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In The High Court At Calcutta
Constitutional Civil Jurisdiction Appellate Side
Harish Tandon, J.
Chhanda Hazra - Appellant
Vs.
Mani Prasad Hazra & Anr. - Respondent
C.O. 1046 of 2015
Decided On : 19-02-2016
Section 17 of the SARFAESI Act provides the right to appeal for any person aggrieved by measures taken under Section 13(4) of the Act. Section 34 of the Act bars the jurisdiction of civil courts in matters determined by the Debt Recovery Tribunal. The court relied on these provisions to conclude that the civil court cannot grant an injunction to prevent action taken under the Act. The court also referred to relevant Supreme Court judgments to support its interpretation.
Fact of the Case:
The plaintiff filed a suit for declaration of joint ownership and exclusive rights in a property. The defendant, a bank, argued that the suit is barred under the SARFAESI Act and sought rejection of the plaint. The trial court allowed the application and rejected the plaint. The plaintiff challenged this order and also sought a temporary injunction, which was refused by the district court. The revisional application was filed against this refusal.
Finding of the Court:
The court examined the provisions of Section 17 and Section 34 of the SARFAESI Act. It noted that any person aggrieved by measures taken under Section 13(4) of the Act has a right to appeal to the Debt Recovery Tribunal. Section 34 of the Act bars the jurisdiction of civil courts to entertain suits or proceedings in matters determined by the Debt Recovery Tribunal. The court relied on the Supreme Court judgments in Standard Chartered Bank v. V. Noble Kumar and Jagdish Singh v. Heeralal to conclude that the jurisdiction of civil courts is excluded when measures are taken under Section 13(4) of the Act. It held that the civil court cannot grant an injunction to prevent such action by the secured creditor. The court also referred to Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd to clarify that the civil court cannot grant an injunction against the secured creditor taking possession of the secured asset.
Ratio Decidendi: The jurisdiction of the civil court is barred when measures are taken under Section 13(4) of the SARFAESI Act. The civil court cannot grant an injunction to prevent such action by the secured creditor.
Result: The court held that the district court did not err in refusing to pass an interim order of injunction. The revisional application was disposed of without any order as to costs.
Harish Tandon, J. :
1. This revisional application is directed against an order no. 1 dated March 18, 2015 passed by the learned District Judge, Alipore in Miscellaneous Appeal No. 93 of 2015 refusing to pass an ad interim order of injunction.
2. The plaintiff/petitioner filed Title Suit No. 18910 of 2013 before the learned Civil Judge (Junior Division), 6th Court, Alipore praying for declaration of his title as joint owner in respect of the suit premises with further declaration that she has exclusive right, title and interest in respect of a ground floor. It would be apt to quote the reliefs claimed in the plaint which run thus:
A) A decree for declaration that the plaintiff is the joint owner/co-sharer in respect of the suit land.
B) A decree for declaration that the plaintiff is the sole and absolute owner in respect of the ground floor of the suit property;
C) A decree for declaration that the suit property has been charged against the maintenance of the plaintiff which includes right to residence of the plaintiff in the suit property;
D) A decree for declaration that plaintiff has got right of residence in respect of the suit property;
E) A decree for permanent injunction restraining the defendants each of them and/or their men and agents, recovery agents and/or their transferees from selling, transferring, alienating, encumbering and/or from disturbing the peaceful possession and/or ousting the plaintiff from the suit property and/or from changing the nature and character of the suit property and/or from causing any physical violence upon the plaintiff in any manner whatsoever.
F) Costs; G) Any other relief or reliefs to which the plaintiff is entitled to get in law and in equity.”
3. It is stated in the plaint that the piece and parcel of land comprising in Municipality Holding No. P-23, Block- A, Sarada Park, Police Station- Maheshtala, Kolkata-700 141, was owned by the husband of the plaintiff/petitioner, the defendant no.1 in the suit, who was a government employee and constructed a building up to first floor. It is further averred that the said defendant no.1 did not have the sufficient funds to construct the ground floor and utilised the money which was her Stridhan for construction of the first floor. In Paragraph 9 of the plaint, it is stated that the plaintiff/petitioner was subjected to physical and mental tortures by the defendant no. 1 and several complaints were lodged before the authorities and a proceeding for maintenance and right of residence in the matrimonial home is also prayed for. It subsequently transpired that the said defendant no.1 took loan from the defendant no.2, the HDFC Bank Limited and failed to pay the loan amount with accrued interest which led the initiation of an action under SARFAESI Act. There is a clear averment in the plaint that the defendant no.2, the bank, is contemplating to take physical possession of the said property with an intend to dispossess the plaintiff/petitioner despite having exclusive right in the ground floor as well as an undivided share in the entire land.
4. An application for injunction was filed in the said suit restraining the defendants each of them from selling, transferring, alienating, encumbering and/or disturbing peaceful possession of the plaintiff/petitioner in respect of the suit premises. The defendant no.2 took a plea of demurer as the plaint is liable to be rejected under Order 7 Rule 11 of the Code being barred by law. It is alleged by the defendant no.2 that Section 34 of the SARFAESI Act, 2002 excludes the jurisdiction of the Civil Court to entertain any proceeding or to pass any order of injunction against any action taken or ought to be taken in pursuance of the power conferred by or under the said Act. The Trial Court allowed the said application as a consequence whereof the plaint was rejected. The plaintiff/petitioner challenged the said order before the District Judge, Alipore in Miscellaneous Appeal No. 93 of 2015 and filed an independ
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