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2015 DIGILAW 218 (ORI)

Sudhira Das Verma v. Bank of Baroda, Bhubaneswar

2015-03-31

KUMARI SANJU PANDA

body2015
ORDER : Petitioner in this application has challenged the order dated 2-11-2012 passed by learned District Judge, Puri in FAO No. 17 of 2012 wherein the appellate Court allowed the appeal by setting aside the order dated 6-1-2012 passed by learned Civil Judge (Sr. Divn.), Puri in interim Application No. 255 of 2011 arising out of C.S. No. 505 of 2011 directing the opposite party-bank not to make auction of the suit property till disposal of the suit. 2. The facts leading to the present case are as follows : The petitioner got the suit land in the year 1944 on lease, on payment of Rs. 50/- and fixed rent of Rs. 614/-. After lease, the petitioner protected the land by erecting compound wall but due to her illness she could not make any construction over the same. She remained in possession and went on paying rent to State and obtained the rent receipts. When the matter stood thus, the petitioner got information from her caretaker and agent that the opposite party bank has published a notice through Authorised Officer to take possession of the property in exercise of power under Section 13(12) of Securitisation Act. On enquiry the petitioner came to know that the bank has initiated the proceeding against M/s. Oriental Trading Export and its proprietor Shyama Sundar Choudhury for realization of arrear dues of the bank to the tune of Rs. 1,53,61,389/-. 3. The case of the petitioner is that she is the owner in possession of the property and at no point of time she has transferred or mortgaged or leased out or made any agreement with any body. Plaintiff has specifically also pleaded that the she is the owner in possession of the property and is continuing as such. She has no knowledge about any Shyama Sundar Choudhury or M/s. Oriental Trading Exports. Bank has suppressed the identity or any details of the transaction in which the suit property became security and also avoiding to disclose anything to the plaintiff. Plaintiff has not deal with the bank at any point of time nor has created any encumbrance or agreement hence, the defendant bank is party to a great fraud and cheating in giving public notice under the aforesaid act for transfer of the land which casts a cloud on the right of the plaintiff. Plaintiff has not deal with the bank at any point of time nor has created any encumbrance or agreement hence, the defendant bank is party to a great fraud and cheating in giving public notice under the aforesaid act for transfer of the land which casts a cloud on the right of the plaintiff. Finding no other way plaintiff filed the suit to restrain the defendant-bank from perpetrating further fraud and illegal action by creating sale deed in respect of the suit property or creating any encumbrance with regard to the said property and disturb the possession of the plaintiff. In the said suit plaintiff has also filed an application under Order 39, Rules 1 & 2 of the Code of Civil Procedure which was registered as interim Application No. 255 of 2011. 4. The opposite party-bank appeared in the suit and filed written statement taking a stand that the petitioner after acquiring the property by lease, to meet her legal necessity sold away the same in the year 1974 to one Smt. A. Baluki Rao W/O. A Chakradhar Rao for valuable consideration followed by delivery of possession. After purchase of the land Smt. A Baluki Rao in a subsequent stage to meet her legal necessity transferred the same to Bibhutibhusan Das and his wife Smt. Nishamani Das through two separate sale deeds dated 11-8-1986 and 18-8-1986 and delivered possession thereof. The said Bibhutibhusan Das and his wife is the owner of the property and allotted with holding number by Puri Municipality. They mortgaged the suit property in the bank and obtained loan. As they defaulted in repaying such loan notice under Section 13(2) of Securitisation and Re-construction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, SARFAESI Act) was issued against them by the bank. 5. The Interim Application No. 255 of 2011 was taken up by the trial Court and considering the respective pleadings and the show cause to the interim application as well as the documents filed on behalf of the parties came to the conclusion that the petitioner has got prima facie case and balance of convenience in her favour. Accordingly the trial Court by order dated 6-1-2012 directed the opposite party-bank not to auction the suit property till disposal of the suit. 6. The opposite party-bank preferred F.A.O. No. 17 of 2012 before the learned District Judge, Puri against the aforesaid order. Accordingly the trial Court by order dated 6-1-2012 directed the opposite party-bank not to auction the suit property till disposal of the suit. 6. The opposite party-bank preferred F.A.O. No. 17 of 2012 before the learned District Judge, Puri against the aforesaid order. The appellate Court after hearing both parties and after going through the L.C.R. by impugned order allowed the appeal by setting aside the order dated 6-1-2012 passed by learned Civil Judge (Sr. Divn.) Puri in Interim Application No. 255 of 2011. The appellate Court held that since the bank has initiated the proceeding under SARFAESI Act the Civil Court lacks jurisdiction to pass any order of injunction in view of the bar in Section 34 of the said Act. 7. It is contended by learned counsel for the petitioner that plaintiff-petitioner specifically pleaded regarding fraud practiced on plaintiff as well as on bank as at no point of time the petitioner has transacted the property with any body whatsoever. Plaintiff has specifically pleaded that despite her all attempt she could not get where-about the existence of such person namely, Smt. A. Baluki Rao. The so-called sale deed dated 8-4-1974 is a fraudulent document created by impersonation. Since the questions of fraud involved in the suit the jurisdiction of Civil Court cannot be ousted as the authority under the SARFAESI Act cannot adjudicate such a dispute. In support of his contention he has relied on the decision, reported in (2004) 4 SCC 311 : ( AIR 2004 SC 2371 ), Mardia Chemicals Limited v. Union of India. 8. Learned counsel appearing for the opposite party-bank contended that in view of Sections 17, 34 and 35 of the Act which bar the Civil Court jurisdiction to entertain the suit. Hence the impugned order passed by the appellate Court need not be interfered with. In support of his contention he has cited the decision, reported in 2011 (1) OLR 1046 : (AIR 2011 Ori 164), Central Bank of India v. Ram Chandra Sahoo, wherein it was held that default in repayment of loan amount possession notice issued in a complaint case the District Consumer Forum passed interim order. In view of Section 34 of the SARFAESI Act the Consumer Forum a total bar for passing any interim order of injunction against the action taken by the secured creditor under Section 13(4) of the Act. In view of Section 34 of the SARFAESI Act the Consumer Forum a total bar for passing any interim order of injunction against the action taken by the secured creditor under Section 13(4) of the Act. In view of express bar for passing any order of injunction and the Civil Court or other authority has no jurisdiction to entertain any suit in respect of any matter. The words other authorityas interpreted by the Apex Court in the case of Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857 is wide enough to include within it every authority created by a statute and functioning within the territory of India or under the control of the Government of India. Hence the District Consumer Disputes Redressal Forum comes within the meaning of other authority. 9. Considering the contention raised by the learned counsel for the parties and taking into consideration the decision cited above though Section 17 was amended after the decision of the Mardia Chemicals ( AIR 2004 SC 2371 ) (supra) however the Apex Court in the case of Authorised Officer, Indian Overseas Bank v. M/s. Ashok Saw Mill, reported in AIR 2009 SC 2420 held that it cannot be said that the Tribunal DRT had no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under Section 13(4) of the Act. On the other hand the law is otherwise and it contemplates that the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT. 10. Section 17 of the Act confers right to appeal. Any person including borrower aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under this Chapter, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty five days from the date on which such measure had been taken. 11. In view of the discussions made hereinabove this Court is not inclined to interfere with the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India. 11. In view of the discussions made hereinabove this Court is not inclined to interfere with the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India. However it is open to the petitioner to approach the aforesaid authority by filing appeal along with an application under Section 5 of the Limitation Act, in such event the said authority shall condone the delay liberally in filing the appeal and dispose of the same in accordance with law. Accordingly the writ petition is disposed of. Order accordingly.