JUDGMENT

Debangsu Basak, J. - The defendant has applied for dismissal of the suit on the ground of bar under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002 and Section 18 of the Recovery of Debts and Bankruptcy Act, 1993.

2. Learned Advocate appearing for the defendant has submitted that, the defendant sanctioned credit facilities to M/s. Padma Steel Industries, a partnership firm of Mr. Binay Pandey who is one of the promoters of the plaintiff. The plaintiff took over the business of M/s. Padma Steel Industries along with credit facilities that M/s. Padma Steel Industries enjoyed from the defendant. There being defaults in payment of the credit facilities by the plaintiff, the defendant issued a notice under Section 13 (2) of the Act of 2002 on August 27, 2018. The plaintiff filed the present suit on August 20, 2018 and presented the plaint on September 5, 2018. The suit is therefore to be considered to be instituted as on September 5, 2018. The defendant having invoked the provisions of the Act of 2002 by the issuance of the notice under Section 13(2) of the Act of 2002, prior to the institution of the suit, the instant suit therefore is barred under Section 34 of the Act of 2002. Moreover, the defendant filed a proceeding under Section 19 of the Act of 1993. Consequently, by virtue of the provisions of Section 18 of the Act of 1993, the instant suit is also barred.

3. Learned Advocate appearing for the defendant has submitted that, Section 9 of the Code of Civil Procedure, 1908 recognises that, the jurisdiction of the Civil Court is ousted if there is an express or implied bar imposed by a statute in filing a suit. In the present case, there is a bar under Section 34 of the Act of 2002 and a bar under Section 18 of the Act of 1993 in the Civil Court deciding the suit.

4. In support of the contention that the instant suit is barred by law, learned Advocate for the defendant has relied upon ( Jagdish Singh v. Heeralal & Ors., 2014 1 SCC 479 ), ( M/s. Sree Anandhakumar Mills Ltd. v. M/s. Indian Overseas Bank & Ors., 2018 AIR(SC) 2472 ), ( Chhanda Hazra v. Mani Prasad Hazra & Anr., 2016 2 CalLJ 457 ), ( Mardia Chemicals Ltd. v. Union of India & Ors., 2004 AIR(SC) 2371 ), ( Harshad Govardhan Sondagar v. International Assets Reconstruction Company Ltd. & Ors., 2014 6 SCC 1 ).

5. Learned Advocate appearing for the plaintiff has submitted that, each and every suit filed by a borrower against a bank or a financial institution is not barred under the provisions of the Act of 2002 or the Act of 1993. He has relied upon ( Kaaiser Oils Pvt. Ltd. v. Allahabad Bank, 2017 4 CalHN 410 ), ( Housing Development Finance Corporation Limited (HDFC Ltd.) & Anr. v. Dorjee Dolma Bhutia & Ors., 2015 4 CalLT 108 ), 2011 Volume 3 Calcutta High Court Notes (Cal) page19 in support of such contentions. Relying upon ( Bank of Rajasthan Ltd. v. VCK Shares and Stock Broking Services Ltd., 2015 13 SCC 635 ) learned Advocate for the plaintiff has submitted that, the Supreme Court noticing divergent views on the issue as to whether Section 18 of the Act of 1993 bars the jurisdiction of the Civil Court absolutely made a reference with regard thereto to a larger bench. The issue is yet to be finally decided by the larger bench.

6. The issues that have fallen for consideration in the present application are as follows:-

(i) Is a suit for damages against a secured creditor barred under Section 34 of the Act of 2002?

(ii) Is the present suit barred under Section 18 of the Act of 1993?

(iii) To what relief or reliefs are the parties entitled to?

7. The plaintiff has filed the instant suit claiming a decree for damages for a sum of Rs. 9.39 crores in terms of the particulars at paragraph 35 of the plaint. The prayers in the plaint are as follows:-

"a) Decree for Rs. 9.39 crore against the defendant as particularized in paragraph 35 hereinabove;

b) Decree for interest on the aforesaid