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2013 DIGILAW 1351 (MP)

Bhaiyalal Tiwari v. Central Bank of India

2013-11-12

ROHIT ARYA

body2013
JUDGMENT The instant appeal is directed against the concurrent judgment and decree passed by the 1st Additional Sessions Judge, Gwalior dated 29.2.2012, confirming the judgment and decree dated 21.6.2011 passed by the 8th Civil Judge Class-II, Gwalior in Civil Suit No. 16-A/11. 2. The facts necessary for disposal of this appeal are as under : The appellant filed a suit for permanent injunction, contending inter alia that he is claiming to be a tenant in the suit property of defendant No.3 for many years. Tenancy is oral and on the monthly rent of Rs.600/- per month. He has mentioned dates 25.1.2011 and 29.1.2011 the dates when the cause of action arose, when respondent-defendant No.1 came to his house initially in his absence and later on in his presence threatening the appellant/plaintiff to evict from the suit property. 3. The defendant/respondent No.1, Central Bank of India and defendant-respondent No. 2 auction purchaser, Joyti Sharma have filed separate applications under Order 7, Rule 11 of Civil Procedure Code, denying the plaint allegations to the effect that neither respondent-defendant No.3 is the owner of the suit property nor the plaintiff/appellant is the tenant therein, instead the suit property was mortgaged by the defendant No. 3 with the defendant No. 1 as security for the loan advanced to M/s. Shubham Readymade Fashion House Proprietor Smt. Pushpa Mishra wife of S.K. Mishra, since the debtor failed to repay the loan and discharged its liability to the bank, defendant-respondent No. 1 took recourse under the provision of Section 13 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as the SARFAESI Act 2002) and physical possession was taken by preparing Panchnama duly signed by the erstwhile owner, the defendant No.3 amongst others on 17.3.2010. The suit property was put to auction in accordance with the provisions of the Act by publishing sale on 15th May, 2010 in the Hindi Newspaper “Dainik Bhaskar”. The auction took place on 16.6.2010 and the defendant No.2 being highest bidder, the same was notified by the Bank on 24.6.2010, the sale certificate was issued on 30.7.2010 in the Hindi Newspaper “Dainik Bhaskar”. There was no tenant in the suit premises either at the time of taking possession of the suit property or at the time of auction, or at the time sale certificate was issued in favour of defendant No.2. 4. There was no tenant in the suit premises either at the time of taking possession of the suit property or at the time of auction, or at the time sale certificate was issued in favour of defendant No.2. 4. It was submitted that Section 34 of 2002 Act bars jurisdiction of civil Court and says; no civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the appellate tribunal is empowered by or under this Act of 2002 to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. It was further submitted that Section 17 of the Act, 2002 provides for right to appeal and confer right on a person aggrieved by any of the measures refer red to in sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under Chapter 3 of the Act, 2002. In view of the aforesaid it was contended that no cause of action had arisen in the instant case to file a suit for permanent injunction and jurisdiction of the civil Court is clearly barred. It was accordingly prayed that under Order 7 Rule 11 (d) suit was not maintainable and deserves to be dismissed. 5. The trial Court by a detailed order has rightly found that in view of Section 34 of the Act, 2002, trial Court has no jurisdiction. The trial Court further referred documents filed by the bank and observed that there was paper publication by the respondent bank at the time of taking possession of the suit property on 17.3.2010, the possession was taken in the presence of defendant No.3, erstwhile owner along with other witnesses by preparation of Panchnama. Lock was put in the suit premises by the defendant bank on 17.3.2010. Thereafter in Hindi Newspaper “Dainik Bhaskar” auction notice was issued on 15.5.2010 and auction took place on 16.6.2010. The sale certificate was issued in favour of the defendant No.2. As such, the entire proceedings were initiated right from taking possession till issuance of sale certificate under the SARFAESI Act. Thereafter in Hindi Newspaper “Dainik Bhaskar” auction notice was issued on 15.5.2010 and auction took place on 16.6.2010. The sale certificate was issued in favour of the defendant No.2. As such, the entire proceedings were initiated right from taking possession till issuance of sale certificate under the SARFAESI Act. There is specific provision to file an appeal under Section 17 of the Act and hence suit was not maintainable. The civil suit was accordingly dismissed. 6. First Appellate Court has held that the appellant failed to establish that he was the tenant in the suit property. It is clear from the mortgaged document that there is no mention of any tenancy in the suit premises at the time of mortgage of the suit property and further reiterated the fact related to taking over the possession on 17.3.2010 by the Bank by preparing Panchnama wherein erstwhile owner affixed her signature. Thereafter auction notice was issued followed by auction and issuance of sale certificate. At no point of time any objection was raised by the appellant. Complete factual details are mentioned in para 12 of the order. Resultantly, the appeal was dismissed as the suit under Order 7, Rule 11(a) the suit was not maintainable. 7. Before this Court, the appellant reiterated the same submissions. Heard. 8. The controversy involved in this appeal centres around the provisions contained in the SARFAESI Act. The mortgaged document executed by defendant No.3 in favour of defendant No.1 Bank in respect of suit property, nowhere mentioned that the appellant was tenant in the suit premises. Admittedly the possession of the suit property has been taken in presence of defendant No.3 after preparation of Panchnama dated 17.3.2010 under Section 13 (4) of the Act and lock was put on it. Thereafter auction notice was published in Hindi Newspaper “Dainik Bhaskar” and auction was conducted. No objection was raised as against the said auction, it is followed by issuance of sale certificate on 30.7.2010. The appellant claims to be a tenant of defendant No.3 on the basis of oral tenancy. There is no clinching evidence to establish the right of appellant as tenant in the suit premises. These findings are recorded by both the Courts below. There is specific bar under Section 34 of the Act. The Section 34 talks about bar which is as under. Section 34. There is no clinching evidence to establish the right of appellant as tenant in the suit premises. These findings are recorded by both the Courts below. There is specific bar under Section 34 of the Act. The Section 34 talks about bar which is as under. Section 34. Civil Court not to have jurisdiction - No civil Court shall have jurisdiction to entrain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). Admittedly, proceedings have been initiated by the Bank under Section 13 (4) of the Act, Civil Court has no power to grant any injunction much less permanent injunction. Specific remedy by filing appeal under Section 17 of the Act is available. 9. The case law cited by the learned counsel for the appellant 2011 (2) MPHT 300 M/s. Selection (Partnership Firm) & two others v. Chief Manager, Central Bank of India and eight others and judgment of the Apex Court reported in 2009 (1) SCC 646 are distinguishable on facts. 10. In view of the aforesaid there is no infirmity in the order passed by the trial Court while dismissing the suit under Order 7, Rule 11 (d) as well as order of the first appellate Court justifying the dismissal of the suit under Order 7, Rule 11 (a) of CPC. In the opinion of this Court, both the provisions are attracted as not only suit is barred under Section 34 of the Act 2002 but also the appellant could not establish himself to be a tenant in the suit premises. 11. In view of the aforesaid, no question of law much less substantial question of law arise, appeal being devoid of substance, the same is hereby dismissed. Appeal dismissed.