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Himachal Pradesh High Court · body

2019 DIGILAW 109 (HP)

Aruna Bedi v. Narinder Rana

2019-01-08

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The learned counsel appearing for the defendant No.8, seeks an order being rendered, by this Court, for hence, (a) vacating the orders pronounced, by this Court, on 15.10.2013, upon, OMP No. 4225 of 2013, (b) where through an ex-parte order, of, ad interim injunction was made, and, where under, the non-applicants/defendants No.5 to 8, are, directed to maintain status quo qua the nature, possession, and, title, vis-a-vis, the suit property, (c) and, the plaintiff/applicant also seeks an order, for, making the afore order, being made absolute. The requisite res constroversia, appertains, to a declaratory decree, being espoused by the plaintiff, hence for setting aside the sale deeds, registered at serial No. 568, of, 20.03.2006, and, for setting aside hence sale deeds registered at serial Nos. 887, 888, and, 889 of 30.04.2009, in, the Office of Sub Registrar, Kullu, (d) sale deeds whereof were executed by the General Power of Attorney, of, the executant concerned. However, the afore general power of attorney, copy whereof stand appended, with, the list of documents, is, contended to be stained, with, a vice of fictitiousness, and, thereafter any loans raised, upon, the properties, embodied in the afore sale deeds, (e) and, in respect whereof proceedings are launched under the Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (hereinafter referred to as “SRFAESI” Act), (f) and, are pending before the Debt Recovery Tribunal, Chandigarh, (g) and, there through obviously hence the borrowed money(ies), are, concerted to be realized, through, the afore apposite statutory mechanism, (h) rather, are, concomitantly unrealizable therefrom. 2. The defendants concerned, in, their written statement(s), denied, the factum of any vice of fraudulence, rather gripping the afore documents, (i) and, rather, a, vehement contention stand raised in the apt reply (ii) that given the bar, of, jurisdiction, created under a statutory contemplation, borne in Section 34 of the SRFAESI Act, provisions whereof stand extracted hereinafter, (iii) this Court being barred to entertain the instant suit, (iv) and, also a further contention, is reared, that, the order concerted, to be vacated, rather precluding the further progresses, being made, upon, the lender bank's application, pending, before the DRT, Chandigarh. (v) Initially, the rigor of the statutory bar,as, stands encapsulated, in Sections 34 and 35 of the SRFAESI Act, provisions whereof stands extracted hereinafter, rather casts a strict embargo, against, any civil proceedings being maintained before the Civil Courts, vis-a-vis, any matter falling within the domain of SRFAESI Act, and, the rigor of the afore bar is strengthened by the mandate occurring in Section 35 of the SRFAESI Act, (vi) where with in, a categorical prohibition, is, cast qua despite any mandate in consistent therewith occurring any law for the time being in force, and, in any instrument, holding, the afore effect by virtue of such law, (v) also not rendering maintainable, any civil suit, before the Civil Courts, vis-a-vis, any subject matter qua wherewith statutory proceedings, stand, launched before the Debt Recovery Tribunal concerned. The afore view is also encapsulated, in, a judgement rendered, in a case titled as Smt. Anjana Naggadia vs. Branch Manager, Dena Benk and another, reported in AIR 2011 Chhattisgarh 61, wherein, it stands pronounced, that, a declaratory suit for title, maintained before the Civil Court, along with, a espoused relief therein qua rendition of a decree, for, permanent prohibitory injunction, being not maintainable, conspicuously, in the face, of, the afore statutory estoppel(s), borne in Section 34 of the SRFAESI Act. Provisions of Sections 34, and, 35 of the SRFAESI Act, read 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 (51 of 1993). 35. The provisions of this Act to override other laws.—The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 3. 35. The provisions of this Act to override other laws.