IMPORTANT POINT
Jurisdiction of the Civil Court is barred in respect of any action taken or to be taken in pursuance of any powers under the Securitisation Act. Merely because no action was yet taken under Section 13(4), the Civil Court could not have the jurisdiction.

J.H. Bhatia, J.—Heard the learned counsel for the parties.

2. To state in brief, the respondent No.1 before this Court is the original plaintiff and the applicant is the original defendant No.1. Respondent Nos. 2 and 3 are the original defendant Nos. 2 and 3. Admitted facts are that the respondent Nos. 1 and 3 are real brothers. They are also partners in the firm, M/s. Sudin Motors, which is the respondent No.2. Both the partners approached the applicant Bank for cash credit facility and as the applicant is a co-operative Bank, all the three respondents become members of Class-A and the Bank agreed to provide cash credit facility to the limit of Rs. 10,00,000. Respondent No.3 was authorized to operate the bank account. On the basis of the authorization and as per instructions from the respondent No. 3, certain amounts from the cash credit loan account of the respondent No. 2 firm were transferred to the personal loan account of the respondent No. 3. On 1.3.2004 the applicant issued a notice to all the respondents under Section 13(2) under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (on brief ‘Securitization Act’) for recovery of Rs. 8,10,713. Initially, the respondent No.1 filed a dispute before the Co-operative Court seeking injunction against the bank for recovery of the amount. However, thereafter the respondent No.1 filed Regular Civil Suit No.353 of 2004 seeking a declaration that the said notice issued under Section 13 of the Securitization Act was illegal, unauthorized, without jurisdiction, null and void and he also sought perpetual injunction restraining the applicant from implementing the said notice. He also sought temporary injunction of the same nature.

3. After service of the suit summons, applicant Bank challenged the jurisdiction of the Court on the ground that under Section 34 of the Securitization Act, jurisdiction of the Civil Court is bar and the suit is not tenable. In view of this, the respondent No.1 himself made an application under Section 9A of the Civil Procedure Code before the Trial Court for raising preliminary issue about the jurisdiction and tenability of the suit and accordingly, following preliminary issue came to be framed:

“Whether this Court has jurisdiction to entertain, try and decide the suit in view of the contentions regarding Sections 91 and 164 of the M.C.S. Act and Securitization Act.”

About the preliminary issue, oral and documentary evidence was led by respondent No.1 alone. After hearing the parties, the learned Trial Court observed that the suit was filed seeking declaration that the notice under Section 13 of the Securitization Act was illegal and void and, therefore, the suit is not barred under Section 91 of the Maharashtra Co- operative Societies Act. The learned Trial Court after referring to the provisions of Sections 3 (2), (4), (17) and 34 came to conclusion that the respondent No.1 could challenge the action of the Bank by filing an appeal under Section 17 before the Debts Recovery Tribunal only if the action was actually taken under Section 13 (4) (a) to (d) and as no such action is yet taken and only notice was issued, the appeal could not be preferred and, therefore, the Civil Court has jurisdiction to entertain the suit. This order has been challenged in the present Revision Application by the defendant No.1 Bank.

4. Mr. Kumbhakoni the learned counsel for the application has taken me through the contents of the application as well as relevant documents and oral evidence. He also relied upon Mardia Chemicals Ltd. and others v. Union of India and others, (2004) (4) S.C.C. 311, in support of his contention that the jurisdiction of the Civil Court is barred to interaction a suit even in respect of action, which may be taken by the creditor under the Securitization Act. On the other hand, Mr. Dani the learned counsel for the respondent No.1 contended that in paragraph 51 of the judgment in Mardia Chemic