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2019 DIGILAW 1251 (BOM)

Milan Vrajlal Bhavani v. Yes Bank Ltd.

2019-05-04

K.K.TATED

body2019
JUDGMENT : K.K. Tated, J. Heard. 2. Today the matter is kept on board i.e. 04.05.2019 Saturday in Chamber at 1 p.m. at the request of the learned counsel for the appellant who mentioned the matter before this court yesterday 03.05.2019 at 6.45 p.m. in Chamber. 3. By this Appeal from Order, the appellant original plaintiff is challenging the order dated 16.04.2019 passed by Bombay City Civil Court at Bombay in Notice of Motion No.1488 of 2019 in Short Cause Suit No.1710 of 2018 holding that the appellant is not entitled to any relief in the said Notice of Motion on the ground that the Suit itself is not maintainable in view of Section 34 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (in short 'the said Act'). 4. The learned counsel for the appellant submits that the court below erred in coming to the conclusion that Civil Court has no jurisdiction to take any action against the Respondent bank in view of section 34 of the said Act. He submits that appellant original plaintiff filed Short Cause Suit No.1710 of 2018 for various reliefs including restraining Respondent bank from acting pursuant to the notice under section 13(2) and 13(4) of the said Act for auction of the properties of the plaintiff i.e. Flat No.22, Parle Nandanvan CHS,6 Ansari Road, Vile Parle West, Mumbai 400 056. He further submits that they also claimed declaration from the Trial Court that, invocation of said Act by the Respondent bank, original plaintiff, is an act of fraud. He submits that plaintiff has claimed following reliefs in the Suit filed before the Trial Court: "A. That it be held and declared by this Hon'ble Court that the invocation of SARFAESI ACT by the Defendants against the Plaintiff is an act of fraud; B. That it be held and declared by this Hon'ble Court that the instrument, the Loan Agreement dated__________________, is null, void. C. Or in the alternative, it be declared that the Defendants have committed breach of Contract and are invested of no enforceable rights as against the plaintiff, nay, that it be declared that the Plaintiff owes no money to the Defendant and thus is entitled to a negative declaration that no amount is due and further that the respondent bank is duty bound to disburse the further funds to the plaintiffs in terms of the contract entered between the plaintiff and the defendant which are mutually binding and further a perpetual mandatory and prohibitory injunction restraining and prohibiting the respondent from taking recourse to any legal proceedings, whatsoever as against the plaintiff for the enforcement of the rights what so ever if any, be invested in them so too, in any manner interfering with the estate, right, possession, enjoyment of the Plaintiff of his Properties on which the respondent may claim legal, statutory or equitable right; D. If this Hon'ble Court be pleased to declare that the Defendants have committed breach of contract, then the Defendants be directed to remedy the breach by specific performance; E. this Hon'ble Court be pleased to declare that the Plaintiff does not owe any due to the Defendants Bank; F. The mandatory injunction be granted directing the Bank to forthwith restore the financial assistance promised to the Plaintiff; G. A perpetual prohibitory injunction restraining the Defendant nos.1 to 4, from acting in furtherance of the notice for auction of the properties of the Plaintiff Parle Nandanvan CHS, Flat No.22, 6 Ansari Road, Vile Parle West, Mumbai-400056, purportedly under section 13(2) and 13(4), of SARFAESI be granted; H. That it be declared that declaration of the accounts of the Plaintiff as NPA is void; I. That it be further declared that the RBIs Guidelines have no force of law and hence null and void being without any authority of law; J. To declare that the forum contemplated under the RDDBFI Act 1993, the SARFAESI Act 2002, and the insolvency and Bankruptcy Code 2016, have no existence and force in law as the same are in violation of Article 323(B) of the Constitution of India; K. To declare that the forum contemplated under the RDDBFI Act 1993, the SARFAESI Act 2002, and the Insolvency and Bankruptcy Code 2016, provide no forum for the Plaintiff to enforce the remedies which entails in the Plaintiff as against the Defendant Bank; so too no provisions whereunder such remedies could be enforced; L. In the pendency of the above suit, the Defendant Nos.1 to 3 be directed to maintain status-quo; M. For ad-interim and interim reliefs in terms of prayer clause (j) above; N. Since the instant suit was instituted in great emergency, the Plaintiff be allowed to add, amend or delete prayers or any pleadings in the plaint; O. For costs; P. For such other and further reliefs as then nature and circumstances of the case may require." 