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2023 DIGILAW 2199 (ALL)

Aryavrat Bank Branch, District Aligarh v. Malka Bansal

2023-09-22

J.J.MUNIR

body2023
JUDGMENT : (J.J. Munir, J.) 1. This revision is directed against an order of Mr. Mohd. Firoz, Civil Judge (Sr. Div.), Aligarh dated August the 22nd, 2022, rejecting the defendant-revisionist’ application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) made in Original Suit No.985 of 2021. 2. The plaintiff-opposite party Nos.1 and 2, Smt. Malka Bansal and Km. Keshvi Bansa, who shall hereinafter be called ‘the plaintiffs’ (unless the context requires a different reference), instituted O.S. No.985 of 2021 in the Court of the Civil Judge (Sr. Div.), Aligarh on 13.12.2021 for the relief of permanent prohibitory injunction. 3. The facts leading to the suit and the plaintiffs’ case shortly put is that House No.2/473, Vishnupuri, Lane next to Sumangalam Nursing Home, Police Station Quarsi, District Aligarh (for short, ‘the suit property’) was built on a part of land taken on lease by Shiv Prasad Bansal on 06.10.1937. It bore Plot No.40. Shiv Prasad Bansal died on 20.04.1973. He was survived by his heirs and LRs, to wit, Satyendra Kumar Bansal, Devendra Kumar Bansal and Vipin Kumar Bansal. In a family settlement, the suit property was acknowledged to the share of Satyendra Kumar Bansal. His name was recorded in the records of the Vishnupuri Sahkari Awas Samiti Limited on 20.07.1995. Satyendra Kumar Bansal expired on 01.11.2005. After his demise, the name of his heirs was not mutated in the revenue records. Amongst the plaintiffs, Smt. Malka Bansal is Satyendra Kumar Bansal’s widow whereas Km. Keshvi Bansak is his daughter. According to the plaintiffs’ case, they are residents in the suit property. Both the plaintiffs are women. Smt. Malka Bansal is 82 years old and a widow. She is permanently handicapped. Km. Keshvi Bansal is an unmarried woman. It is the plaintiffs’ case that defendant No.1, the Aryavart Bank, Branch Ramghat, Aligarh, represented by its Branch Manager intend to illegally occupy the suit property whereas the said property has never been mortgaged with defendant No.1, the Aryavart Bank. According to the plaintiffs, no one has mortgaged the said property to secure any kind of loan, availed from defendant No.1. 4. It is the plaintiffs’ case that the suit property is a house, built on land, which is leased for a duration of 80 years. For the said reason, it cannot be the subject matter of a mortgage to secure a loan. 4. It is the plaintiffs’ case that the suit property is a house, built on land, which is leased for a duration of 80 years. For the said reason, it cannot be the subject matter of a mortgage to secure a loan. The land on which the suit property, comprising the plaintiffs’ residential house stands, is owned by defendant No.2 to the suit, the Vishnupuri Sahkari Awas Samiti Limited, Surya Marg, Vishnupuri, Aligarh. The land comprising the suit property was taken on lease through a registered lease deed 06.10.1937 by Smt. Malka Bansal’s husband’s father, Shiv Prasad Bansal. There are then allegations, already set out hereinbefore, showing devolution of the suit property on his three sons and heirs followed by a family settlement. The settlement, where the suit property was acknowledged to have come to the share of Smt. Malka Bansal’s husband, the late Satyendra Kumar Bansal, was declared in a suit between the three sons of Shiv Prasad Bansal being O.S. No.118 of 1986, decided by the Civil Judge, Aligarh. Satyendra Kumar Bansal was mutated, again as already said, in the records of the Vishnupuri Sahkari Awas Samiti Limited on 24.07.1975 as a lessee. In the assessment records of the Nagar Nigam, the late Satyendra Kumar Bansal was recorded as owner of the suit property. Upon the demise of Satyendra Kumar Bansal on 01.11.2005, the name of his heirs have not been recorded in the annual assessment register, relating to house tax. The suit property continues to be recorded in the name of Satyendra Kumar Bansal. It is also pleaded that in all relevant records, Satyendra Kumar Bansal continues to be recorded as the lessee of the suit property. The plaintiffs’ case is that the Aryavart Bank, defendant No.2 is on the look out to grab the plaintiffs’ property. On 18.11.2021 at 12 noon, the employees of the said Bank alighted and placed locks on the main door of the residential house, and, further, on the factory manufacturing bags, located in the suit property. The office of the factory was also sealed by putting it under a lock. The Bank posted two private security guards. According to the plaintiffs, for the purpose of their residence, two rooms, a kitchen, toilet and a small window fixed in the main gate, were left open. 5. The office of the factory was also sealed by putting it under a lock. The Bank posted two private security guards. According to the plaintiffs, for the purpose of their residence, two rooms, a kitchen, toilet and a small window fixed in the main gate, were left open. 5. It is the plaintiffs case that on account of posting of the security guards by the Aryavart Bank, defendant No.1 in the suit property, their privacy is being violated. In addition, it is pleaded that Smt. Malka Bansal’s medicines were also placed in the room, which defendant No.1 has illegally sealed. According to the plaintiffs, they are not the owners of the suit property, which defendant No.1 have sealed. They are the widow and daughter of the lessee, Satyendra Kumar Bansal. The suit property is an old house, which, according to law, without a no objection certificate granted by defendant No.2, the Vishnupuri Sahkari Awas Samiti Limited, cannot be mortgaged to secure a loan. Still, the defendants (perhaps a reference to defendant No.1 alone) unlawfully and illegally has caused the suit property to be sealed and in connivance with land mafiosi as well as antisocial elements, the said defendant would soon put the suit property to auction. 