—The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 3. Be that as it may, in a judgment rendered, in a case titled as Allahabad Bank vs. Canara Bank through its Branch Manager, Agra and Ors., reported in AIR 2012 Allahabad 77, a categorical expostulation of law occurs (i) qua the coinage “any person” in Section 17(1) taking, within its fold, borrower, guarantor or any other person, who, may be affected by an action, initiated under section 13(4), (ii) whereupon, it is to be concluded, that, the action instituted by the lender bank, before the Debt Recovery Tribunal, against, the guarantors or against the borrowers, being rather maintainable there before. Though, the afore expostulation of law, as, borne in the afore judgments, brings forth, the trite principle of law, qua there being an absolute statutory bar, against, the maintainability of a suit, for declaration of title, and, for permanent prohibitory injunction, vis-a-vis, any property, in respect whereof, borrowings are made from the lender bank concerned, (iii) conspicuously, when in respect whereof also proceedings are reared, for recoveries or realization(s) thereof, before, the Debt Recovery Tribunal concerned, the, statutorily contemplated apposite mechanism. (iv) The ambit and amplitude, of, the recoursing's by the lender bank, vis-a-vis, the statutory mechanism(s), embodied in the SRFAESI Act, extending also, vis-a-vis, the guarantors besides obviously, vis-a-vis, the borrowers. Since, apparently the statutory proceedings, are, pending before the Debt Recovery Tribunal, Chandigarh, and, are reared at the instance, of the lender bank, for, its hence there through rather realizing the sums borrowed, (v) and, in respect whereof, and, for realization thereof, the afore sale deeds, are constituted, as, the requisite securities, reiterately for hence ensuring the realization of the borrowed sums, (vi) thereupon, prima facie, the, hereat espousal, of, the plaintiff, for, rendition, of, a declaratory decree, for setting aside the afore sale deeds, and, also qua any relief for permanent prohibitory injunction, as, embodied in the plaint, may not maintainable before this Court. 4. 4. The afore conclusions, do support, the contention raised before this Court, by the learned counsel for defendant No.8, who, is obviously striving, to, make a motion, before, this Court, to, rescind or to recall the orders pronounced, by this Court, on 15.10.2013. Though, the learned counsel appearing for the plaintiff/applicant, has contended, with much vigour before this Court, that, the relevant securities, comprised in the afore referred sale deeds, are stained with an inherent vice of fraudulence, (i) whereupon, in case the relief espoused by the defendant No.8, is granted, thereupon, irreparable loss in pecuniary terms, rather being visited upon her, (ii) and, obviously, in, the DRT, proceeding to make an order, for realizing the borrowed sums, from the securities, which are otherwise stripped, with, an inherent malady of fraudulence, would render hence frustrated, the afore endeavour of the plaintiff, and, obviously till an adjudication is made, upon, the extant civil suit, vis-a-vis, the valid execution of the sale deeds, by the GPA thereof, (iii) there upto, this Court rather not allowing, the, defendants' prayer, for, recalling of the order pronounced, on 15.10.2013, upon, OMP No. 4225/2013, (iv) rather this Court proceeding to make absolute, the, afore order, and, it making a expeditious decision, upon, the civil suit. In making the afore espousal, the learned counsel appearing for the plaintiff, placed reliance, upon, a judgement of the Hon'ble Apex Court, rendered, in a case titled as Nahar Industrial Enterprises limited vs. Hong Kong and Shanghai Banking Corporation, reported in (2009) 8 SCC 646 , (v) where through, the Hon'ble Apex Court rather granted relief to the borrower, vis-a-vis, the civil suit concerned, being maintained before the Punjab and Haryana High Court, (vi) and, obviously reversed the latter Court's verdict, for, transfer of the civil suit, from, the civil courts concerned, to, the DRT concerned. The learned counsel appearing for the plaintiff, makes, dependence, upon, paragraphs No.105 and 106, of the verdict rendered by the Hon'ble Apex Court, in, Nahar Industrial case (supra), paragraphs whereof stands extracted hereinafter:- “105. The civil court indisputably has the jurisdiction to try a suit. If the suit is vexatious or otherwise not maintainable action can be taken in respect thereof in terms of the Code. The civil court indisputably has the jurisdiction to try a suit. If the suit is vexatious or otherwise not maintainable action can be taken in respect thereof in terms of the Code. But if all suits filed in the civil courts, whether inextricably connected with the application filed before the DRT by the banks and financial institutions are transferred, the same would amount to ousting the jurisdiction of the civil courts indirectly. Suits filed by the debtor may or may not be counterclaims to the claims filed by banks or financial institutions but for that purpose consent of the plaintiff is necessary. 