5. The learned counsel for the appellant further submits that Trial Court failed to appreciate the law declared by the Apex Court in the matter of Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corporation & Ors., (2009) 3 BankCas 539 (SC) The learned counsel for the appellant relies on paragraph 41, 42, 46, 58, 59, 103 and 108 of the authority. "41. The question as to whether a High Court had power to transfer a counter claim to the Debts Recovery Tribunal came up for consideration before Delhi High Court in Cofex Exports Ltd. v. Canara Bank, (1997) AIR Delhi 355 MANU/DE/0500/1997 : AIR 1997 Delhi 355, wherein the High Court opined that Debt Recovery Tribunal is not a court but is a Tribunal having been created by a statute vested with a special jurisdiction to try only applications by banks or financial institutions to recover any debt. Although having regard to the provisions contained in Clauses (a) to (b) of Sub-section (2) of Section 22 of the Act it had all the trappings of a court but it was held not to be a court as such, opining: 38. For reasons more than one, we are of the opinion that a set-off or a counter claim cannot be entertained by a Debt Recovery Tribunal. [...] It has not been conferred with jurisdiction to entertain counter-claim or plea of set-off by reference to the provisions of Order 8 of the CPC. Entertaining a counter-claim or a cross suit or a plea of set-off would not only be without jurisdiction but also an exercise in futility inasmuch as the Tribunal would not adjudicate thereupon nor pass a decree in favor of the defendant against the plaintiff. The law creating Tribunal and conferring jurisdiction on it has not provided for set-off or counter claim being entertained by it just as the Civil Procedure Code does it for civil courts. If a counter claim was to be tried by Tribunal it may have to go into disputes arising between the parties though not 'filling the same character'. There may be disputes which by no stretch of imagination can be tried by Tribunal. Claims preferred by bank or financial institutions are capable of being disposed of by summary enquiry while claims preferred by other persons would not be capable of being so disposed of. There may be disputes which by no stretch of imagination can be tried by Tribunal. Claims preferred by bank or financial institutions are capable of being disposed of by summary enquiry while claims preferred by other persons would not be capable of being so disposed of. The principle of convenience and the mechanics of litigation before Tribunal (as set out in the Act) - both exclude set-off or counter claim being placed before the Tribunal. If set-off, counter claims and cross suits were allowed to be raised before the Tribunal the very object behind its creation will be lost." "42. In relation to the conflict of jurisdiction between the Civil Court and the Tribunal, it was observed: 39. ...Finality shall attach to the findings arrived at and reached by each of the two within its respective jurisdictional competence. Issues heard and decided by the Tribunal shall operate as res judicata and shall bind the parties in the suit before the civil court by virtue of explanation VIII to Section 11 Civil Procedure Code. However, the civil court shall be free to decide such issues as lie within its jurisdictional competence. If the civil court must decide an issue seized by it and within its competence and if there be an unavoidable conflict between the findings recorded by the civil court and by the Tribunal, the finding of Civil Court would obviously override and supersede the findings recorded by the Tribunal for a court is a court and tribunal is a tribunal; the former adjudicates on trial, the later holds only a summary inquiry guided by principles of natural justice as the Act provides." "46. Indisputably, however, after the aforementioned amendments were carried out, the Debts Recovery Tribunal would have jurisdiction to determine the claims of set off and counter-claims. It may be that the bank or the financial institution in terms of the provisions of Sub-section (9) of Section 19 of the Act, despite such counter-claim being treated to be a crosssuits would be entitled to raise a contention that the same should not be determined by the Tribunal. In the event such a contention has not been raised, the Tribunal will have jurisdiction to pass a final judgment both on the claim of the bank or the financial institution on the one hand and the cross-objections of the borrower on the other." "58. In the event such a contention has not been raised, the Tribunal will have jurisdiction to pass a final judgment both on the claim of the bank or the financial institution on the one hand and the cross-objections of the borrower on the other." "58. In regard to the effect of Sub-sections (6) to (11) of Section 14 of the amended Act, it was observed: 16. ...The effect of Sub-sections (6) to (11) of Section 19 of the amended Act is that any defendant in a suit or proceeding initiated by a bank or financial institution can: (a) claim set-off against the demand of a bank/financial institution, any ascertained sum of money legally recoverable