inference almost inevitable. 13. Here, it is worth noting that in its W.S., the defendant No. 1 set up counter claims against the claim, made by the plaintiff in the suit, above and requested the trial Court inter alia to grant the decrees cancelling (1) the general power of attorney, (2) the agreement of sate, and (3) the sale deed dated 15.5.2007, etc, contending that those documents were fraudulently brought into existence by the plaintiff and other defendants in the T.S. No. 8/2010. The contesting defendant, therefore, submitted the Trial Court to dismiss the suit with all the cost incurred or likely to be incurred in defending or prosecuting its claims. 14. On the basis of the assertions, made in the pleadings of the parties and also on the basis a petition, filed under Order 14 Rule 2 read with Section 9, C.P.C. the learned Trial Court has framed a preliminary issue on the question of law. Issue so framed reads as follows: (i) Whether the jurisdiction of this Court to try the suit is barred under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002? 15. The learned Trial Court after hearing the arguments, advanced by the parties and also on the perusal of various decisions, placed before it by the parties thereto, came to the conclusion that the suit in question is not maintainable in view of prohibition, imposed by Section 34 of the SARFAESI Act which debarred the Civil Court from exercising jurisdiction over the matters, covered by the Act, aforesaid and hence, it dismissed suit on contest, however, without cost. 16. Being aggrieved by the aforesaid Judgment and Decree, the plaintiff come up with the present appeal assailing the same on the grounds, mentioned in the memo of appeal. 16. Being aggrieved by the aforesaid Judgment and Decree, the plaintiff come up with the present appeal assailing the same on the grounds, mentioned in the memo of appeal. However, the main grounds on which such a judgment was assailed are: (i) The learned Trial Court erred both in law and fact; (ii) The decision of the learned Trial Court that the jurisdiction of Civil Court is barred under the SARFAESI Act is perverse and therefore, liable to be set aside; (iii) The learned Trial Court fails to appreciate fact that the suit in question was filed neither under Section 13(2) nor under Section 13(4) of the Act to invite the application of Section 34 of the aforesaid Act to such a suit; (iv) The learned Trial Court fails to take note of the fact none of the reliefs, sought for the suit in question, can effectively be granted by the Tribunal constituted under the SARFAESI Act; (v) The learned Trial Court fails to consider the fact that none of the matters, covered by the said suit, falls within the jurisdiction of the Tribunal aforementioned; (vi) The learned Trial Court could not appreciate the ratio laid down by the Hon'ble Apex Court in the case of Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 ; (vii) The learned Trial Court also fails to consider the ratio laid down by the Hon'ble Apex Court in the case of Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646 . 17. Further case of the appellant was that by dismissing the suit aforesaid, the learned Trial Court had closed for him forever all the doors of Court of justice to get his most genuine grievance redressed. In dismissing the suit as aforesaid, learned Trial Court also denied him the protection provided by Section 53A and Section 56 of the Transfer of Property Act. For aforesaid reasons, the learned Counsel for the appellant has urged this Court to set aside the Judgment of the Trial Court as well as the decree drawn thereon. 18. On the other hand, the learned Counsel Mr. Kalyan R. Sarana, Mr. Sandeep Chanda, Mr. Madhuriya Phukan and Mr. For aforesaid reasons, the learned Counsel for the appellant has urged this Court to set aside the Judgment of the Trial Court as well as the decree drawn thereon. 18. On the other hand, the learned Counsel Mr. Kalyan R. Sarana, Mr. Sandeep Chanda, Mr. Madhuriya Phukan and Mr. S. Chanda have vehemently argued that the Trial Court by dismissing the suit on holding that it had no jurisdiction to try the same in view of the prohibition, contained in Section 34 of the Act, the Trial Court committed no mistake, whatsoever. Quite contrary to it, by dismissing the suit in question, learned Trial Court had done exactly what law expects of it to do, for, subject matters in dispute in T.S. No. 8/2010 are ones which undeniably fall with the domain of the Tribunal, constituted under the SARFAESI Act and, as such, normal Civil Court has no jurisdiction over such matters. Counsel for the defendant No. 1 has, therefore, prayed that appeal be dismissed with cost. 19. Learned Counsel for the appellant/plaintiff has assailed the impugned judgment on the grounds more than one, but prominent of them being: (i) The matters in dispute in the in the T.S. No. 8/2010 are not within the purview of the SARFAESI Act and, as such, Tribunal constituted under the said Act has no competence to try such disputes; (ii) The Tribunal, not being the Civil Court, cannot grant any of the reliefs as prayed for in the aforementioned suit, even if the plaintiff is found successful in establishing his claim before such a Tribunal; (iii) The plaintiff--not being a party to the mortgage in question nor being a borrower under the Bank concerned--has no right, whatsoever, to approach the Tribunal Court to have his right over the suit property affirmed on invoking the jurisdiction of the aforesaid Tribunal; (iv) Even if for one reason or another, it is held the Civil Court has no the jurisdiction over the matters in T.S. No. 8/2010 yet then in view of clear allegations/accusations, made in the plaint against the defendants therein, more particularly the defendant No. 1, the learned Trial Court ought have exercised its jurisdiction over the controversy in the suit in question on applying the principal laid down by the Hon'ble Apex Court in the case of Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 . 