6. The plaintiffs has further on pleaded that according to defendant No.1, the suit property has been mortgaged to secure a loan, and, before the said loan was granted, the Bank Counsel, vide his report dated 26.11.2016, opined that there was no requirement of a no objection certificate by the Vishnupuri Sahkari Awas Samiti Limited, in order to secure the loan sanctioned with the suit property mortgaged. It is pleaded further that in the same connection when the Oriental Bank of Commerce was approached, the Bank Counsel there vide report dated 27.06.2016 has opined that since the suit property is a lease-hold, permission of the lessor, that is to say, the Vishnupuri Sahkari Awas Samiti Limited is essential. The Oriental Bank of Commerce had declined to sanction a loan on the security of the suit property, it being a lease-hold. The locks placed on the house, comprising the suit property, are illegal and defendant No.1, the Bank have no legal authority to keep the said property sealed. The Oriental Bank of Commerce had declined to sanction a loan on the security of the suit property, it being a lease-hold. The locks placed on the house, comprising the suit property, are illegal and defendant No.1, the Bank have no legal authority to keep the said property sealed. The plaintiffs have asserted that they have asked defendant No.1 to cause their locks and seals to be removed and also to withdraw their security men, but they have refused. Accordingly, the plaintiffs have been compelled to institute the suit. The plaintiffs have sought a permanent prohibitory injunction in the following terms (translated into English from Hindi): “That defendant No.1, their agents and servants etc. be ordered to remove the unlawfully and illegally placed locks, remove seals and withdraw the security guards placed/deployed on the plaintiffs’ residential House No.2/473, Vishnupuri, Lane next to Sumangalam Nursing Home, Police Station Quarsi, District Aligarh and further not to interfere in the plaintiffs’ privacy or use of the house in any manner.” 7. Defendant No.1, the Aryavart Bank, apart from putting in their written statement contesting the suit, filed an application under Order VII Rule 11 of the Code. In the application, it is urged that plaintiff No.1’s son and brother of the second plaintiff, Nakul Bansal, son of the late Satyendra Kumar Bansal, is the sole proprietor of the firm called, M/s. Sai Refrigeration. Nakul Bansal applied for a cash credit limit to the Bank in the sum of Rs.65 lacs and a further sum of Rs.24 lacs, to be sanctioned by way of a term loan. These were sanctioned and bear loan account Nos. 120530110000029 and 120570210000002, respectively. A personal guarantee for repayment of the loans was given by Nakul Bansal as proprietor of the firm, last mentioned. In addition, personal guarantees were given by his brothers, Saurabh Bansal, mother, Smt. Malka Bansal (plaintiff No.1) and sister Km. Keshvi Bansahl (plaintiff No.2) to secure the cash credit limit and the term loan sanctioned by the Bank. In order to further secure the loan, the necessary memo dated 24.01.2017 was executed by Nakul Bansal, Saurabh Bansal, Smt. Malka Bansal and Km. Keshvi Bansal, mortgaging the suit property with the Bank on 24.01.2017. Along with the memo aforesaid, the title deed dated 06.10.1937 in original was deposited with the Bank by the persons aforesaid. 8. In order to further secure the loan, the necessary memo dated 24.01.2017 was executed by Nakul Bansal, Saurabh Bansal, Smt. Malka Bansal and Km. Keshvi Bansal, mortgaging the suit property with the Bank on 24.01.2017. Along with the memo aforesaid, the title deed dated 06.10.1937 in original was deposited with the Bank by the persons aforesaid. 8. The other son of plaintiff No.1, Saurabh Bansal and the second plaintiff’s brother, who is the sole proprietor of the firm, known as M/s. Medical Business House, applied for a cash credit limit for the purpose of his business to the Bank, worth Rs.60 lacs. This cash credit limit was sanctioned and assigned Account No. 120530110000031. This cash credit limit was secured by the personal guarantees of Saurabh Bansal’s brother Nakul Bansal, his mother Smt. Malka Bansal (plaintiff No.1) and sister Km. Keshvi Bansal (plaintiff No.2). In addition, a memo dated 21.02.2017 was jointly executed by Saurabh Bansal, Smt. Malka Bansal, Km. Keshvi Bansal and Nakul Bansal, mortgaging the suit property in favour of the Bank. For the purpose of creating the mortgage, the title deed relating to the suit property dated 06.10.1937 was deposited with regard to Loan Account No. 120562610000143, as well. In short, therefore, according to the Bank, the suit property has been mortgaged with the Bank to secure two cash credit limits and one term loan – two of these availed by Nakul Bansal, and, the other, by Saurabh Bansal, sons of plaintiff No.1 and brothers of plaintiff No.2. The original title deed of 06.10.1937 has been deposited with the Bank to create an equitable mortgage. 9. Defendant No.1 has said that the loanees, Nakul Bansal and Saurabh Bansal failed to maintain financial discipline and their loan accounts became irregular. In consequence, these Bank accounts were declared non-performing assets. It is the case of defendant No.1 that these material facts have been suppressed by the plaintiffs completely, while instituting the present suit. It is further on said that in consequence of the loan accounts of Nakul Bansal and Saurabh Bansal being declared non-performing assets by defendant No.1, the plaintiffs were served with a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the SARFAESI Act) on 10.04.2019 and 24.07.2019. It is further on said that in consequence of the loan accounts of Nakul Bansal and Saurabh Bansal being declared non-performing assets by defendant No.1, the plaintiffs were served with a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the SARFAESI Act) on 10.04.2019 and 24.07.2019. Later on, plaintiff Nos.1 and 2 were served with notices under Section 13(4) of the Act last mentioned dated 29.08.2019 and 27.11.2019, respectively, taking symbolic possession of the suit property. These notices were published on 30.08.2019 and 29.11.2019 in two newspapers. After these measures, defendant No.1 applied to the Collector under the SARFAESI Act to take physical possession. 