1. This appeal is directed against the order passed by the Court of the XIII Additional City Civil Judge, Mayo Hall, Bangalore (CCH-22) on I.A. No. II in O.S. No. 27417/09.

2. The facts of the case in brief are that the respondents Nos. 3 to 5 and one more person (who was not made a party to the suit proceedings) availed of the financial assistance from the respondent Nos. 1 and 2. As the security for the repayment of the loan, they have also mortgaged the suit schedule property. As the said borrowers committed default in the payment of amounts, the entire loan was recalled. The respondent Nos. 1 and 2 initiated the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’ for short). The appellant claiming to be the tenant approached the Civil Court seeking the relief of permanent injunction restraining the respondents from interfering with the peaceful possession and the enjoyment of the suit schedule property. In the suit proceedings, the respondent No. 1 filed an application invoking Order VII, Rule 11(d) of CPC for the rejection of the plaint. The Trial Court, by its order, dated 2.6.2010 allowed the said I.A. and rejected the plaint.

1. 3. Sri Vinaya Kumar G.S., the learned counsel for the appellant submits that Section 34 of the SARFAESI Act does not debar a tenant from filing a suit for bare injunction. He submits that the reliance upon the decision of the Apex Court in the case Mardia Chemicals Ltd. versus Union of India and others, reported in AIR 2004 SC 2371: (2004 AIR Kant HCR 1677), is not sustainable, because in the said reported case, only bankers and borrowers were involved; in the instant case, th3e suit is filed by a tenant.

4. He submits that the respondent Nos. 1 and 2 have let loose the gundas to forcibly throw the appellant out of their suit schedule property.

5. Relying on this Court’s decision in the case of Hutchison Essar South Limited versus Union Bank of India represented by its Authorised Officer & another reported in ILR 2007 Kar 4362 : (AIR 2008 Kar 14 : 2007 (6) AIR Kar R 545) he submits that under the proceedings of the SARFAESI Act, a bank can take at the most the symbolic possession; it cannot take the actual possession without following the due process of law. Nextly, he also brought to my notice the decision of the Calcutta High Court rendered in the case of Manager, UCO Bank versus Samar Sarkar and others, reported in AIR 2008 Calcutta 9. The relevant paragraphs of the said decision are extracted hereinbelow:

“10. None of the provision of the said Act authorizes the bank to recover possession from a tenant under the borrower in a mortgaged property in the process of recovery of its dues from its borrower. If that be so, the bank cannot evict the tenant of a borrower from a mortgaged property by virtue of any of the provisions of the said Act and if any action of the bank which is not protected under the said Act, is challenged by such a tenant in a suit, such challenge cannot be held to be barred under the provision of Section 17 of the said Act.

11. Accordingly, this Court holds that the suit, as framed by the plaintiff/opposite party is not barred under the provision of the said Act. The learned Trial Judge rightly held that the suit is maintainable and the plaint cannot be rejected.”

6. He also sought to draw support from the Madras High Court’s decision in the case of State Bank of India versus Gopal alias Gopalan and another reported in AIR 2009 Madras 50. The relevant portion of the said judgment is extracted hereinbelow.

“5…… The aforesaid provision of law is nothing to do with the prayer sought for in the suit since the respondent/plaintiff has not sought for an injunction against any proceedings under the Securitisation Act. The prayer of the first respondent/plaintiff is that he should not be evicted forcibly or illegally except under due process of law. He being the tenant of the premise