20. 20. Above being the prime allegations against the judgment, impugned, we propose to consider that those allegations one by one and charge at serial No. (i) is first taken up for consideration keeping in view rival submissions as well as materials on record, more particularly, pleading of the plaintiff. A bare perusal of record reveals that such a charge, viz. charge at serial No. (i) is by and large the most vital question around which the suit in question mainly revolves. 21. We have found that both the warring sides in this appeal put forward submissions before the Court which are diametrically opposite and totally contradictory to one another as well. Being so, let us see how the matter under consideration has been projected by the parties hereto. 22. Referring to the Section 9 of the C.P.C., the learned Counsel for the plaintiff/appellant has contended that Civil Court needs to exercise its jurisdiction over all the matters in the nature of Civil dispute unless such jurisdiction is barred by law either expressly or impliedly. It has also been contended that the question as to whether or not a Civil Court could exercise its jurisdiction over a matter is to be ascertained on the basis of materials available in the plaint and plaint alone. In that regard, the learned Counsel for the plaintiff has referred us to the decision of Hon'ble Gauhati High Court in the case of Sujit Nath v. State of Assam, 2000(2) GLT 498. 23. In the aforementioned decision. Hon'ble Gauhati High Court has held as follows:- 10. The exclusion of jurisdiction of Civil Court cannot be readily inferred and the normal rule is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded. When the particular Tribunal/forum created by the Special Act cannot grant the relief/remedy the jurisdiction of Civil Court cannot be ousted (see 1969 SC 98, Dhulabhai v. State of M.P., 1997(1) SCC 68 , M.P. Electricity Board v. Vijaya Timber Co.). If an order is nullity with regard to a plaintiff he always can come before a Civil Court for appropriate declaration (see 1997(5) SCC 536 Mafatlal v. Union of India). 24. If an order is nullity with regard to a plaintiff he always can come before a Civil Court for appropriate declaration (see 1997(5) SCC 536 Mafatlal v. Union of India). 24. According to the learned Counsel for the plaintiff, a bare perusal of plaint reveals that dispute in respect of which adjudication is sought for in Title Suit No. 8 of 2010 is one over which Civil Court, and no other authority, could exercise its jurisdiction. It is evident from the fact that plaintiff- having found his title over the suit property clouded had initiated suit in question mainly to have his right, title and interest thereon declared. His other claims or for the matter, the other relieves, he sought for, in the aforesaid suit, are either incidental or ancillary to his main claim. 25. Being so, Act in question, has nothing to do with suit he instituted before the Court of the Civil Judge, No. 1, Kamrup, Guwahati. Unfortunately, the learned Trial Court on wrong appreciation of facts, recorded in the plaint as well as law which holds the field in question, dismissed the suit on holding that said suit is barred in view of prohibition, contained in Section 34 of the Act. Such a judgment which totally defies law and logic has caused enormous injustice to the plaintiff therein. 26. While endorsing the propositions of law, so alluded to by the learned Counsel for the plaintiff during his long argument, the learned Counsel for the contesting defendant has, however, argued that remaining part of the argument, so advanced from the side of plaintiff, is totally bereft of substance, both factually and legally. Elaborating his argument on this count, the learned Counsel for the defendant No. 1 has argued that the Tribunal in question has been authorised to adjudicate upon all the matters arising out disputes between the Banks/financial institutions, on one side and borrowers, etc. of such institution, on the other side. 27. In that connection, learned Counsel for the defendant No. 1 pointed out that it is well evident from the plaint that the defendant No. 1 has laid its claim over the suit property on the strength of a charge which the owners thereof created in favour of defendant Bank on 14.10.2006. of such institution, on the other side. 27. In that connection, learned Counsel for the defendant No. 1 pointed out that it is well evident from the plaint that the defendant No. 1 has laid its claim over the suit property on the strength of a charge which the owners thereof created in favour of defendant Bank on 14.10.2006. But the owners aforesaid presumably committed default in making repayment of loan which compelled the defendant Bank to initiate action against the defaulters under SARFAESI Act to have its debt recovered in accordance with the procedure, prescribed thereunder. 