106. It is furthermore difficult to accept the contentions of the respondents that the statutory provisions contained in Sections 17 and 18 of the DRT Act have ousted the jurisdiction of the civil court as the said provisions clearly state that the jurisdiction of the civil court is barred in relation only to applications from banks and financial institutions.” However, any dependence thereon is misplaced (vii) as the Hon'ble Apex Court, while, construing the import, of, the statutory provisions borne in Sections 17, and, in 18, of, the DRT Act, (viii) where through, the jurisdiction of the civil Courts, is barred, and, hence made, a, further conclusion, qua, the said bar rather holding clout only, vis-a-vis, the appoiste applications maintained by the lender banks or financial institution, before the Debt Recovery Tribunal concerned, (ix) for hence there through, theirs realising the debt or borrowings, made therefrom by the debtor concerned. Significantly, the impact, of, the apposite statutory estopple, as, contemplated in the afore provisions, of, the SRFAESI Act, rather visibly remained undwelt upon, nor any adjudication, hence stood meted thereon, (x) hence rendering the afore decision to be inapplicable, vis-a-vis, the hereat prevalent factual scenario, wherein rather the afore relevant statutory provisions, are, squarely attractable. 5. Significantly, the impact, of, the apposite statutory estopple, as, contemplated in the afore provisions, of, the SRFAESI Act, rather visibly remained undwelt upon, nor any adjudication, hence stood meted thereon, (x) hence rendering the afore decision to be inapplicable, vis-a-vis, the hereat prevalent factual scenario, wherein rather the afore relevant statutory provisions, are, squarely attractable. 5. Be that as may, the culling, of, the afore parameter, as, borne in the hereinabove extracted paragraph, does, however, not validate the espousal of the counsel, for, the plaintiff qua the mandate borne therein rather supporting his contention, (i) given the application maintained, before the DRT hence being preferred by the lender bank concerned, (ii) and, when hence the statutory bar, is, attracted, upon, the afore application, being maintained by the financial institution concerned, and, by the lender bank concerned, before the DRT concerned, and, thereupon, dehors, any purported fraudulence, gripping the afore securities, and, where through, rather the realizing, of, borrowings, is/are, strived to be made by the lender bank, render the apposite strivings acceptable to this Court, (iii) given, the, rigid statutory bar, as, encapsulated in Section 34 of the SRFAESI Act, being rather neither belittled or denuded, rather this Court, acting, hence within the domain, of, the afore parameters, as, stand borne therein. 6. 6. Be that as it may, the afore referred, sale deeds, purportedly gripped, with, a vice of fraudulence also the apposite GPA, maintained with the Registrar concerned, were summoned before this Court, for perusal(s) thereof, and, all make evident disclosure, qua all, carrying photographs, of, the plaintiff, along with the Sub Registrar concerned, (i) thereupon, prima facie the afore Act of registration(s), when is performed, by a public servant, in discharge of his public function(s), (ii) and, when hence a presumption of truth is attributed thereto, (iii) AND, rather with no potent material existing on record or being placed on record, for, dislodging the afore presumption, (iv) thereupon, it hence galvanizes, immense fortification, (v) besides with the receipts, in, respect of the sale consideration, receipt(s) whereof stand appended with the list of documents, filed by the defendants, being not denied to be scribed, in the hands of the plaintiff, and, also when they stand witnessed, by apposite witnesses thereof, (vi) thereupon, even if any stain of any fraudulence, grips the afore documents, rather effects thereof, being subsumed or waned, by the afore scribings, of, receipt(s) qua sale consideration(s), hence, by the plaintiff. 7. For the foregoing reasons, there is no merit in the instant application bearing OMP No.4225 of 2013, and, it is dismissed accordingly. In sequel, the order rendered on 15.10.2013 is vacated. However, it is made clear that the findings recorded hereinabove shall have no bearings on the merit of the case.