10. The two applications made for the purpose came up before the Additional District Magistrate (Finance and Revenue), Aligarh, who vide orders dated 20 & 27.01.2021 allowed the same and directed physical possession to be taken. The necessary police aid was directed to be given. It is in pursuance of aforesaid orders, passed under Section 14 of the SARFAESI Act, that the Additional City Magistrate-II, Aligarh along with the Police, assisted defendant No.1 in taking physical possession of the suit property on 18.11.2021. At the time of taking physical possession, the plaintiffs and the two loanees, Saurabh Bansal and Nakul Bansal made a written application dated 18.11.2021 to retain physical possession of necessary accommodation. It is on the said application that these plaintiffs and the two loanees were given permission to use two rooms, a kitchen, toilet and a bathroom for a period of 15 days. At the time of taking physical possession, the City Magistrate-II, Aligarh along with the Police sealed the entire property, mentioned in Paragraph No.7 of the plaint, and, for the purpose of security, deputed security guards there. It is submitted that possession of the suit property being taken in proceedings under Section 13(2), 13(4) and 14 of the SARFAESI Act, the suit is barred under Section 34 of the Act last mentioned, necessitating a rejection of the plaint under Order VII Rule 11 of the Code. It is submitted that possession of the suit property being taken in proceedings under Section 13(2), 13(4) and 14 of the SARFAESI Act, the suit is barred under Section 34 of the Act last mentioned, necessitating a rejection of the plaint under Order VII Rule 11 of the Code. It is also mentioned in the application that the suit has been instituted on 13.12.2021, after possession of the secured assets/ suit property was taken on 18.11.2021 by defendant No.1, whereas the plaintiffs had their remedies under Section 17 of the SARFAESI Act, before the Debts Recovery Tribunal, against measures taken under Sections 13(4) and 14 of the said Act. According to defendant No.1, the plaintiffs have no right to maintain the suit, which is clearly barred by law. 11. The learned Trial Judge by the impugned order dated 22.08.2022 has rejected the first defendant’s application under Order VII Rule 11 of the Code and directed the suit to proceed. 12. Aggrieved, defendant No.1 has instituted this revision. 13. Heard Mr. Mata Prasad, Advocate holding brief of Mr. Ramesh Kumar Shukla, learned Counsel for defendant No.1/ revisionist, Mr. Ashok Pandey, learned Counsel for the plaintiff-opposite party Nos.1 and 2 and Mr. Akarsh Dwivedi, learned Counsel for respondent No. 3-Vishnupuri Sahkari Awas Samiti Limited and perused the records. 14. The records of the suit summoned from the Trial Court have been perused. 15. The Trial Judge has remarked in the order impugned that a perusal of the plaint shows that it is not averred there that the suit property is mortgaged with defendant No.1 to secure a loan. Rather, the property is held on lease, on account of which it cannot be mortgaged. The residential house standing on the suit property was constructed by the first plaintiff’s husband’s father after taking land on lease. The said property was mutated in the name of the first plaintiff’s husband and the second plaintiff’s father as its lessee on 24.07.1995. After demise of the first plaintiff’s husband the second plaintiff’s father on 01.05.2010, no partition of the property has taken place and none of his heirs have been mutated. The said property was mutated in the name of the first plaintiff’s husband and the second plaintiff’s father as its lessee on 24.07.1995. After demise of the first plaintiff’s husband the second plaintiff’s father on 01.05.2010, no partition of the property has taken place and none of his heirs have been mutated. The Trial Court has remarked that from these averments in the plaint, it is evident that the suit property is said to be in the name of Satyendra Kumar Bansal, the husband of plaintiff No.1 and the father of the second plaintiff, whereas defendant No.1 has sanctioned loans in favour of Nakul Bansal and Saurabh Bansal. The said defendant has not produced any document to show that at the time of sanction of the loan, it was the suit property that was mortgaged to secure it. The learned Trial Judge distinguished the principle laid by the Supreme Court in State Bank of Patiala v. Mukesh Jain and another, (2017) 1 SCC 53 , holding that wherever proceedings are initiated under Section 13 of the SARFAESI Act, a suit to challenge the same before the Civil Court would be barred under Section 34 of the said Act on ground that the said authority proceeds on the assumption that the suit has been instituted after initiation of proceedings under the SARFAESI Act, whereas in the present suit, the plaintiffs say that the suit property neither stands in the loanees’ name nor the guarantors. On the said reasoning, it is remarked that the facts of their Lordships’ holding in Mukesh Jain (supra) are very different from those obtaining in the present suit. It is also remarked by the Trial Judge that according to the plaintiffs, the suit property is said to be in the name of the first plaintiff’s husband, who passed away in the year 2005. It is further observed that how the suit property, that was one recorded in the name of the deceased Satyendra Kumar Bansal could be mortgaged, is a matter to be determined on evidence to be led during trial. At this stage, the averments in the plaint alone have to be seen. The objections raised on behalf of defendant No.1 do not fall within the purview of Order VII Rule 11 of the Code. 16. At this stage, the averments in the plaint alone have to be seen. The objections raised on behalf of defendant No.1 do not fall