( 1 ) THIS application under Art. 227 of the Constitution of India is directed against an order being No. 19 dated 19th september, 2006 passed by the learned Civil judge (Senior Division), 1st Court at Sealdah in Title Suit No. 205 of 2004 by which the application of the defendant No. 3/petitioner for rejection of the plaint under O. 7, R. 11 of the Code of Civil Procedure was rejected by the learned Trial Judge.

( 2 ) THE plaintiff/opposite party No. 1 filed a suit for declaration of his tenancy right under the defendant/opposite party No. 2 herein. A further declaration was also sought for against the said defendant for declaring that he cannot be evicted without due process of law. So far as the petitioner, as well as the opposite party No. 3 herein are concerned, the following relief was claimed by the plaintiff in the plaint :

"the respondent No. 2 or 3 or their agents and officers be restrained from forcibly evicting the plaintiff from the scheduled flat. "

( 3 ) THE said reliefs were claimed by the plaintiff on the basis of the following averments made out by the plaintiffs in the plaint of the said case.

1. The plaintiff took tenancy of the disputed flat from the defendant No. 1 in the month of July, 2003 at a monthly rental of rs. 2500/- to be paid within 10th of the month. The plaintiff occupied the said premises in the month of July, 2003 and has been living their with his family.

2. The plaintiff never defaulted in payment of rent to his landlord.

3. The defendants No. 2 and 3 called the plaintiff along with his landlord, namely, the defendant No. 1 at his residence and asked him to vacate the flat. A notice was pasted on the wall of the said building. The defendants No. 2 and 3, after pasting the said notice on the wall of the said building left. The defendant No. 1 assured the plaintiff that it was a mere formality and he need not be worried. The rent for the month of August, 2004 was also received by the defendant No. 1 from the plaintiff.

( 4 ) ON 9th September, 2004 the defendant no. 1 suddenly served the plaintiff a notice dated 1st September, 2004 stating inter alia that the defendant No. 2 has taken possession of the entire premises, being holding no. 20/7, Northern Avenue, P. S. Chitpur, kolkata - 700 037 and asked the plaintiff to vacate the ground floor and occupied by the plaintiff immediately. The defendant No. 1 thereafter refused to accept the rent for the month of September, 2004.

( 5 ) THE plaintiff is totally in the dark about the transaction between the defendant No. 1 and the defendants No. 2 and 3.

4. Under such circumstances, apprehending that the plaintiff may be evicted from his tenancy forcibly, the plaintiff filed the said suit claiming the aforesaid reliefs.

5. In such a suit, the defendants No. 2 and 3 filed an application for rejection of the plaint under O. 7, R. 11 (d) of the Code of Civil Procedure on the ground that the suit is barred under Section 13, Section 17 and Section 34 of the Securitisation and reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

( 6 ) SUCH an application of the defendants no. 2 and 3 was rejected by the learned Trial judge by holding, inter alia, that neither the suit as framed by the plaintiff/opposite party nor the reliefs, claimed by him in the said suit, is barred under any of the provisions under Sections 13, 17 and 34 of the said act.

( 7 ) MR. Roy, learned Advocate, appearing for the petitioner submits that Section 13 of the said Act has given his client the right of enforcement of security interest by way of taking possession of the secured asset of the borrower, including the right to transfer by way of lease, assignment or sale for realising the secured asset. Mr. Roy, further, submits that, if any person, including the borrower, is aggrieved against the step and/or measure which is taken and/or adopted by the bank in the process of enforcement of security interest by the bank, any person who is aggrieved by any

Click Here to Read the rest of this document