V. GOPALA GOWDA, J. ,, J.

( 1 ) THESE two appeals are filed against the orders dated 10-1-2005 passed by the Trial Court on LA. No. II filed by the UCO Bank under order 7, Rule 11 of the CPC rejecting the plaints holding that the suits are barred under clause (d ). The rejection of plaints amounts to decrees and therefore appeals are filed.

( 2 ) THE facts and question of law involved in both the appeals are common and hence they are heard together and disposed of by this common judgment.

( 3 ) THE brief facts leading to these appeals are that, UCO Bank has given loan by mortgaging some properties. Since default was committed by the borrowers in the matter of repayment, the Bank approached the debt Recovery Tribunal and steps had been taken to sell the mortgaged properties in public auction. At that juncture, the plaintiffs filed the suits for partition of the joint family properties, which also includes the properties mortgaged to the Bank, and obtained status quo order. In those circumstances, the Bank filed I. A. No. II under Order 7, Rule 11 (d) of the CPC requesting to reject the plaints on the ground that suits are barred under Section 34 of the Securitisation and Reconstruction of financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Act')- The Trial Court allowed the applications and consequently rejected the plaints. Aggrieved by the same these two appeals are filed.

( 4 ) MR. H. Subramanya Jois, learned Senior Counsel appearing for the appellants, cited the decision of the Madras High Court in Arasa Kumar v Nallammal, (2005)2 BC 127 (Mad.) wherein it is held that Section 34 of the Act is no bar for the Civil Court to decide the rights of the parties in a suit for partition. Paragraphs 30 and 31 of the said decision is extracted hereunder:"30. Section 9 of the CPC and bar of jurisdiction created under relevant sections in respect of the Karnataka Co-operative societies Act, 1959, Arbitration and Conciliation Act, 1996 and also section 29 of the Recovery of Debts Due to Banks and financial Institutions Act, 1993 and under Rule 40 of the income-tax (Certificate Proceedings) Rules, 1962 an also the bar under the Tamil Nadu Hindu Religious and Charitable endowments Act 1959 were all concsidered by this Court and the apex Court as referred supra and now, it is manifestly clear that the power under Section 34 of the Securitisation and reconstruction of Financial Assets and Enforcement of Security interest Act, 2002, is not absolute and the same is subject to certain restrictions, they are: (1) that the parties, who filed the suit must be a party to the liabilities created in favour of the secured creditor; (2) the disputes between the parties could be resolved under the provisions of the Act itself; (3) that if the claim made by the parties is outside the jurisdiction of the Debts Recovery Tribunal or the Appellate tribunal or any action taken or to be taken under this Act and also under the Recovery of Debt Due to Banks and financial Institutions Act, 1993 and the dispute raised by the parties cannot be adjudicated by any of the Tribunal or authority, created under the Act or under any other Act, the right of the parties to approach the Civil Court for appropriate relief cannot be deprived and taken away. 31. Admittedly, in our case, the petitioners have filed the suit for partition including the item, in respect of which, the 3rd respondent taken out proceedings to bring the same for sale without the intervention of the Court and till the rights of the parties are determined by the Civil Court, and the Civil Court alone could decide and determine the rights of the parties in respect of their respective claims in the suit for partition, the 3rd defendant, though a secured creditor, cannot bring the property for sale by invoking the bar under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of security Interest Act or the Bar under Section 13 o

Click Here to Read the rest of this document