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2014 DIGILAW 188 (MP)

Ramswaroop Singh Sikarwar v. Meena Singh

2014-02-12

G.D.SAXENA, S.K.GANGELE

body2014
ORDER 1. This appeal has been filed against the order dated 23/07/2008 passed in case No.2-A/2008, by which the trial Court allowed the application filed under Order VII Rule 11 of the Code of Civil Procedure and dismissed the suit on the ground that in view of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity “the Act of 2002”) the suit was not maintainable. 2. The appellant filed a suit for declaration and permanent injunction. He pleaded that he purchased a plot vide registered sale deed dated 17/12/1981 from Chandan Singh. Thereafter, he had taken permission from the Municipal Corporation to construct the house and constructed an apartment named as 'Sharda Apartment'. On 2/1/2007 employee of defendant no.3 came to his house and informed him that defendant No.1 had taken loan and the house was mortgaged, hence, proceedings under the Act of 2002 were initiated and the suit house was put to auction. The plaintiff further pleaded that the defendant No.2 executed a sale deed dated 13/2/2004 in favour of defendant No.1 on the basis of power of attorney of the plaintiff, however, the plaintiff did not execute any power of attorney neither he had sold the house in favour of defendant No.1 and the whole proceedings are null and void. 3. The defendant No.3 in the written statement resisted the claim of the appellant and said that the asset was mortgaged with the Bank on account of taking loan and in accordance with the provisions of section 34 of the Act of 2002 the suit is not maintainable. 4. Section 34 of the Act of 2002 bars jurisdiction of the civil Court. The aforesaid provision is as under :- “34. Civil Court not to have jurisdiction. 4. Section 34 of the Act of 2002 bars jurisdiction of the civil Court. The aforesaid provision is as under :- “34. Civil Court not to have jurisdiction. - No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.” From the aforesaid provision, it is clear that the suit or proceeding is not maintainable, in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act. 5. Section 2(1) (l) of the Act of 2002 further defines the financial asset, which is as under :- “2. Definitions. - (1) In this Act, unless the context otherwise requires.- (a) to (k) xxxxxxxxxxxxxx (l) “financial asset” means debt or receivables and includes -- (i) a claim to any debt or receivables or part thereof, whether secured or unsecured; or (ii) any debt or receivables secured by, mortgage of, or charge on, immovable property; or (iii) a mortgage, charge, hypothecation or pledge of movable property; or (iv) any right or interest in the security, whether full or part underlying such debt or receivables; or (v) any beneficial interest in property, whether movable or immovable, or in such debt, receivables, whether such interest is existing, future, accruing, conditional or contingent; or (vi) any financial assistance;” It is clear that the house was mortgaged with the Bank, which was a financial asset. The appellant sought declaration and injunction in regard to financial asset. Certainly, the jurisdiction of the civil Court is barred. The appellant has a remedy to file an appropriate proceeding in accordance with the provisions of the Act of 2002 and the Recovery of Debts due to Banks and Financial Institutions Act, 1993. 6. In this view of the matter, in our opinion, the trial Court has rightly passed the order that it had no jurisdiction to entertain the suit. The appellant is at liberty to file appropriate proceedings in accordance with the observations made by us in the order. 7. 6. In this view of the matter, in our opinion, the trial Court has rightly passed the order that it had no jurisdiction to entertain the suit. The appellant is at liberty to file appropriate proceedings in accordance with the observations made by us in the order. 7. With the aforesaid observations, this first appeal is disposed of. No order as to costs.