by him from such bank/financial institution; and (b) set-up by way of counterclaim against the claim of a bank/financial institution, any right or claim in respect of a cause of action accruing to such defendant against the bank/financial institution, either before or after filing of the application, but before the defendant has delivered his defence or before the time for delivering the defence has expired, whether such a counterclaim is in the nature of a claim for damages or not. What is significant is that Sections 17 and 18 have not been amended. Jurisdiction has not been conferred on the Tribunal, even after amendment, to try independent suits or proceedings initiated by borrowers or others against banks/financial institutions, nor the jurisdiction of civil courts barred in regard to such suits or proceedings. The only change that has been made is to enable the defendants to claim set-off or make a counterclaim as provided in Sub-sections (6) to (8) of Section 19 in applications already filed by the banks or financial institutions for recovery of the amounts due to them. In other words, what is provided and permitted is a cross-action by a defendant in a pending application by the bank/financial institution, the intention being to have the claim of the bank/financial institution made in its application and the counterclaim or claim for setoff of the defendant, as a single unified proceeding, to be disposed of by a common order." "59. It was held: 18. In this case, the first respondent does not wish his case to be transferred to the Tribunal. It was held: 18. In this case, the first respondent does not wish his case to be transferred to the Tribunal. It is, therefore, clear that the suit filed by the first respondent against the Bank in the High Court for recovery of damages, being an independent suit, and not a counterclaim made in the application filed by the Bank, the Bank's application for transfer of the said suit to the Tribunal was misconceived and not maintainable. The High Court, where the suit for damages was filed by the Company against the Bank, long prior to the Bank filing an application before the Tribunal against the Company, continues to have jurisdiction in regard to the suit and its jurisdiction is not excluded or barred under Section 18 or any other provision of the Debts Recovery Act." "103. If the Tribunal was to be treated to be a civil court, the debtor or even a third party must have an independent right to approach it without having to wait for the Bank or Financial Institution to approach it first. The continuance of its counter-claim is entirely dependent on the continuance of the applications filed by the Bank. Before it no declaratory relief can be sought for by the debtor. It is true that claim for damages would be maintainable but the same have been provided by way of extending the right of counterclaim." "108. For the aforementioned purpose, we must bear in mind the distinction between two types of courts, viz., civil courts and the courts trying disputes of civil nature. Only because a court or a tribunal is entitled to determine an issue involving civil nature, the same by itself would not lead to the conclusion that it is a civil court. For the said purpose, as noticed hereinbefore, a legal fiction is required to be created before it would have all attributes of a civil court. The Tribunal could have been treated to be a civil court provided it could pass a decree and it had all the attributes of a civil court including undertaking of a full-fledged trial in terms of the provisions of the Code of Civil Procedure and/or the Evidence Act." 6. The learned counsel for the appellant submits that the Apex Court in this authority specifically held that only Civil Court can give declaration about the fraud committed by the parties. The learned counsel for the appellant submits that the Apex Court in this authority specifically held that only Civil Court can give declaration about the fraud committed by the parties. He submits that in the case in hand, plaintiff made averments in the plaint that the Respondent bank obtained signature on the said agreement by committing fraud. He further submits that not a single pai of loan amount was transferred in his account. He submits that these facts were not considered by the Trial Court. 