28. However, in the meantime, the plaintiff instituted the suit in question seeking very many relieves against the defendants therein. But such a suit is required to be dismissed for the same not being maintainable in law for reasons more than one, basic of them being that matters in dispute in Title Suit No. 8/2010 is in the nature of disputes as alluded to the Act in question which are not at all amenable to jurisdiction of the Civil Court, in view of prohibition contained in Section 34 of the Act. 29. The fact that the plaintiff had, amongst others, also sought for a decree declaring the mortgage between defendant Bank and defendant Nos. 2 to 4, which is out and out a financial transaction between Bank and its borrowers and which already gave rise to a dispute between the Bank and the defendant Nos. 2 to 4 on the date on which plaintiff, instituted the suit, aforementioned, as void and illegal, is fluent testimony of the matter in dispute in Title Suit No. 8/2010, being one over which Tribunal, constituted under the Act and not the Civil Court having been authorised to exercise its jurisdiction. 30. In order to know which side of the story is true, we have given our anxious consideration to the rival submissions, advanced by the parties having regard to the facts on record. On such an exercise, we have found that as early as on 14.10.2006, defendant Nos. 2 to 4, being the owners of the suit property, created a charge on the same in favour of the defendant No. 1 and doing so, they secured a loan to the tune of Rs.59,16,995.02 with an agreed rate of interest thereon. It also transpires from the plaint that the defendant Nos. 2 to 4, being the owners of the suit property, created a charge on the same in favour of the defendant No. 1 and doing so, they secured a loan to the tune of Rs.59,16,995.02 with an agreed rate of interest thereon. It also transpires from the plaint that the defendant Nos. 2 to 4 had deposited title deeds pertaining to the suit property with the defendant Bank in order to secure such a loan. 31. However, the defendant Nos. 2 to 4 who were admittedly the owners of the suit property and who had so obtained a loan from defendant No. 1 committed default in repaying the loan aforesaid which requires the later to initiate action under the Act to have its debt realised in accordance with procedure prescribed under the Act and in furthering that process, the defendant No. 1 also served notice under Section 13(4) of the Act on the all concerned including the plaintiff and the tenants under the plaintiff, who are in the occupation of suit property. 32. On being so served with notice under Section 13(4) of the Act, the plaintiff came up with the suit in question, alleging inter alia - (1) the defendants being the owners of the suit property gave the plaintiff necessary authority to managed the same, (2) he duly purchased the suit property on 15.7.2007 and that too from its rightful owners, (3) the defendants in T.S. No. 8/2010 quite collusively brought into existence the mortgage dated 14.10.2006 in order to deprive the plaintiff of the suit property and (4) the conduct of the defendants has clouded his title over the suit property, so much so he was left with no other option but to file the suit in question. In the suit above, plaintiff has sought for very many reliefs including a relief in the form of the decree declaring the mortgage in question as void and illegal. 33. In the suit above, plaintiff has sought for very many reliefs including a relief in the form of the decree declaring the mortgage in question as void and illegal. 33. The other reliefs, sought for in T.S. No. 8/2010 are the reliefs in the form of decrees (a) declaring his right, title and interest over the suit property, (b) ordering the defendants to pay the plaintiff compensation jointly and severely, (c) delivering Khas possession of the suit property to the plaintiff in the event of his being found dispossessed from the suit property during the pendency of the suit, and (d) granting permanent injunction against the defendants or any person claiming under them restraining them from interfering with the peaceful possession of the plaintiff of the suit property. Plaintiff has prayed for the aforesaid reliefs although he admittedly purchased the suit property long after the execution of alleged mortgage by the defendant Nos. 2 to 4 in favour of the defendant No. 1. 34. What, therefore, emerge from above deliberations, and that too, with far too clarity, is that in the suit aforesaid, the plaintiff has amongst other things also prayed for relief in the form of decree declaring the mortgage in question as void and illegal, a decree for granting plaintiff compensation to be paid by the defendants jointly and severely as well as a decree confirming the possession of the plaintiff over the suit land/delivering the Khas possession of the suit property in the event of plaintiff being found dispossessed from the suit property during the pendency of the same. 35. When all those revelations are considered in their totality, what has caught our eyes quite instantly is that in the Title Suit No. 8/2010, the plaintiff has incorporated some disputes for the adjudication of the Civil Court over which normal Civil Court in view of the prohibition, contained in Section 34 of the Act, has no jurisdiction, whatsoever, same being in the nature of disputes as specified/contemplated in the Act under reference and which are specially earmarked for the Tribunal for adjudication. The fact that in the title Suit 8/2010, the plaintiff has sought a decree declaring transaction dated 14.10.2006 as void and illegal makes above conclusion of us inevitable. 