The central legal point established in the judgment is that a plaint cannot be rejected under Order 7 Rule 11 on the ground that it is barred under Sections 18 and 30 of the Recovery of Debts Due to Banks and Financial Institutions Act.

Mungeshwar Sahoo, J.

1. The plaintiff has filed this first appeal against the judgment and decree dated 10.5.2000 passed by Sri S.M. Nasimuddin, Sub-Judge-XV, Patna in Title Suit No. 106 of 2000 rejecting the plaint of the plaintiff-appellant under Order 7 Rule 11 of the Code of Civil Procedure.

2. It appears that Title Suit No. 119 of 1978 was filed by the defendant No.1 against the plaintiff and defendant No. 2 which was transferred to Debt Recovery Tribunal and it was registered as P.T. Case No. 241 of 1998. The said case was instituted by the Bank for recovery of loan advanced to defendant No. 2. The plaintiff executed equitable mortgage in favour of the bank. The said suit was decided by the Tribunal on 23.7.1999. A certificate was also issued which is pending before the defendant No. 3-respondent for execution of the same. The appeal filed by the plaintiff was dismissed. Therefore the plaintiff filed suit praying therein for declaration that the plaintiffs liability stands discharged because the property of defendant No. 2 has already been attached by the defendant No. 3.

3. The respondents filed an application under Order 7 Rule 1 Tread with Section 151 C.P.C. on 10.4.2000 and prayed for rejection of the plaint on the ground that suit is not maintainable because of bar under Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act and also the suit is barred by law of limitation.

4. After hearing the parties, by the impugned judgment and order the learned court below held that the suit is barred under Sections 18 and 30 of the Recovery of Debts Due to Banks and Financial Institutions Act and, therefore, the suit is not maintainable and rejected the plaint under Order 7 Rule 11.

5. The learned counsel appearing on behalf of the appellant submitted that the loan was advanced to respondent No. 2 and the appellant is the guarantor. The respondent No. 2 also filed Title Suit No. 49 of 2000. In that case also the point was raised by the Central Bank that the suit is not maintainable and application filed before this Court under Order 7 Rule 11 C.P.C. was rejected then the Bank filed another application under Order 41 Rule 2 C.P.C. for deciding the maintainability of the suit as preliminary issue which too was rejected by the trial court. Against the said rejection order the Central Bank filed Civil Revision before the Honble High Court. The decision of the Honble High Court is reported in AIR 2007 Patna 7 (Central Bank of India & Anr. V/s. M/s Laxman Wire Industries Ltd. & Ors.). All the questions involved in this present suit have been decided by the High Court and, therefore, this first appeal is covered by the said decision. The learned counsel further submitted that before Debt Recovery Tribunal, the defendant no. 2 raised a counter-claim but the same was not adjudicated upon by the Tribunal as it was powerless in the said matter. It was pleaded that they had entered into financial accommodation with the Bank on executing equitable mortgage by deposit of title deed. Due to devastating floods in August, 1975, the debtor incurred serious loss. The said claim was not adjudicated and, therefore, aforesaid suit was filed. The learned counsel further submitted that the Bank has already attached the property of the defendant no. 2 and, therefore, the present appellant filed the suit praying for declaration that the plaintiff stands discharged from its liability which is never barred under Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside.

6. On the other hand, the learned counsel appearing for the Bank submitted that even if it is held that the suit is not barred under Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, then also the plaint is liable to be rejected on the ground that the plaint does not disclose cause of action