7. The learned counsel for the appellant also relies on the judgment of the Apex Court in the matter of Dhulabhai Etc. vs. State of Madhya Pradesh and Another,1979 AIR SC 78. Paragraph 35 of the said judgment reads thus: "35. Neither of the two cases of Firm of Illuri Subayya or Kamla Mills can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows :- (1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statue or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply." 8. The learned counsel for the appellant submits that litigant's rights cannot be taken away without hearing them. He further submits that even learned Magistrate passed order on 25.02.2019 in case No.461/SA/2018 without hearing the appellant. It is to be noted that, this court as well as Apex Court in catena of judgments held that it is not necessary for Magistrate to hear the borrower and or notice issued to the guarantor, at the time of deciding application under section 14 of the said Act. 9. The learned counsel for the appellant submits that hence, impugned order is required to be set aside restraining Respondent bank from taking any action against the appellant original plaintiff. He submits that this Hon'ble court be pleased to grant interim relief in terms of prayer clause (a) and (b) of the Civil Application (St.) No.12680 of 2019 filed by them. The learned counsel for the appellant submits that hence, impugned order is required to be set aside restraining Respondent bank from taking any action against the appellant original plaintiff. He submits that this Hon'ble court be pleased to grant interim relief in terms of prayer clause (a) and (b) of the Civil Application (St.) No.12680 of 2019 filed by them. Prayer clause (a) and (b) of the said Civil Application reads thus: "(a) quash and set aside the judgment and order dated 17.04.2019 (Exhibit "E" hereto) passed by the Bombay City Civil Court, Mumbai, in Notice of Motion No.1488 of 2019 in Suit No.1710 of 2018 as null and void, being in violation of the principles of natural justice and statutory provisions, especially Section 9A (2) of the Code of Civil Procedure,1908; (b) grant an ad-interim injunction in favour of the Appellant restraining and prohibiting Respondent No.____, the Advocate Commissioner appointed by the learned Chief Metropolitan Magistrate, Mumbai, by his order dated 25 th February,2019 passed in Case No.461/SA/2018 and/or from executing the warrant issued by the said Respondent in the purported execution of the said order of the learned Chief Metropolitan Magistrate, Mumbai." 10. The learned counsel for the appellant submits that if stay is not granted, irreparable loss will be caused to them. He submits that Respondent bank is taking physical possession of the suit premises today only. 11. On the other hand, the learned counsel for the Respondent bank vehemently opposed for granting any interim relief in the present proceeding. He submits that in the present proceeding, bank has sanctioned sum of Rs.1,37,00,000/- to the appellant on 15.09.2016. By way of security, appellant executed necessary documents in favour of them in respect of the suit flat. He submits that as the appellant failed and neglected to clear the outstanding amount, the bank issued notice under section 13(2) of the said Act dated 15.5.2017 calling upon the appellant to clear the outstanding amount within 60 days from the service of the said notice. He submits that as the appellant failed and neglected to clear the outstanding amount, the bank issued notice under section 13(2) of the said Act dated 15.5.2017 calling upon the appellant to clear the outstanding amount within 60 days from the service of the said notice. He submits that as the appellant original plaintiff failed and neglected to clear their dues, Respondent bank filed case No.461/SA/2019 in the court of Chief Metropolitan Magistrate, Esplanade, Mumbai under section 14 of the said Act for giving police assistance to the Respondent bank to take forcible possession of the suit flat no.22 situated on the 2nd floor in the building known as Parle Nandavan Co-operative Housing Society Limited:, situated at 6 Ansari Road, Vile Parle (West), Mumbai 400 056, admeasuring about 678 sq. ft. built up area i.e. 565 sq. feet carpet constructed on the land bearing C.T.S. 915 lying, being and situated at village Ville Parle, Taluka Andheri and District Mumbai Suburban, within the Registration District and Sub Registration District Mumbai City and Mumbai Suburban. He submits that the learned Magistrate after considering the evidence on record, was satisfied that the Respondent bank has made out a case for allowing their Application under section 14 of the said Act. Hence, the learned Magistrate passed order under section 14 of the said act and directed concerned police authority to provide police protection if necessary, to take peaceful possession of the suit flat. He submits that pursuant to the said order, they applied to the concerned Police Station for providing police protection. He submits that today Advocate Commissioner Anita C. Chauhan respondent no.5 in the present proceeding, approached the concerned Police Station to take possession. He further submits that objection raised by the learned counsel for the appellant about the Jurisdiction of the Trial Court is not maintainable in law. In support of this contention, he relies on the judgment of Division Bench of this court in the matter of Corporation Bank vs. The Hon’ble Chief, Metropolitan Magistrate at Esplanade at Mumbai and Ors., MANU/MH/2937/2018 He relies on paragraph 10,11,12 and 13 of the said Judgement which reads thus: "10. The legal position as regards the ouster of jurisdiction of the Civil Court is no longer res-integra. The legal position