IMPORTANT POINT
Civil courts can adjudicate suits involving fraud and complex factual disputes, despite the SARFAESI Act's jurisdictional limitations.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Order dated September 29th, 2016 passed by Civil Judge (Senior 2nd Division) Court Alipore, passed in T.S. No. 20521 of 2013, has been assailed in the present Application, wherein the court below has rejected defendant’s application under order VII rule 11 of the Code of Civil Procedure, seeking rejection of plaint.

2. Present opposite parties filed a suit for declaration for cancellation of deeds, permanent injunction, damages and other ancillary reliefs against the petitioners being aforesaid T.S. No. 20521 of 2013. In the said suit opposite party herein claimed that they are the absolute owners of the suit property, which is still under their possession. Previously on one occasion opposite party no. 1 and 2 had to go to Hyderabad for medical treatment and on good faith the opposite parties empowered defendant no.4, Mr. Baid to look after the suit property. It is alleged in the plaint that Mr. Baid misused the trust of the opposite parties and got one power of attorney executed fraudulently and taking advantage of the same he executed and registered a sale deed in favour of defendant no. 3 on January, 5 2010, setting up defendant no. 7 as an alleged creditor of opposite party no. 1 herein. On October 8, 2012 defendant no. 3 executed a deed in respect of the suit property in favour of defendant no. 1 and 2.

3. Main allegation levelled in the plaint is that the petitioners along with the proforma opposite parties herein in collusion with each other practiced fraud, which has affected the right title interest of the opposite parties with regard to suit property. They transacted most illegally with defendant no.8 and 9 with malafide intention, inspite of subsisting right, title, interest of the opposite parties in the suit property, with object to illegally earn money. Accordingly opposite parties filed aforesaid suit.

4. Petitioner herein contended that the petitioners have also filed a suit being T.S. No. 26632 of 2012 which is also pending. In the present plaint it has been stated that the cause of action arose when the opposite parties revoked the power of attorney and the defendant no.2 threatened the plaintiffs/opposite party no. 1 and 2 herein to vacate the suit property.

5. In the aforesaid T.S. No. 20521 of 2013 the petitioners herein filed an application under order VII rule 11 of the Code with a prayer for rejection of the plaint on the ground that the suit is barred under the provision of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after called as SARFAESI Act 2002). The opposite parties contested the said application by filling written objection controverting all the material allegations. However, learned court below after hearing both the parties rejected the said application.

6. Being aggrieved by the said order petitioners herein contended that the opposite party no.1 and 2 indulged in dilatory tactics to prevent the earlier suit being T.S. No.26632 of 2012 from reaching its logical conclusion by taking repeated adjournments. It is further submitted that the opposite party no. 1 and 2 are rank trespasser and are in illegal occupation of the suit property from 06.01.2010 without payment of occupation charges or other statutory charges. The petitioner no. 1 after purchasing the suit property on 08.10.2012, got the suit property muted in his favour and the opposite party no. 1 and 2 has not paid any Municipal taxes since 2009. Learned Court below while rejected the petitioners’ prayer for rejection of plaint, did not deem it proper and appropriate to consider the issues and contentions raised by the petitioners. It is settled law under section 34 of the SARFAESI Act, 2002 that the jurisdiction of the Civil Court is barred in respect of matters, which a Debt Recovery Tribunal is empowered to determine in respect of any action taken or to be taken in pursuance of any power conferred under the said Act. It is also to be men