36. The fact that in the title Suit 8/2010, the plaintiff has sought a decree declaring transaction dated 14.10.2006 as void and illegal makes above conclusion of us inevitable. 36. Above being position, there cannot be any doubt, whatsoever that the most of the matters in dispute in the Title Suit No. 8/2010 are the ones over which Civil Court, in view of the prohibition, imposed by Section 34 of the Act, cannot exercise its jurisdiction since those matters are specially earmarked for the Tribunal, constituted under the SARFAESI Act for its adjudication. In above view of the matter, the decision of the Trial Court that it has no jurisdiction to entertain the suit in question for which it dismissed the suit on 6.4.2011 cannot be faulted with. 37. This brings us to next question where we are to see if the Tribunal, aforesaid, has the competence to grant the reliefs, sought for, by the plaintiff in Title Suit No. 8/2010. The learned Counsel for the plaintiff has strenuously contended that the Tribunal, aforementioned, is not at all well equipped to grant any of the reliefs, so sought for, in the suit instituted before the Trial Court and it ought to have exercised its jurisdiction over the matters in Title Suit 8 of 2010 on that ground alone. 38. Learned Counsel for defendant/respondent has challenged aforesaid argument, advanced from the side of plaintiff/appellant, contending that the Tribunal, constituted under the SARFAESI Act, has all the wherewithal--not only to adjudicate upon the disputes before it--but also to grant all the reliefs, sought for by the plaintiff in the suit in question provided plaintiff is found successful in establishing his claims therein. According to learned Counsel for defendant, a careful perusal of Section 17, particularly Section 17(3) of the SARFAESI Act, would make such a position absolutely clear. 38A. In order to re-enforce his argument, above, the learned Counsel for the defendant/respondent has referred us to the decision of Hon'ble Kerala High Court in the case of Fakrudheen Haji v. State Bank of India, (2009) BC 352 (DB). 38A. In order to re-enforce his argument, above, the learned Counsel for the defendant/respondent has referred us to the decision of Hon'ble Kerala High Court in the case of Fakrudheen Haji v. State Bank of India, (2009) BC 352 (DB). In the case of Fakrudheen Haji v. State Bank of India, (supra) Hon'ble Kerela High Court examined the scope of Section 17(3) of the SARFAESI Act regarding the power of the Tribunal to grant reliefs) to the parties before it and on considering the relevant factors held as follows: Section 17(3) also stated that the Debts Recovery Tribunal may pass such order as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under Sub-section (4) of Section 13. If the Tribunal finds that the recourse taken by the creditor under Section 13(4) is invalid, nothing prevents the Tribunal from passing appropriate orders protecting the interests of the appellant, whether the appellant is the borrower or any other person. The fact that specific mention is made for restoration of possession in favour of the borrower does not mean that restoration of possession in favour of a person other than the borrower is impossible while passing an order under Section 17(3) if the Tribunal finds that the recourse taken under Section 13(4) is invalid, and if it is found that the appellant who is not a borrower was dispossessed by such recourse under Section 13(4) it would only be proper for the Tribunal to pass an order putting the appellant in possession of the property or to pass any other appropriate order in the facts and circumstances of the case. The expression "after examining the facts and circumstances of the case and evidence produced by the parties" and "pass such order as it may consider appropriate and necessary" Sub-section (3) of Section 17 clearly indicate that the Debts Recovery Tribunal has ample powers to deal with any situation where a recourse was taken by the secured creditor under Section 13(4) and when the Tribunal finds that such recourse was not in accordance with the provisions of the Act and the Rules. Section 17(3) does not prevent restoration of possession in favour of a person other than the borrower. Section 17(3) does not prevent restoration of possession in favour of a person other than the borrower. It cannot be said that when a right is conferred on any person aggrieved, to file an appeal to the Debts Recovery Tribunal, the Tribunal would have no power to redress his grievance. Restoration of possession to the borrower mentioned in Subsection (3) of Section 17 would not in any way fetter the jurisdiction of the Tribunal to pass any order including restoration of possession in favour of any person aggrieved, whether he is a borrower or not, if the facts and circumstances of the case warrant such restoration. We are of the view that the expression "evidence produced by the parties" occurring in Section 17(3) would include evidence produced by the appellant, though he is a person other than the borrower. 