as regards the ouster of jurisdiction of the Civil Court is no longer res-integra. By a catena of judicial pronouncements, it is now crystallized that Section 34 of the SARFAESI Act ousts the jurisdiction of Civil Court in respect of any action taken or to be taken in pursuance of any power conferred by or under the SARFAESI Act. 11. A useful reference, in this context, can be made to a pronouncement of the Supreme Court in the case of Jagdish Singh V/s. Heeralal and others, (2014) 1 SCC 479 : MANU/SC/1126/2013 : wherein, after considering the provisions of the Act and the previous pronouncements, the Supreme Court enunciated the legal position as under: "22. Statutory interest is being created in favour of the secured creditor on the secured assets and when the secured creditor proposes to proceed against the secured assets, subsection (4) of Section 13 envisages various measures to secure the borrower's debt. One of the measures provided by the statute is to take possession of secured assets of the borrowers, including the right to transfer by way of lease, assignment or realizing the secured assets. Any person aggrieved by any of the "measures" referred to in sub-section (4) of Section 13 has got a statutory right of appeal to the DRT under Section 17. The opening portion of Section 34 clearly states that no civil court shall have jurisdiction to entertain any suit or proceeding "in respect of any matter" which a DRT or an Appellate Tribunal is empowered by or under the Securitisation Act to determine. The expression 'in respect of any matter' referred to in Section 34 would take in the "measures" provided under subsection (4) of Section 13 of the Securitisation Act. Consequently if any aggrieved person has got any grievance against any "measures" taken by the borrower under sub-section (4) of Section 13, the remedy open to him is to approach the DRT or the Appellate Tribunal and not the civil court. Civil Court in such circumstances has no jurisdiction to entertain any suit or proceedings in respect of those matters which fall under sub-section (4) of Section 13 of the Securitisation Act because those matters fell within the jurisdiction of the DRT and the Appellate Tribunal. Civil Court in such circumstances has no jurisdiction to entertain any suit or proceedings in respect of those matters which fall under sub-section (4) of Section 13 of the Securitisation Act because those matters fell within the jurisdiction of the DRT and the Appellate Tribunal. Further, Section 35 says, the Securitisation Act overrides other laws, if they are inconsistent with the provisions of that Act, which takes in Section 9 CPC as well. 23. We are of the view that the civil court jurisdiction is completely barred, so far as the "measure" taken by a secured creditor under subsection (4) of Section 13 of the Securitisation Act, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal. to determine as to whether there has been any illegality in the "measures" taken. The bank, in the instant case, has proceeded only against secured assets of the borrowers on which no rights of Respondent Nos. 6 to 8 have been crystalised, before creating security interest in respect of the secured assets. In such circumstances, we are of the view that the High Court was in error in holding that only civil court has jurisdiction to examine as to whether the "measures" taken by the secured creditor under sub-section (4) of Section 13 of the Securitisation Act were legal or not. In such circumstances, the appeal is allowed and the judgment of the High Court is set aside. There shall be no order as to costs." 12. The aforesaid pronouncement was relied upon by the Supreme Court in a recent judgment in the case of M/s. Sree Anandhakumar Mills Ltd. v/s. M/s. Indian Overseas Bank and Ors. in Civil Appeal No(s). 7214- 7216 of 2012 decided on 3rd May, 2018. The relevant part of para 4 reads as under: "4. The matter need not engage the Court in any great detail as in view of the law laid down by this Court in Jagdish Singh vs. Heeralal and others it would clear and evident that the suit filed by the second respondent (i.e. O.S. No. 106 of 2009) is not maintainable. The matter need not engage the Court in any great detail as in view of the law laid down by this Court in Jagdish Singh vs. Heeralal and others it would clear and evident that the suit filed by the second respondent (i.e. O.S. No. 106 of 2009) is not maintainable. In Jagdish Singh (supra) this Court after an elaborate consideration of the provisions of the SARFAESI Act, particularly, Section 2(zf), 2(zc), 13(1), 17, 18 and 34, took the view, on almost similar facts, that a suit for partition would not be maintainable in a situation where proceedings under the SARFAESI Act had been initiated. It was also held that the remedy of any person aggrieved by the initiation of proceedings under the SARFAESI Act lies under Section 17 which provides for an efficacious and adequate remedy to a party aggrieved." 