A Civil Court's jurisdiction is not completely ousted by the SARFAESI Act, and that a debtor may file preemptive civil proceedings which cannot be transferred to the DRT.

Soumen Sen, J.

1. THE rejection of an application filed under Order 1 Rule 10(2) of the Code of Civil Procedure, is a subject-matter of challenge in this revisional application.

2. THE learned Court below, by an order dated 14th March, 2011, rejected the said application filed by the plaintiff on the ground that from the plaint it does not suggest that Uco Bank, Dum Dum Branch is a necessary party or a proper party. Accordingly, the learned Judge did not find any cogent ground to allow such prayer "at this stage".

3. THE plaintiff instituted a suit against the defendants praying, inter alia, for declaration and injunction. THE prayer for permanent injunction is limited to defendant Nos.7 and 8. It is alleged in the plaint that the defendant Nos. 2 to 6 by practising fraud upon the plaintiffs sold away Schedule B Property to the defendant No.7. It is further alleged that the Schedule B Property was mortgaged in favour of the defendant No.8 i.e., Honkong and Shanghai Banking Corporation. THE plaintiffs were surprised to find on 21st May, 2007, that some unknown persons visited the said property with a view to take possession thereof due to failure of the defendant No.7 to pay off the mortgage debts to the defendant No.8 in whose favour the defendant No.7 claimed to have created mortgage for availing certain credit facilities.

4. THE said suit was filed sometimes in November, 2007. In or about June 2010, the plaintiff filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure. THE plaintiff alleged in the said application that the defendant Nos. 1 to 6 by practising fraud managed to have registered a General Power of Attorney on 5th May, 2004 in their favour by presenting some fictitious persons instead of the plaintiffs (suggesting impersonation) and on the basis of such alleged power of attorney, the said defendant Nos. 1 to 6 sold away the flat in question in favour of the defendant No.7.

5. THE defendant No.7 appears to have taken some loan from the defendant No.8 by mortgaging the suit property, but failed to repay the loan amount. In view thereof, the plaintiffs were being harassed regularly by the men and agent of the defendant No.8 in respect of the suit property. THE plaintiff, finding no other alternative, instituted the suit.

6. SUBSEQUENTLY, in or about March, 2009, some unknown persons claiming to be employees of Uco Bank, Dum Dum Branch, pasted a notice under Section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance Act, 2002 (hereinafter referred to as SARFAESI Act, 2002) from which it was revealed that the defendant No.7 took a loan amounting to Rs.8,90,582/- after mortgaging the suit property and upon an enquiry being made, it was further revealed that the defendant No.2 to 6 executed and registered a Deed of Conveyance in favour of the defendant No.7 on the basis of a forged and fictitious Power of Attorney being No.2442 executed in or about 5th May, 2004 and registered at the Registrar of Assurance-II. In Paragraph 6 to the said application for addition of party, following averment is made:- "6. That the said Uco Bank, Dum Dum Branch and its men and agent has been regularly disturbing the peaceful possession of the plaintiff in respect of the suit property and the said bank is going to sell out the property according to Section 13(4) of the SARFAESI Act, 2002."

7. MR. Aniruddha Chatterjee, the learned Counsel appearing on behalf of the petitioner, submits that the learned Judge has completely misdirected its mind in deciding the said application under Order 1 Rule 10(2) of the Code of Civil Procedure. It was submitted that the application under Order 1 Rule 10(2) of the Code of Civil Procedure is for addition and/or striking of a party and the power to strike out as well as to add parties, may be exercised at any stage of the proceedings and even without any application by a party. He further submitted that the power of Court un