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GAUHATI HIGH COURT
N. Chaudhury, J.
Bank of Baroda —Petitioner
versus
Sri Ranjan Chetia & Ors. —Respondents
CRP No.187 of 2013
Decided on 8.9.2014
(ii) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Section 13 (2) & (4), 14 & 34 — Civil Procedure Code, 1908 — Section 9 — Fraud vitiates all — Unless jurisdiction of Civil Court under S. 9 — For entertaining suit expressly or implied — By ousted objection with such plea cannot be held to be bar — Merely because secured creditor already proceeded with some or other action under S. 13 of SARFAESI Act. [Para — 13]
(iii) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Section 13 (2) & (4), 14 & 34 — Civil Procedure Code, 1908 — Section 9 — Jurisdiction of Civil Court — Litigant having grievance of civil nature has right to institute civil suit in competent Civil Court — Unless its cognizance either expressly or impliedly barred. [Para — 14]
(iv) Civil Procedure Code, 1908 — Order VI, Rule 4 — Whether disputed facts on fraud can be decided by DRT — Can DRT pass decree holding that there is fraud even if best of evidence adduced in support of specific pleadings of fraud under O. VI, R. 4 of CPC? — Can it pass anything more than issuing a recovery certificate? — HELD — DRT constituted for specific purpose — No independent issue can be initiated before it by debtor — It cannot pass decree — It can only pass recovery certificates. [Para — 16]
Result: Revision dismissed
N. Chaudhury, J.—In this application under Article 227 of the Constitution of India, the petitioner, Bank of Baroda, has questioned legality and correctness of order dated 24.08.2012 passed by the learned Civil Judge, Tinsukia, in Title Suit No. 24 of 2011. By that order the learned trial court rejected application filed by the respondents under Order VII Rule 11 of the Code of Civil Procedure.
2. The opposite parties No.1 & 2, as plaintiffs, instituted Title Suit No. 24 of 2011 praying for declaration, inter alia, that creation of guarantee document dated 28.01.2011 and equitable mortgage relating to loan account of M/s. ARK Group is a fraudulent act and that it is neither binding on the plaintiffs nor is the defendant No.1 entitled to enforce the same against the plaintiffs towards financial aid granted to M/s ARK Group. The case of the plaintiffs in brief is that in the year 2009 the plaintiffs along with defendant No.2 decided to establish a business of Restaurant-cum-Bar at Tinsukia. Pursuant to this, they purchased a plot of land measuring 1279.25 sq. ft. at A.T. Road, Tinsukia vide Registered Sale deed No. 1790 of 2009 at consideration of Rs.2,50,000/-. Then the defendant No.2 put forward a proposal to the plaintiffs that he would arrange funds by taking financial assistance from the defendant No.1, Bank of Baroda, as the defendants No.3 & 4 who are the officers of the said bank at Tinsukia Branch are in good relation with him. The plaintiffs agreed in good faith. In the month of January, 2010 the defendant No.2 informed the plaintiffs that a sum of Rs.28,00,000/-had been sanctioned in favour of them i.e. the plaintiffs and the defendant No.2 by Tinsukia Branch of the defendant No.1 and that they were required to create equitable mortgage of the premises purchased by them for executing a guarantee document. Accordingly, plaintiffs having accepted the proposal of defendant No.2 at face value and having placed implicit confidence in him, met at defendant No.4 who asked the plaintiffs and defendant No.2 to come to the Bank at night on 20.01.2010. The plaintiffs complied with the instructions and thereafter, on being asked by defendant No.4 they signed some papers which were presented before them by the defendant No.4. On being specifically asked, the defendant No.4 replied that plaintiffs and defendant No.2 have been sanctioned a sum of Rs.28,00,000/- which would be disbursed within a short period of time. But when even after lapse of substantial period of time, they did not receive any money, the plaintiffs made querries to defendant No.2 as well as defendant No.3 & 4 who did not furnish any information to the plaintiffs. At that stage, the plaintiffs and the defendant No.2 empowered the plaintiff No.1 to establish and run the business with his own money. Accordingly, the plaintiff No.1 established a Restaurant-cum-Bar and started business since March 2010 with his own finance. In the month of December, 2010 the plaintiff No.1 obtained “IMFL Bar ON” licence from the Government of Assam and the bar was commissioned. In the mean time, on 10.08.2010 they received a letter from defendant No.1 issued on 05.08.2010 and addressed to one M/s ARK Group which revealed that a loan limit of Rs.28,00,000/-was sanctioned by Tinsukia Branch of the defendant No.1 in favour of M/s. ARK Group. Smelling foul play of the defendant No.2, the plaintiffs made enquiry with the defendant No.2 about the existence and status of M/s. ARK Group and as to procurement and utilisation of loan amount of Rs.28,00,000/-. The defendant No.2 refused to disclose the details and rather became furious. He assaulted plaintiffs and hence, finding no other alternative, plaintiffs approached defendants No. 3 & 4, who also did not disclose any information. Situated thus, plaintiffs took recourse to the provision of Right to Information Act, whereupon the defendants No. 1, 2 & 3 parted with information disclosing that loan of Rs.28,00,000/-was sancti
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