13. The learned Counsel for the Petitioner drew our attention to a judgment of a Division Bench of this Court in Central Bank of India v/s. M/s. VHCL Industries Limited dated 03rd July 2018 in Writ Petition (ST) No. 17974 of 2018 with Writ Petition (ST) No. 17978 of 2018 wherein, this Court had noticed that the Court has been coming across suits instituted with a design to frustrate the object of the SARFAESI Act. The relevant part of para No. 9 of the said judgment reads as under: "9. We have come across such suits dime and dozen times. What however is disturbing in the present case is the casual manner in which interim injunctions are granted in both the suits making the provisions of the SARFAESI Act nugatory. It appears that the interim injunctions are granted even without reading the prayers in the Application for interim relief." 12. On the basis of these submissions, the learned counsel for the Respondent bank submits that as on today, they have to recover more than Rs.1,03,00,000/- with interest from the appellant original plaintiff. Therefore, there is no question of granting any interim relief at this stage. 13. Heard. 14. Bare reading of the copy of plaint as well as application filed by the appellant for interim relief before this court clearly shows that appellant wants stay to the order passed by the learned Chief Metropolitan Magistrate, Mumbai dated 25.02.2019 in case No.461/SA/2018. 15. Therefore, there is no question of granting any interim relief at this stage. 13. Heard. 14. Bare reading of the copy of plaint as well as application filed by the appellant for interim relief before this court clearly shows that appellant wants stay to the order passed by the learned Chief Metropolitan Magistrate, Mumbai dated 25.02.2019 in case No.461/SA/2018. 15. It is to be noted that even in the present Civil Application (St.) No.12680 of 2019, appellant has made specific prayer clause (b) that interim relief injunction be granted in favour of applicant appellant restraining Respondent bank Commissioner to take action against them, as per the order below Exhibit 1 in case No.461/SA/2018. The objection raised by the counsel for the appellant about maintainability of the Suit filed in the Civil Court and relying on the judgment of the Apex Court in the matter of Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corporation & Ors.(Supra) prima facie, do not give any right for interim protection in favour of appellant. 16. It is to be noted that specifically Apex Court in the matter of Authorised Officer, State Bank of India vs. Allwyn Alloys Private Limited and Others, (2018) 8 SCC 120 , specifically held that in view of section 34 of said Act, Civil Court has no jurisdiction. Paragraph 8 of the said Judgment reads thus: "8. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, "the 2002 Act"), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the Respondent Nos. 5 and 6 (writ Petitioners) in favour of Respondent Nos. The fact that the stated flat is the subject matter of a registered sale deed executed by the Respondent Nos. 5 and 6 (writ Petitioners) in favour of Respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the Respondent Nos. 5 and 6 (writ Petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and a full-fledged trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law." 17. Not only that, Division Bench of this authority in the matter of Axis Bank Limited v. Madhav Prasad Aggarwal & Ors., (2018) 6 BCR 738 after considering the judgment of the Apex Court including the judgment in the matter of Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corporation & Ors. (Supra) held that in view of section 34 of the said Act, Civil Court has no jurisdiction to entertain such type of Suits. 18. Considering these facts, in view of the law declared by the Apex Court in the matter of Authorised Officer, State Bank of India vs. Allwyn Alloys Private Limited and Others (Supra), I am of the opinion that appellant has not made out a case for interim protection or ad-interim protection in the present matter. In any case, Respondent bank is taking possession today of the suit premises. That cannot be considered at this stage. Hence, following order is passed : a. Ad-interim protection claimed by the appellant as per Civil Application (St.) No.12680 of 2019 is rejected. b. Respondent bank can proceed to take possession of the secured assets according to law. c. Appellant to remove all office objections in Appeal from Order as well as Civil Application on or before 29.06.2019, failing which Appeal from Order shall stand dismissed without referring back to the court. b. Respondent bank can proceed to take possession of the secured assets according to law. c. Appellant to remove all office objections in Appeal from Order as well as Civil Application on or before 29.06.2019, failing which Appeal from Order shall stand dismissed without referring back to the court. d. If all office objections are removed within stipulated time as stated hereinabove, matter to appear on board on 08.07.2019 under the caption for admission.