39. Similar view has been rendered by Hon'ble Bombay High Court in the case of State Bank of India v. Jigishaben B. Sanghavi & Ors., 2011 (2) BC 139 (DB). Hon'ble Bombay High Court in the aforesaid case held that while enquiring into an appeal under Section 17, the Tribunal is empowered to determine whether the action which is taken by the secured creditor is in accordance with the provisions of the Act and the Rules made thereunder. If the Tribunal comes to the conclusion that the action was invalid, it is vested with wide powers, including both to restore the management of the business or restoration of the possession to the borrower and to pass such order as it may consider appropriate and necessary in relation to the recourse taken by a secured creditor under Section (4) of Section 13. When a person other than a borrower is aggrieved by a means taken by the statutorily available to such a person. We respectfully agree with the aforesaid views rendered by Hon'ble Kerela High Court and High Court of Bombay on the matter under consideration. 40. However, the final seal of approval to the views, so rendered by the Hon'ble Kerela High Court and Hon'ble Bombay High Court comes from an authority no less than Hon'ble Supreme Court of India. We respectfully agree with the aforesaid views rendered by Hon'ble Kerela High Court and High Court of Bombay on the matter under consideration. 40. However, the final seal of approval to the views, so rendered by the Hon'ble Kerela High Court and Hon'ble Bombay High Court comes from an authority no less than Hon'ble Supreme Court of India. Hon'ble Supreme Court of India in Mardia Chemicals Limited v. Union of India, 110 (2004) DLT 665 (SC)= (2004) BC 397 (SC)= 2004 (2) SLT 991= (2004) 4 SCC 311 , Hon'ble Supreme Court of India in Mardia Chemicals Limited v. Union of India (supra) held as follows: We may like to observe that proceedings under Section 17 of the Act, in fact, are not appellate proceedings. It seems to be misnomer. In fact it is the initial action which is brought before a Forum as prescribed under the Act, raising grievance against this 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 presence case. (para 59). As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the Court of the first instance under the Code of Civil Procedure. No doubt, in suit also it is permissible, in given facts and circumstances and under the provision of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provision under the law. There is no such provisions under the Act. (para 62). 41. The powers of the Tribunal, constituted under the SARFAESI Act, regarding its authority to grant relief under the Act, having been ascertained, we are to see what are the relieves that the plaintiff had sought for in Title Suit No. 8/2010 and whether the Tribunal in question had the competence to grant those reliefs. (para 62). 41. The powers of the Tribunal, constituted under the SARFAESI Act, regarding its authority to grant relief under the Act, having been ascertained, we are to see what are the relieves that the plaintiff had sought for in Title Suit No. 8/2010 and whether the Tribunal in question had the competence to grant those reliefs. At the cost of repetition, it needs to stated, here that in the suit in question, plaintiff had prayed for decrees (1) declaring his right, title and interest over the suit land, (2) granting him compensation for the loss arising out of alleged illegal conduct of defendants, and (3) for permanent injunction against the defendants or any person claiming through them from interfering with his possession over the suit property, etc. 42. What is, however, a matter of great importance is that in his pleading, the plaintiff quite specifically and categorically alleged that defendants therein had resorted to all kinds of illegalities/irregularities which range from creating false charge on the suit property to the violating of the various provisions incorporated in the Act, aforesaid. Equally important, the defendants allegedly did all those things in order to ensure that the plaintiff could not enjoy the usufruct of the property which he acquired after so much of labour and hard work. 43. When one considers the various reliefs, sought for by the plaintiffs in the suit in question together with the allegations, recorded in the plaint in the light of decisions, referred to above, there cannot be any escape from the conclusion that the Tribunal we are talking about has all the competence to grant the reliefs, sought for by the plaintiff in Title Suit No. 8 of 2008 depending upon his ability to establish the claims, he laid before the Tribunal. In above view of the matter, the claim of plaintiff that Tribunal cannot grant him any of the reliefs, he sought for in the suit, he instituted before the Trial Court is found to be totally without any substance, whatsoever. 44. Here, it is worth noting that learned Counsel for the plaintiff has referred us to the decision of Hon'ble Supreme Court of India in the case of Nihar Industrial Enterprises Ltd. v. Hongkong and Sanghai Banking Corporation, 2009 (3) BC 539 (SC)= 2009 (5) SLT 737= (2009) 8 SCC 646 . 44. Here, it is worth noting that learned Counsel for the plaintiff has referred us to the decision of Hon'ble Supreme Court of India in the case of Nihar Industrial Enterprises Ltd. v. Hongkong and Sanghai Banking Corporation, 2009 (3) BC 539 (SC)= 2009 (5) SLT 737= (2009) 8 SCC 646 . In the above decision, it was held that a Debts Recovery Tribunal is neither a Civil Court nor a Court subordinate to High Court and, as such, a Debts Recovery Tribunal can not act as Civil Court in so far granting of reliefs is concerned. 