within the purview of Order VII Rule 11 of the Code. 16. Learned Counsel for defendant No.1-revisionist has argued that the suit is ex facie barred by Section 34 of the SARFAESI Act, because in whatever manner presented, the plaintiffs, in substance, seek to challenge measures taken by the Bank under Section 13(4) of the Act, last mentioned. It is further submitted that by suppressing a reference to the three loans, that were availed by the two other heirs of Satyendra Kumar Bansal, the last recorded lessee of the suit property, that is to say, the first plaintiff’s sons and the second plaintiff’s brothers, the suit cannot be maintained by the plaintiffs. It is urged that there is hardly any quarrel on facts that the property was inherited by the late Satyendra Kumar Bansal from his father and he was duly mutated. After his demise, two plaintiffs and the two loanees are his heirs, who have jointly inherited the suit property. It matters little if they have formally partitioned it, or more particularly, the fact which the plaintiffs emphasize, got themselves mutated in Satyendra Kumar Bansal’s stead. It is also urged that there is on record of the Trial Court, copy of an affidavit annexed as Annexure No.1 to the written statement, which shows that plaintiff No.1, Smt. Malka Bansal, plaintiff No.2, Km. Keshvi Bansal, Saurabh Bansal and Nakul Bansal, non-parties, all heirs of the late Satyendra Kumar Bansal, have affirmed the fact that they are owners of the suit property, which has not been acquired under any law or vested in any official assignee or receiver. 17. It is pointed out that a perusal of the affidavit shows that the plaintiffs, along with the two loanees, entered into a loan transaction with the Bank, where they mortgaged suit property. It is emphasized that though the affidavit does not mention the factum of the loan or the mortgage, it carries an affirmation of the joint title held by the plaintiffs together with the two loanees to the suit property. It is emphasized that though the affidavit does not mention the factum of the loan or the mortgage, it carries an affirmation of the joint title held by the plaintiffs together with the two loanees to the suit property. The learned Counsel submits that there is no earthly reason why the plaintiffs would subscribe an affidavit of the kind i.e. Annexure No.1 to the written statement, unless they were to approach defendant No.1, the Aryavart Bank, for some kind of a loan. 18. The attention of the Court has been drawn by the learned Counsel for defendant No.1-revisionist to the plaintiffs' reply, paper No.24-C, put in, in answer to the application under Order VII Rule 11 of the Code, made by defendant No.1-revisionist. In paragraph No.2 of the reply, the fact that Nakul Bansal, one of the two loanees, is the first plaintiff's son and the second plaintiff's brother, is admitted to the plaintiffs, as also the fact that this man availed a cash credit limit and a term loan from defendant No.1-revisionist. The other facts have been denied. The same stand has been taken in paragraph No.3 of the reply aforesaid in answer to paragraph No.3 of the application under Order VII Rule 11 of the Code. Here, the plaintiffs admit the fact that Saurabh Bansal, the other loanee, is the first plaintiff's son and the second plaintiff's brother, and the fact that he has taken a loan from defendant No. 1-revisionist. 19. It is argued by the learned Counsel for defendant No.1-revisionist that it is telltale upon a wholesome reading of the plaint and the attendant circumstances that what the plaintiffs seek to do, is to set up a sham cause of action, with themselves acting as proxies for the loanees Nakul Bansal and Saurabh Bansal, in order to defeat the statutory proceedings taken under the SARFAESI Act before the Civil Court, resorting to patent abuse of the process of Court. It is urged that there are obvious features, which show that proceedings have been taken by defendant No.1-revisionist under the SARFAESI Act in order to enforce their security interest in the suit property. 20. These proceedings have reached culmination with measures being taken under Section 13(4), including symbolic possession. Symbolic possession has subsequently turned to physical possession with enforcement of the secured creditor's rights under Section 14 of the SARFAESI Act. 20. These proceedings have reached culmination with measures being taken under Section 13(4), including symbolic possession. Symbolic possession has subsequently turned to physical possession with enforcement of the secured creditor's rights under Section 14 of the SARFAESI Act. If the two loanees, who are non-parties to the suit, and have set up the plaintiffs, or the plaintiffs themselves by virtue of holding an undivided interest in the property, are aggrieved in any manner by the measures taken under Section 13(4) of the SARFAESI Act, the remedy is before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. The jurisdiction of the Civil Court against measures taken under Section 13(4) or their enforcement under Section 14 is barred by the provisions of Section 34 of the SARFAESI Act. 21. The learned Counsel for the plaintiffs/ opposite parties, on the other hand, submits that this suit is maintainable because in order that the plaint may be rejected under Order VII Rule 11(d) of the Code, it must appear to be barred from a statement of facts made in the plaint; not upon considering what the defendant No.1-revisionist sets up as his defence. It is foreign to the scope proceedings under Order VII Rule 11 of the Code that the Court may consider what the defendant No.1-revisionist has to say in reply. It is not just that the defendant No.1-revisionist's written statement is not to be read. It is that, that the defendant No.1-revisionist's defence in any manner put forward has to be kept out of consideration while judging a motion under Order VII Rule 11 of the Code. The defendant No.1-revisionist cannot be permitted to introduce his defence through the application under Order VII Rule 11 of the Code. The pleas raised in the application under Order VII Rule 11 of the Code, must be confined to the defendant No.1-revisionist pointing out from the averments in the plaint, as to how a cause of action is not disclosed or how the suit is ex facie barred by some provision of law. In support of his contention, he has relied upon the decision of the Supreme Court in Urvashiben and another v. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 . In support of his contention, he has relied upon the decision of the Supreme Court in Urvashiben and another v. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 . It is next submitted by the learned Counsel for the plaintiff-opposite parties that the jurisdiction of the Civil Court is not at all barred, where the action of the secured creditor is actuated by fraud. According to him, this is one of the known exceptions to the rule of ouster laid down by the Supreme Court in the case of Mardia Chemicals Ltd. and others v. Union of India and others, (2004) 4 SCC 311 . The learned Counsel for the plaintiff-opposite parties has drawn the Court's attention in this connection to the plaintiff-opposite parties' reply to the application under Order VII Rule 11 of the Code. 22. He has taken the Court through the contents of paragraph No.17 of the said reply to say that it is the plaintiffs' case that defendant No.1-revisionist's proceedings taken under the SARFAESI Act are founded on false documents and incorrect facts leading to an inference of fraud. Reliance is also placed by the learned Counsel for the plaintiffs-opposite parties upon the decision of the Supreme Court in Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646 . In addition, further reliance has been placed upon the decision of their Lordships of the Supreme Court in Leelamma Mathew v. Indian Overseas Bank and others, 2022 SCC OnLine SC 1601. The last mentioned case has been cited to buttress the principle that in cases of fraud the jurisdiction of the Civil Court is not ousted. Learned Counsel for the plaintiff-opposite parties has in the last pressed in aid of his submissions about jurisdiction being available to the Civil Court in matters, where there is fraud etc. by the secured creditor while taking possession of a secured asset under the SARFAESI Act, the decision of the Supreme Court in Bank of Rajasthan Limited v. VCK Shares & Stock Broking Services Limited, (2023) 1 SCC 1 . 23. by the secured creditor while taking possession of a secured asset under the SARFAESI Act, the decision of the Supreme Court in Bank of Rajasthan Limited v. VCK Shares & Stock Broking Services Limited, (2023) 1 SCC 1 . 23. The question for consideration in this revision is: Whether jurisdiction of the Civil Court to try the suit is barred by Section 34 of The Securitisation And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, rendering the plaint liable to be rejected under Order VII Rule 1(d) of the Code of Civil Procedure, 1908? This question was formulated at the time when the revision was admitted to hearing. 24. It is broadly on the aforesaid question that the learned Counsel for parties have addressed the Court, albeit highlighting different aspects that may compel the Court to travel into some alleys of reasoning leading to an accurate answer to the issue. 25. The submission of the learned Counsel for the defendant No.1-revisionist is that the bar under Section 34 of the SARFAESI Act would clearly be attracted, notwithstanding the fact that nothing is expressly said in the plaint that may bring in an ouster of the Civil Court's jurisdiction. The emphasis by the learned Counsel for the plaintiff-opposite parties on the principle that nothing can be looked into, except averments in the plaint for judging a motion under Order VII Rule 11 of the Code, is a sound principle of general resort, which does not apply to cases, where by a camouflage, subterfuge or clever drafting, a suit otherwise clearly barred by the provisions of an express provision of the law, is attempted to be taken out of its teeth. There is no doubt that the plaint allegations alone have to be read in order to find out if the suit is barred by some provision of the law, but this does not mean that the principle has to be carried to absurd extremes, where a plaintiff, who has deliberately suppressed facts, created a sham cause of action and camouflaged his plaint, should be given the liberty to have his action tried. It is not just the form of the allegations in the plaint, but the substance of it that has to be seen, and, if this Court may dare say, the immediate and obvious circumstances that have been manipulated out of the contents of the plaint to keep the jurisdictional bar at bay. 26. The locus classicus on the issue is the decision of the Supreme Court in T. Arivandandam v. T.V. Satyapal and another, (1977) 4 SCC 467 . Though,T. Arivandandam (supra) was a case that was more about the lack of a cause of action on account of the repeat litigation, where rights of the parties had already been settled in earlier rounds – not so much about a statutory bar to the suit envisaged under Order VII Rule 11(d) of the Act – the crux of the principle is that the plaint has to be meaningfully and wholesomely read to understand if indeed it discloses a tribal cause of action; or else, as it is said, creates just an illusion by resort to clever drafting. This Court would think that the principle would apply not only to a case of creation of an illusory cause of action, where none exists, to abuse the process of Court repeatedly, but also to cases where otherwise a clear statutory bar is got around by the plaintiff to save the Civil Court's jurisdiction, that is otherwise clearly barred by statute. In this connection, the following observations in T. Arivandandam are enlightening: “5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: “It is dangerous to be too good.” 6. The trial court in this case will remind itself of Section 35-A CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.” 