Point of Law: Under Section 17, it implies the phrase “any person aggrieved by any of the measures under Section 13(4)” which implies any and every action resorted to by the bank, it is authorised to take recourse to under and in pursuance of Sections 13(4), 14, 15, so on and so forth.

JUDGMENT :

SACHIN SHANKAR MAGADUM, J.

1. Though this matter is listed for admission, with consent of learned counsel on both sides, the appeal is taken up for final hearing.

2. The captioned Regular First Appeal is filed by unsuccessful plaintiffs questioning the order passed by the learned Judge on I.A. No. 2 filed under Order 7 Rule 11(d) of CPC read with Section 34 of SARFAESI Act wherein the learned Judge having accepted the objection filed by the respondent-bank has proceeded to reject the plaint by invoking provisions of Order 7 Rule 11(d) of CPC.

3. For the sake of brevity, the parties are referred to as per their rank before the Court below.

4. The facts leading to the case are as under:

The plaintiffs have instituted the present suit in O.S. No. 5207/2019 seeking relief of declaration to declare the sale notice dated 18.06.2019 and consequent e-auction sale dated 17.07.2019 as illegal, null and void. The plaintiffs have specifically pleaded that plaintiff No. 1 is the principal borrower and the plaintiff No. 2 is the surety for a sum of Rs. 20,00,000/- loan obtained from defendant bank. It is pleaded that due was to the tune of Rs. 33,51,891/-. The plaintiffs allege that defendant bank has imposed exorbitant interest thereby making it impossible for the plaintiffs to repay the loan and therefore would contend that the defendant bank has declared the account as non-performing asset. The plaintiffs have further pleaded that defendant bank has invoked Sections 13(2) and 13(4) of SARFAESI Act and claim that they have taken constructive possession of the mortgaged property.

5. The grievance of the plaintiffs in the present suit is that defendant bank has issued notice for sale under Rule 8(6) of Security Interest (Enforcement) Rules, 2002 which is dated 18.06.2019. The plaintiffs have further specifically pleaded that the said notice was served on plaintiff No. 1 on 24.06.2019 along with enclosure with public notice of sale dated 18.06.2019 thereby intimating that e-auction would be held on 17.07.2019. The plaintiffs have specifically pleaded in the present suit that the action of defendant bank clearly violates that mandatory requirements of Rule 8(6) of Security Interest Rules, 2002 which contemplates a prior notice of 30 days before proceeding with auctioning of the secured assets. On account of procedural illegality, plaintiffs claimed that there is substantial miscarriage of justice and therefore, the present suit is filed seeking relief of declaration to declare the sale notice and consequent e-auction sale as illegal, null and void.

6. The defendant bank, on receipt of summons, contested the proceedings and filed I.A. No. 2 under Order 7 Rule 11(d) read with Section 34 of SARFAESI Act by contending that the present suit is squarely hit by Section 34 of SARFAESI Act and the relief sought in the present suit cannot be entertained by the civil court as there is a express bar under the provisions of Section 34 of SARFAESI Act.

7. The learned Judge having examined the objections raised by the defendant bank in the application filed in I.A. No. 2 and also objections filed by the plaintiffs to I.A. No. 2 and having given its anxious consideration to the judgment cited by the plaintiffs and the defendant bank, has allowed the application filed in I.A. No. 2 and consequently plaint is rejected. It is against this rejection of plaint, the plaintiffs are before this Court.

8. Learned counsel appearing for plaintiffs would strenuously argue and contend before this Court that the order under challenge suffers from serious infirmities and therefore warrants interference at the hands of this Court. He would contend that the entire case of plaintiffs rest on the mandatory requirements under Rule 8(6) of Security Interest (Enforcement) Rules, 2002 (for short ‘the Rules 2002’) which mandates that 30 days clear notice is required to be given to the borrower before proceeding to auction the property and therefore he would contend that all disput