45. Relying on the aforesaid decision, learned Counsel for the plaintiff has contended that the Tribunal, constituted under the SARFAESI Act, not being a Civil Court, cannot grant any of the reliefs, so sought for by the plaintiff in the suit which is subject matter of the present appeal. However, such an argument is also found to be totally devoid of any truth since in the case of Nihar Industrial Enterprises Ltd. v. Hongkong and Sanghai Banking Corporation (supra), Hon'ble Supreme Court of India considered the term Tribunal in the context of definition of such a term, so rendered in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. 46. But the SARFAESI Act places the Tribunal, constituted thereunder, on a different footing altogether, for, in the SARFAESI Act, power of the Tribunal has been enlarged so much so that said Tribunal has been authorised to exercise its jurisdiction over all the matters covered by the SARFAESI Act, and has been empowered to grant all such reliefs as facts and circumstances of a particular case demand. Our foregoing discussion makes such a position more than clear and same needs no further reiteration here. Being so, decision, relied on is inapplicable to the case in hand. 47. So situated, let us, now, focus our attention on the third allegation being levelled against the judgment, impugned. We have already found that the plaintiff has argued that the reliefs provided under the SARFAESI Act, can be availed of only by certain categories of persons/institutions/authorities as indicated in the Act itself and none else. The plaintiff neither being a borrower under the defend ant Bank nor even being a privy to the mortgage in question cannot approach the Tribunal to have his grievances adjudicated upon. 48. The plaintiff neither being a borrower under the defend ant Bank nor even being a privy to the mortgage in question cannot approach the Tribunal to have his grievances adjudicated upon. 48. In spite of above being the position, the learned Trial Court chose to dismiss the suit, he instituted before it thereby depriving the plaintiff of all the opportunities to have his grievances redressed legally. This is an absurdity of enormous proportion since a man cannot be left without any forum to have his grievance redressed. Such states of affairs speak loud and clear that the judgment impugned, needs to be overturned at the earliest. 49. Disputing such an argument, advanced from the side of plaintiff/appellant, learned Counsel for the defendant/respondent vehemently argues that Act in question never stipulates that only a borrower or a privy to any transaction with the Bank/financial institution can approach the Tribunal in question to invoke its jurisdiction to have his grievances addressed and redressed. Quite contrary to it, in some special situations, even a third person who is neither a borrower under the Bank/financial institution nor a party to any financial transaction with such Bank/institution can also approach the Tribunal aforementioned seeking relief from such a Tribunal. A perusal of Section 17 of the SARFAESI Act would make such a position more than clear contends learned Counsel for the defendant. 50. In that connection, learned Counsel for the defendant Bank has drawn our attention to the decision of Hon'ble Bombay High Court reported in 2011 (2) BC 139 (DB). In the aforesaid decision Hon'ble Bombay High Court at para 16 held that "Section 17 provides a right of appeal to any person, including a borrower. The expression "any person" is broad enough to include not only a borrower but any person who is aggrieved by a measure which is taken by the secured creditor under Sub-section (4) of Section 13". 51. A Division Bench of same High Court in the case of M/s. Trade Well v. Indian Bank, 2007 (2) CCR 349 : AIR 2007 Bom 656 (DB) reported similar view. The Division Bench in the case of M/s. Trade Well v. Indian Bank (supra) has held that the remedy provided under Section 17 is available to the borrower as well as to a third party. The Division Bench in the case of M/s. Trade Well v. Indian Bank (supra) has held that the remedy provided under Section 17 is available to the borrower as well as to a third party. Moreover, the remedy provided under Section 17 is an efficacious alternate remedy to a third party as well as to the borrower when all grievances can be raised. We are completely in agreement with the views, so rendered by Hon'ble Bombay High Court on the matters under consideration. 52. However, the question whether or not a person other than the borrower can approach the Tribunal, constituted under the SARFAESI Act has been answered once for all by Hon'ble Supreme Court in the case of United Bank of India v. Satyawati Tondon, II (2011) SLT 764 : 11 (2011) BC 207 (SC) : 2010(3) Bankers' Journal 581, at paragraph 17. Hon'ble Supreme Court, in the case of United Bank of India v. Satyawati Tondon (supra), held that The expression 'any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) of Section 14. 53. Right of a third party to approach the Tribunal under the SARFAESI Act, having been found well documented, we need to know if the plaintiff, being a third party, has any right to approach the Tribunal aforesaid in order to have his grievances redressed. To find an answer the above query, we have once again perused very carefully the pleading in question. A perusal of the plaint clearly reveals that in his pleading, the plaintiff quite strenuously contends that the defendant Bank served him as well as the tenants under him with the notice under Section 13(4) of the Act, however, without complying the requirements of law which deprives them some of the very valuable rights which the Act, above, conferred on them, alleged learned Counsel for plaintiff. 