27. In the present case, what has been done by the plaintiff-opposite parties is that in order to maintain the action, there is a complete suppression of two facts, to wit, the fact that the suit property was indeed mortgaged, if not by the plaintiff-opposite parties, by the other two co-owners, the sons and brothers of plaintiff Nos.1 and 2, Nakul Bansal and Saurabh Bansal; and, the other facet of the same fact that the plaintiffs were privy to the transaction and guarantors of the loan that Nakul Bansal and Saurabh Bansal had taken, creating an equitable mortgage on the suit property by depositing the original title deed. The other distinct fact, that has been suppressed by the plaintiff-opposite parties in the plaint, are the proceedings that were taken by defendant No.1-revisionist under the SARFAESI Act, commencing from the notice under Section 13(2), the measures under Section 13(4) and the taking of physical possession of the secured asset/ the suit property by resort to the provisions of Section 14. 28. 28. This Court does not think that it is correct principle in circumstances, such as these for the Court to sit blindfolded or with shielded spectacles that read the plaint alone. The Court must, when it is pointed out by defendant No.1-revisionist, look to those features, which if mentioned in the plaint, would have clearly brought in the statutory bar. Here, if the plaintiff-opposite parties had mentioned the facts in the plaint about the three loan transactions by Saurabh Bansal and Nakul Bansal, where the suit property was mortgaged, and the further facts that the plaintiff-opposite parties were guarantors of the said loans, the Trial Judge would certainly have thought differently in construing the statutory bar. He would have most certainly thought against maintainability of the action, if the entire gamut of proceedings under the SARFAESI Act were pleaded in the plaint, that led to the ultimate physical take over the secured asset/ suit property by defendant No.1-revisionist. There is no way that the plaint disclosing the notice under Section 13(2), the notice under Section 13(4) and the proceedings under Section 14, the Trial Judge would still have held the suit not barred by Section 34 of the SARFAESI Act. If these facts have not been cleverly but dishonestly kept out of the plaint by the plaintiff-opposite party Nos.1 and 2, it is the considered opinion of this Court that the learned Trial Judge should have taken cognizance of them when apprised by defendant No.1-revisionist about these. I am fortified in the view that I take by a decision of the Telangana High Court in R.V. Homes (India) Pvt. Ltd. v. Housing Development Finance Corporation Ltd., 2021 0 Supreme (Telangana) 408. In R.V. Homes (India) Pvt. Ltd. (supra), it is observed by B. Vijaysen Reddy, J.: ““11. Though there is no: specific averment in the plaint that the proceedings under the SARFAESI Act have been initiated, since admittedly notice dated 31.08.2015 has been issued under Section 14 of the SARFAESI Act, the Civil Court is empowered to reject the plaint under Order VII Rule 11(d) CPC, on being satisfied that the suit is barred under Section 34 of the SARFAESI Act. A statement in the plaint would not mean that there has to be an admission by the plaintiff or there should a specific statement as such to be made by the plaintiff. A statement in the plaint would not mean that there has to be an admission by the plaintiff or there should a specific statement as such to be made by the plaintiff. It is not an uncommon practice for a legal brain to make a clever drafting to escape the rigours of the provision under Order VII Rule 11(d) CPC. It is stated in the plaint that possession notice dated 31.08.2015 (under Section 14 of the SARFAESI Act) was issued and the copy of the notice is filed alongwith the plaint documents. In fact, in the plaint cause of action it is specifically stated that the defendant tried to interfere with the plaintiffs possession pursuant to notice dated 30.08.2015. The documents filed alongwith the plant will have to be treated as part and parcel of the plaint and can be looked into by the Trial Court while deciding an application under Order VII Rule 11 CPC. 13. The phraseology "suit appears from the statement in the plaint" under Order VII Rule 11(d) CPC denotes that if the Court on reading the contents of the entire plaint forms an opinion that the plaint is barred under any law, the Court is within its jurisdiction to reject the plaint. In the present case, as evident from the plaint pleadings, the petitioner has cleverly avoided to refer to any proceedings initiated under the provisions of the SARFAESI Act; that would not mean that the Court should shut its eyes and does not have to look into the documents annexed to the plaint. Admittedly, the notice dated 31.08.2015 was issued under Section 14 of the SARFAESI Act. Thus, the Court below has rightly held that the proceedings under the SARFAESI Act have been initiated and there is a bar under Section 34 of the SARFAESI Act. Further, it appears that the Court below invoked its jurisdiction under Section 151 CPC and returned the plaint to be presented before the proper forum. Thus, it cannot be said that the petitioner is left without any remedy. For that matter, even the relief of injunction or any other prohibitory relief can be sought for by the petitioner before the DRT.” 29. Thus, it cannot be said that the petitioner is left without any remedy. For that matter, even the relief of injunction or any other prohibitory relief can be sought for by the petitioner before the DRT.” 29. The facts in R.V. Homes (India) Pvt. Ltd. would show that the defendant stood on a better foot so far as the classical principles governing a motion under Order VII Rule 11(d) of the Code is concerned, inasmuch as the documents annexed to the plaint did reveal that proceedings under the SARFAESI Act had been taken, but cleverly avoided mention of in the plaint. The Court held that the papers filed along with the plaint also ought to be looked into. The case here goes a step ahead of that. Nothing was said in the plaint about the loan transaction affecting the suit property between the plaintiff-opposite parties' sons and brothers, and defendant No.1-revisionist. There was a brazen concealment of all that has already been said. In a situation like this, it is not for the Court to feel its hands tied down, for the duty of the Court is not only to read the plaint meaningfully, but wholesomely understand the case, in the circumstances, that the suit has been instituted. 