IMPORTANT POINT
Challenges to measures under the SARFAESI Act must be brought before the DRT under Section 17, and the Civil Court's jurisdiction is ousted in such matters.

JUDGMENT :

The appellant is aggrieved by the judgment in the writ petition rejecting his challenge against the order passed by the Debt Recovery Tribunal, Patna (for brevity DRT) and relegating him to the Civil Court of competent jurisdiction.

2. The controversy arose insofar as the respondent-Bank proceeding against a property comprised within 1 Katha appertaining to Khata No. 570, Khesra No. 172, Tauji No. 184, Thana No. 12 bounded by Mahavir Gope on north, east Kapildeo Yadav, west boundary Daud Bigha and south part of Plot No. 172. One Satish Kumar is said to have purchased an area of 6.38 decimals bounded by Thana NO. 12, Plot No. 570, part of Khata No. 169/172/158, Tauji No. 814, bounded by north, Mahavir Gope, south Devi Gope, east Sheikh Nasrul Haq, west Daud Bigha through a registered sale deed dated 03.05.1987. While the earlier land referred to was purchased by the petitioners by a registered sale deed dated 30.10.1985, Satish Kumar had created equitable mortgage of the property purchased by him and availed a loan from the respondent-bank; which became NPA and proceedings were taken by the Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (for brevity SARFAESI Act). The Bank put the property in auction which was purchased by the 4th respondent. The 4th respondent having not been given physical possession of the property filed C.W.J.C. No. 19421/2012. This Court directed the district authorities to identify the property and eventually, after identification, the property was handed over to the purchaser, by the Bank.

3. The contention of the petitioner is that the part of the properties belongs to them and they approached the DRT with SA No. 101 of 2014 being an application under Section 17 of the SARFAESI Act. The DRT rejected the appeal by Annexure-9 produced in the writ petition. The DRT by Annexure-9 order found that since the delivery of possession as well as registration of sale deed was completed in pursuance of the order issued by the High Court of Patna, there cannot be found any illegality in the possession taken of the property and the S.A. was dismissed.

4. The learned Single Judge, who heard the writ petition, dismissed the same on the ground that the appropriate remedy would be before the Civil Court of competent jurisdiction, since the DRT could not have looked into the right title and interest over the property which was the subject matter of dispute in the appeal before the DRT. The learned Single Judge relied on Nahar Industrial Enterprises Ltd. V. Hong Kong & Shanghai Banking Corporation, 2009(8) SCC 646 to uphold the order of the DRT and relegate the appellant to the Civil Court.

5. Shri Sanjeev Ranjan, learned counsel for the appellant, argued that the DRT and the learned Single Judge fell into a gross error in rejecting the claim. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of M/s Sree Anandhakumar Mills Ltd. Vs. M/S Indian Overseas Bank & Ors., Civil Appeal No(s). 7214-7216 of 2012, decided on 03.05.2018. It was argued that under Section 17 any person aggrieved with the action of the Bank can approach the DRT with an Appeal and he need not be a debtor, borrower, creditor or guarantor of the Bank. It is pointed out that in the cited decision even when a partition suit was filed with respect to a property on which the security interest was created, the Hon’ble Supreme Court relegated the party to the DRT under Section 17 and the suit was closed. The learned counsel would seek the setting aside of the order passed by the DRT and restoration of the appeal before the DRT.

6. Mr. Ajay Kumar Sinha, learned senior counsel for the Bank, however, stoutly opposed the prayers. It was argued that the question raised by the petitioner rests on the right, interest and title of the property and, in such circumstances, the ouster of power of Civil Courts under Section 34 does not apply. The DRT, who is competent to look i