54. Worse still, defendant No. 1, in collusion with other defendants in T.S. 8 of 2010, fraudulently and illegally brought into existence an English mortgage in favour of the defendant Bank in order to gain illegal benefit which they were not entitled to. 54. Worse still, defendant No. 1, in collusion with other defendants in T.S. 8 of 2010, fraudulently and illegally brought into existence an English mortgage in favour of the defendant Bank in order to gain illegal benefit which they were not entitled to. The defendants resorted to such illegalities only to deprive the plaintiff of the suit property which he purchased from its lawful owners on 15.7.2010 on the strength of a valid sale deed. The above allegations, in our considered opinion, clearly provide the plaintiff with an opportunity to approach the Tribunal aforementioned in order to have all his grievances addressed and redressed. 55. These revelations which emerge from the plaint itself become a very clear testimony to the fact that plaintiff despite not being a party to the mortgage in question and inspite of not being a privy to any transaction with the defendant Bank can very well approach the Tribunal as being the third party since his rights in respect of suit property allegedly stands clouded following service of notice under Section 13(4) of the Act on him as well as on the tenants under him. Being so, his claim that he cannot approach the Tribunal, referred to above, for his not being a borrower/privy to any transaction of the Bank is found to have fallen flat on its face. 56. Insofar last charge is concerned, learned Counsel for the plaintiff has again argued that even if one assumes for the sake of argument for a moment that the Civil Court has no jurisdiction to try the matter in dispute in T.S. No. 8 of 2010 in view of the prohibition contained in Section 34 of the Act yet it is an established proposition of law that the Legislature cannot enact a law imposing a complete ban in the power of Civil Court to entertain any matter covered by a special legislation. Rather well recognised principle of law is that under some extraordinary circumstances, despite there being a ban on the power of the Civil Court to entertain some matters covered by some special legislation, the Civil Court can still exercise its jurisdiction on those matters. 57. In order to fortify its argument on this count, the learned Counsel for the plaintiff have referred us to the decision rendered by Hon'ble Supreme Court of India in the case of Mardia Chemicals Ltd. & Ors. 57. In order to fortify its argument on this count, the learned Counsel for the plaintiff have referred us to the decision rendered by Hon'ble Supreme Court of India in the case of Mardia Chemicals Ltd. & Ors. v. Union of India, (supra) wherein Hon'ble Supreme Court held as follows: 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 recognised in the two decision 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 1955 Mad 135 ) AIR at pp. 141 and 144, a judgment of the learned Single Judge where it is observed as follows in para 22 (AIR p. 143) 22. The remedies of a mortgage or against the mortgagee who is acting in violation of the rights, duties and obligations are two-fold 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 retaining a sale by mortgage must clearly disclose a fraud or irregularity on the basis of which relief is sought Adam V. Scott 11. 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 annual one of the chief securities on which person advancing money on mortgages rely [see Ghoose, Rashbehary: Law of Mortgages, Vol. II, 4th Edn., p. 784]. 58. II, 4th Edn., p. 784]. 58. On a careful perusal of aforesaid decision, we have found that in case, above, Hon'ble Supreme Court of India has only reiterated the well established principle of law that under some extraordinary situations and circumstances, the Civil Court can still exercise its jurisdiction over the matters although those matters, due to operation of some special law, are clearly kept beyond the purview of the jurisdiction of such Court. However, in order to exercise such jurisdiction, an extraordinary situation needs to be shown which demands an extraordinary response. Thus, in a given case, when it is shown that allegation, complained of, are so perverse, so absurd and so untenable in law that they do not require any further probe, whatsoever, then Civil Court can exercise its jurisdiction over the matters despite those matters being kept outside the jurisdiction of the Civil Court. 59. It is in those backdrops, let us see whether our instant case is one where the Civil Court needs to exercise its jurisdiction over the matters despite those matters being specially earmarked for the Tribunal, constituted under the Act, to adjudicate upon. To put it differently, whether the acts, complained of. On the part of the defendants, fit the situations, described hereinbefore. On perusal of the plaint, we have found that in his pleading, the plaintiff claims that he purchased the suit property from the defendants on 15.7.2010. 