30. This Court is, therefore, of opinion that it would be absolutely permissible for the Court to look into circumstances that are brought to its notice vide an application under Section VII Rule 11 of the Code, short of considering the defendant's pleas to understand what the plaint is really about. If there are circumstances pointed out by the defendant that show that the plaintiff by brazen suppression of very material facts has indulged not just in clever drafting, but a dishonest one, the Court would not be powerless to look into those facts for the purpose of exercising its jurisdiction under Order VII Rule 11 of the Code. 31. If there are circumstances pointed out by the defendant that show that the plaintiff by brazen suppression of very material facts has indulged not just in clever drafting, but a dishonest one, the Court would not be powerless to look into those facts for the purpose of exercising its jurisdiction under Order VII Rule 11 of the Code. 31. The fact that the plaintiff-opposite parties in their reply to the application under Order VII Rule 11 of the Code have admitted the fact that the two loanees are their sons and brothers, the fact that they have admitted that loans were availed by Saurabh Bansal and Nakul Bansal, besides that proceedings under the SARFAESI Act, for a fact were also admitted, leave not the slightest of doubt that all these facts were deliberately suppressed in the plaint to escape the rigors of Section 34 of the SARFAESI Act, which otherwise attach to bar the suit. The Trial Judge ought to have considered it notwithstanding that these facts were not mentioned in the plaint. 32. The submission of the learned Counsel for the plaintiff-opposite parties that it is a case of fraud, where the exception to the rule of ouster of the Civil Court's jurisdiction under Section 34 of the Code would be attracted going by the holding in Mardia Chemicals Ltd. (supra) is absolutely besides the point. If that plea had to be raised to take advantage of the exception in Mardia Chemicals Ltd., all facts and circumstances relating to the loan, that was taken mortgaging the suit property, should have been set out in the plaint and then the particulars of the fraud pleaded on the foot of which the plaintiff-opposite parties sought to maintain the suit. There is no such pleading of that kind. To the contrary, one would think that it is the plaintiff-opposite parties, who have acted in collusion with the two loanees, Saurabh Bansal and Nakul Bansal, their blood relatives, to defeat the rights of the Bank by suppressing the most material facts from the Court. 33. Learned Counsel for the plaintiff-opposite parties has placed reliance upon the decision of the Supreme Court in Nahar Industrial Enterprises Limited (supra) to say that the Civil Court is not completely denuded of its jurisdiction to try a suit in the face of the bar created under Section 34 of the SARFAESI Act. 33. Learned Counsel for the plaintiff-opposite parties has placed reliance upon the decision of the Supreme Court in Nahar Industrial Enterprises Limited (supra) to say that the Civil Court is not completely denuded of its jurisdiction to try a suit in the face of the bar created under Section 34 of the SARFAESI Act. Reliance is placed upon paragraph Nos.97, 105, 110 of the report, that read: “97. A debtor under the common law of contract as also in terms of the loan agreement may have an independent right. No forum has been created for endorsement of that right. Jurisdiction of a civil court as noticed hereinbefore is barred only in respect of the matters which strictly come within the purview of Section 17 thereof and not beyond the same. The civil court, therefore, will continue to have jurisdiction. Exclusion of jurisdiction must be express 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. 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. 110. It must be remembered that the jurisdiction of a civil court is plenary in nature. Unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits.” 34. It is urged on the basis of the observations of their Lordships in Nahar Industrial Enterprises Limited that a suit to challenge a mortgage in enforcement of an independent right under the contract or where the validity of documents etc. is involved, would still be maintainable in the Civil Court. It would be profitable to remember that Nahar Industrial Enterprises Limited was a decision that arose in the context of proceedings before the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short, 'the RDBFI Act'), rather orders of the High Court that transferred a pending suit between parties to that case before the Civil Judge (Jr. It would be profitable to remember that Nahar Industrial Enterprises Limited was a decision that arose in the context of proceedings before the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short, 'the RDBFI Act'), rather orders of the High Court that transferred a pending suit between parties to that case before the Civil Judge (Jr. Div.), Ludhiana to the Debts Recovery Tribunal-3 at Mumbai in exercise of the High Court's power of transfer. There was no decision rendered in the context of the SARFAESI Act and the grounds on which proceedings taken under the SARFAESI Act, can be challenged before a Civil Court. The observations of their Lordships in Nahar Industrial Enterprises Limited would, therefore, be of little assistance to the plaintiff-opposite parties. Rather, the principles in Mardia