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2017 Supreme(Bom) 226
IN THE HIGH COURT OF BOMBAY AT GOA
C.V. BHADANG, J.
State Bank of India - Applicant
Vs.
Mr. Aurelio Jose Da Costa, Son of Ernesto Chagas da Costa & Ors. - Respondents
CIVIL REVISION APPLICATION NO. 13 of 2013
Decided On : 20-02-2017
For the Applicant :Mr. S.N. Joshi and Mr. Navdeep Aguiar, Advocates.
For the Respondents:Mr. P.S. Lotlikar, Advocate, Mr. Amir Jamdar, Additional Government Advocate.
Important Point: While considering the question of rejection of plaint under Order VII, Rule 11(d) of CPC, the Court has to look to the allegations in the plaint as a whole and then to decide whether the plaint can be said to be barred by any law.
Headnote:The Code of Civil Procedure,1908---Section 115---Order VII Rule 11--- SARFAESI Act---Section 34---While considering the question of rejection of plaint under Order VII, Rule 11(d) of CPC, the Court has to look to the allegations in the plaint as a whole and then to decide whether the plaint can be said to be barred by any law--- While reading the plaint as a whole, the Court has to see whether, by a clever drafting, an illusion of cause of action is created--- To find out whether it is just a case of clever drafting, creating an illusion of cause of action, the Court has to read the plaint not formally but in a meaningful manner---The bar of jurisdiction of the Civil Court is two fold----Firstly, the Civil Court shall not entertain any suit or proceedings in respect of any matter, which a DRT or Appellate Tribunal is empowered by or under the Act to entertain---Secondly, no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any order passed--- It has not been shown as to under what law the marriage was performed beyond the Portuguese territory, namely at Baroda, Gujarat and whether or not, such a marriage required registration--- It is only in a limited sphere that the Civil Court can entertain a suit of the present nature i.e. where a genuine and triable case of fraud is made out, which in the present case, has not been made out by the plaintiff.
Result: Application Allowed
This Revision Application under Section 115 of the Code of Civil Procedure (CPC, for short), challenges the order dated 08/01/2013, passed by the learned Trial Court in Civil Suit No.4/2012. By the impugned order, the application under Order VII, Rule 11 of the Code of Civil Procedure (CPC, for short), filed by the petitioner, has been dismissed.
2. The brief facts, necessary for the disposal of the petition, may be stated thus :
That the first respondent filed Regular Civil Suit No.4/2012 against the petitioner and others, for seeking a declaration that the Deed of Mortgage dated 29/09/2008, executed by the original defendant nos.3 to 7 in favour of the petitioner herein, is null and void and not binding on him. The respondent no.1 also sought permanent injunction, restraining the petitioner from attaching or taking over possession of the suit property.
3. For the sake of convenience, the parties are referred to in their original capacity as the plaintiff and defendants.
4. The defendant no.6 Mrs. Maria Odry Monteiro is the wife of the plaintiff Mr. Aurelio Jose da Costa. Original defendant no.2 Mahadev Naik had obtained a financial assistance from the petitioner (defendant no.1), for which defendant nos.3 to 7 had furnished security by executing the aforesaid Mortgage Deed in respect of the suit property.
5. The material case made out in the plaint is that the plaintiff was married to the defendant no.6, which marriage was solemnised in the Rosari Cathedral, Baroda on 03/07/2005. Subsequently, their marriage was registered in the office of Civil Registrar at Salcete in the year 2011. It is claimed that the plaintiff and defendant no.6 are both of Goan origin and there was no ante-nuptial agreement entered into by the parties, as a result of which, the marriage would be governed by the regime of Communion of Assets. In short, it was claimed that the marriage of the plaintiff and defendant no.6, having been solemnised in the year 2005, the consequent Mortgage Deed executed in the year 2008, without the plaintiff being a party thereto, would be null and void and not binding on the plaintiff. It was further claimed that defendant no.3, who is the brother of defendant no.6 fraudulently represented the status of defendant no.6 as a spinster, at the time of execution of the Mortgage Deed, although defendant no.3 was knowing that she was married to the plaintiff. The relevant pleadings can be found in paras 17 and 18 of the plaint.
6. The petitioner (defendant no.1) filed an application under Order VII, Rule 11 of CPC, claiming that the suit is barred by the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act, for short). It was contended that the suit is filed to restrain the Court of competent jurisdiction from executing the orders passed under the SARFAESI Act, which is not permissible.
7. The application was opposed by the plaintiff.
8. The learned Trial Court, by the impugned order, has dismissed the application, inter alia, on the ground that the validity of the Mortgage Deed can only be decided by a Civil Court and thus, in the opinion of the learned Trial Court, the suit was not barred under the provisions of SARFAESI Act. It is this order, which is subject matter of challenge in this petition.
9. I have heard Shri Joshi, the learned Counsel for the petitioner and Shri Lotlikar, the learned Counsel for the contesting respondent no.1. With the assistance of the learned Counsel for the parties, I have gone through the record and the impugned order passed.
10. It is submitted by Shri Joshi, the learned Counsel for the petitioner that under Section 34 of the SARFAESI Act, the jurisdiction of the Civil Court to entertain any suit or proceedings, in respect of any matter, which a Debts Recovery Tribunal (DRT, for short) or the Appellate Tribunal is empowered by or under the said Act to determine, is barred. It is submitted that once there was a mortga