60. It is also his case that on 27.3.2007 defendant Nos. 2 to 4 executed a deed authorising the plaintiff to manage the suit property. But then, all the defendants quite fraudulently and in collusion with one another managed to mortgage the suit property in favour of defendant Bank though, in the meantime, the owners of the suit property had already agreed to sell the suit property to the plaintiff and although they put the plaintiff in the physical possession of the said property long before such a deal. 61. These apart, plaintiff had found fault with the defendant Bank for their serving notice on them under Section 13(4) of the Act. It is contended that defendant No. 1 had such a notice served on them without serving a notice under Section 13(2) of the Act, as required under the law. 61. These apart, plaintiff had found fault with the defendant Bank for their serving notice on them under Section 13(4) of the Act. It is contended that defendant No. 1 had such a notice served on them without serving a notice under Section 13(2) of the Act, as required under the law. All those acts, on the part of defendants, defendant No. 1 in particular, are deceitful and illogical to say the least such deceitfulness and illogicality on the part of the defendant No. 1 was so apparent, so obvious and so prominent that they need no further probe, whatsoever. 62. Those disclosures, recorded in the plaint according to learned Counsel for plaintiff clearly take the case of the plaintiff well within the bounds of law as enunciated by Hon'ble Supreme Court of India in the case of 'Mardia Chemicals' (supra) thereby requiring the Civil Court to exercise its jurisdiction over the matter in dispute in Title Suit 8 of 2010 even though subject matters therein are ones over which the Tribunal, constituted under the Act is authorised to exercise its jurisdiction, same being the mailers covered by the SARFAESI Act. However, nothing is farthest from the truth as the above argument is. 63. True that in the pleading, it has been recorded that the plaintiff purchased the suit property on 15.7.2007. True that the plaintiff claimed to have come into the possession of the suit property on and from 27.3.2007. But then, we must not be oblivious to the fact that as back as 14.10.2006, the defendant Nos. 2 to 4, being the owners of the suit property, executed an equitable mortgage in respect of the suit property in favour of defendant Bank. As the defendants presumably failed to repay the loan, obtained from the Bank, the later had to initiate action under Section 13(4) of the Act against the person(s) who are some way or other connected with the suit property. 64. The above revelations coupled with the fact that the title deed pertaining to the suit property remained deposited with the Bank concerned at all the relevant time, now, demonstrate that the conduct of defendant Bank in granting loan to the defendant Nos. 64. The above revelations coupled with the fact that the title deed pertaining to the suit property remained deposited with the Bank concerned at all the relevant time, now, demonstrate that the conduct of defendant Bank in granting loan to the defendant Nos. 2 to 4 on taking the suit property on mortgage or for that matter, its issuance of notice under Section 13(4) of the Act prima facie cannot be said to be fraudulent one, more so, when the plaint did not very clearly spell out as to how the alleged conduct on the part of the defendants, defendant No. 2 in particular, be comes deceitful or illogical. 65. All these disclosures, now, require us to hold that the plaintiff could not make out a case to show that on the matters under consideration, the Civil Court needs to exercise its jurisdiction to the exclusion of jurisdiction of all other Courts/Tribunals. 66. Here, it is worth noting that in his memo of appeal, the plaintiff/appellant has also contended that on dismissing the suit which he had initiated before the Trial Court learned Trial Court has also denied the protection which Section 53A and Section 56 of the Transfer of Property Act provided to him. According to Counsel for the plaintiff, the dismissal of the suit in question is not mere a failure of on part of the Trial Court to exercise the jurisdiction vested on it but also a sad commentary of justice being denied to those who deserve it most. Such a state can be corrected only if the judgment impugned is set aside by this Court in exercising its appellate power. 67. We have given our serious consideration to the allegations so canvassed before us by the learned Counsel for the petitioner/plaintiff. However, in view of our decision that the mattes in dispute in T.S. No. 8/2010 are ones which are not at all amenable to the jurisdiction of normal Civil Court, a discussion over this plea is found totally redundant, more so, when said plea no way help retrieve the jurisdiction which the Civil Court loses to Tribunal constituted under the SARFAESI Act. Suffice is to say, here, that this plea aforesaid may be raised before the appropriate forum as and when such occasions arise. 68. Suffice is to say, here, that this plea aforesaid may be raised before the appropriate forum as and when such occasions arise. 68. We have, therefore, no hesitation at all in coming to the conclusion that none of the charges, levelled against the judgment, impugned, stands to reason requiring us to set aside the same on exercising the appellate authority of this Court. In the result, this appeal is dismissed. No cost. A copy of this judgment be furnished to the learned Trial Court forthwith. Appeal dismissed.