Chemicals Ltd. would apply so far as the jurisdiction of the Civil Court goes, vis-a-vis the bar under Section 34 of the SARFAESI Act. 35. The decision in Leelamma Mathew (supra) is to its face hardly of any assistance to the plaintiff-opposite parties. It arose out of a suit instituted by a auction purchaser from the Bank that had taken possession of the suit property under the SARFAESI Act. The property taken possession of under the SARFAESI Act admeasuring 54 cents was put to auction. The plaintiff offered Rs.32,05,000/-for the property. The plaintiff's quotation said that the offer is subject to the condition that absolute ownership and vacant possession of the suit property without any encumbrance is handed over. The Bank seems not to have agreed and by a memo informed the plaintiff that in the invitation to the public for tenders, it was said that the suit property would be sold on 'as is where is' and 'as is what is' basis. The Bank asked the plaintiff if she was ready and willing to offer, the bid money and take the property on those terms. The plaintiff declined and said that she would purchase the suit property if absolute ownership, vacant possession and full enjoyment of 54 cents of land, free from all encumbrances, was given to her; not otherwise. The actual physical possession of the property under Section 14 was taken by the Bank later on, which the Tehsildar reported to be 39.6 cents, as the debtor had already transferred 14.40 cents before the creation of the security interest. The actual physical possession of the property under Section 14 was taken by the Bank later on, which the Tehsildar reported to be 39.6 cents, as the debtor had already transferred 14.40 cents before the creation of the security interest. It appears from a report that the transaction between the Bank and the plaintiff went through and a sale certificate for 54 cents dated 21.11.2007 was executed, but the plaintiff was handed over possession of the suit property to extent of 39.6 cents alone. It is, thereafter, that the plaintiff instituted the suit for recovery of damages/ compensation for the shortage in area of land by 14.40 cents as contracted. This suit was not held barred by the provisions of Section 34 of the SARFAESI Act, with their Lordships observing in Leelamma Mathew: “25.Now so far as the submission on behalf of the plaintiff and the finding recorded by the High Court that the suit was barred by Section 34 of the SARFAESI Act is concerned, at the outset it is required to be noted that the suit was for damages/compensation, with respect to the balance land, which could not have been decided by the DRT or Appellate Tribunal, Section 34 of the SARFAESI Act shall be applicable only in a case where the Debt Recovery Tribunal and/or Appellate Tribunal is empowered to decide the matter under the SARFAESI Act. The plaintiff was not challenging the sale/sale certificate. The plaintiff claimed the damages/compensation with respect to the less area. Therefore, the High Court has seriously erred in holding that the suit was barred by Section 34 of the SARFAESI Act.” 36. This was clearly not a suit which in any way sought to undo proceedings taken by the Bank to secure possession of a secured asset held by it in the hands of a debtor, whose loan had become a non-performing asset under the SARFAESI Act. It was a suit by a third party, who had nothing to do with proceedings taken under the SARFAESI Act. Besides, as remarked by their Lordships in Leelamma Mathew, the suit was one for damages for shortage in the area sold by the Bank. Obviously, the bar under Section 34 in that case is not even remotely attracted. For the said reason, no assistance can be derived from the said decision by the plaintiff-opposite parties. 37. Besides, as remarked by their Lordships in Leelamma Mathew, the suit was one for damages for shortage in the area sold by the Bank. Obviously, the bar under Section 34 in that case is not even remotely attracted. For the said reason, no assistance can be derived from the said decision by the plaintiff-opposite parties. 37. The authority of the Supreme Court in VCK Shares & Stock Broking Services Limited (supra), on which reliance is lastly placed by the plaintiff-opposite parties to support their plea that the Civil Court's jurisdiction is not ousted, is a decision rendered in a very different context, again under a different statute. It is a decision under the RDBFI Act, where the question is about the right of a defendant in a claim by the Bank before the DRT to pursue its counter-claim, either before the DRT or by suit before the Civil Court. It is in that context that the jurisdiction of the Civil Court, vis-a-vis the Debts Recovery Tribunal under the the RDBFI Act, has been held not excluded and the remedy of a counter-claim provided through an amendment to the the RDBFI Act, a course of election for the defendant. In the considered opinion of this Court, the decision of their Lordships in VCK Shares & Stock Broking Services Limited relied upon by the plaintiff-opposite parties, has no bearing on the point involved here. 38. In the entire conspectus of facts, this Court is of opinion that the plaint in this case is clearly an instance of abuse of process of Court, designed to avoid the bar under Section 34 of the SARFAESI Act. The plaint is clearly barred on a wholesome understanding of the plaintiff-opposite parties' case, including that deliberately suppressed, under Section 34 of the SARFAESI Act. In the opinion of this Court, therefore, this revision ought to succeed. 39. In the result, this revision succeeds and is allowed with costs. The impugned order dated 22.08.2022 passed by the learned Civil Judge (Sr. Div.), Aligarh in O.S. No.985 of 2021 is hereby set aside and reversed. The application under Order VII Rule 11 of the Code is allowed and the plaint rejected. 40. Let the lower court records be sent down at once to the Trial Judge through the learned District Judge, Aligarh. Let a copy of this judgment be certified to the Trial Judge.