Mukundakam Sharma, J.

( 1 ) THE present appeal is directed against the judgment and decree dated 27th September, 2004 passed by the learned additional District Judge, Delhi in Suit No. 121/2003 whereby the said suit was dismissed as barred under the provisions of Section 293 of the Income Tax Act.

( 2 ) THE aforesaid suit was filed by the appellant herein for recovery of an amount of Rs. 5,62,000/-, stated to be a part of the financial loss which the appellant has allegedly suffered as loss of interest on the maturity value of the nscs and UTI Units for period between 21st October, 1989 to 27th November, 1992.

( 3 ) THE appellant herein was the plaintiff who was also an assessee. A search and seizure operation was conducted at the residential and business premises of Shri Prem Kumar under the directions of the Director of Income tax, Hyderabad, Shri Prem Kumar also happened to be the "karta" of the appellant at the relevant time. During the aforesaid search UTI units and NSCs belonging to the HUF were seized on 12th June, 1989 by the Assistant Director of Income Tax, Bangalore. The appellant/plaintiff, however, after the search and seizure operation, lodged a protest and sought for release of all those assets which were seized by the Income Tax Department. As the same were not released, the plaintiff filed a writ petition in this Court which was registered as cwp 3050/1989 wherein challenge was made to the action of the Department in retaining the aforesaid UTI units and NSCs. The said writ petition was disposed on 26th October, 1989 holding that the plaintiff HUF should first avail of the alternative remedy i. e. , to file an appropriate application under Subsection (11) of Section 132 of the Income Tax Act. In terms of the aforesaid order, the appellant herein filed a written representation before the Income Tax authorities requesting for release of the aforesaid UTI units and NSCs, contending, inter alia, that the same cannot be retained by the Department. Even thereafter neither any order was passed on the written request of the plaintiff/appellant nor the said assets were released and, therefore, the appellant/ plaintiff again filed a writ petition in this Court which was registered as WP (C) 330/1992. However, before the said writ petition could be disposed of, the respondent Department released the said UTI units and NSCs in favour of the appellant on 27th November, 1992. Since the said assets were released, the writ petition was disposed of as it had become infructuous.

( 4 ) SUBSEQUENT thereto, a suit was filed by the appellant-plaintiff in this court seeking for the aforesaid reliefs. The said suit was contested by the respondents wherein, amongst other objections taken both on maintainability as also on merit, an objection was also raised regarding the maintainability of the suit under the provisions of Section 293 of the Income Tax Act. On the basis of the pleading of the parties in the suit, several issues were framed, including issue No. 3 which was to the following effect: "whether the suit is barred under the provisions of Section 293 of Income tax Act ?". As the aforesaid issue goes to the root of the suit, therefore, the Court observed that the said issue should be heard as a preliminary issue. Subsequent thereto ; the suit was transferred to the District Court in view of increase in the pecuniary jurisdiction of the District Court. The parties were heard on the aforesaid issue and by its judgment and decree the Trial Court held that the suit is not maintainable as the same is barred under the provisions of Section 293 of the Income Tax Act. It is further held that the Civil Court is not competent to proceed further to give findings on the other issues framed. The suit was accordingly dismissed but without any costs. The aforesaid judgment and decree is under challenge in this appeal, on which we have heard learned counsel for the parties. ( 5 ) IT is pointed out by the learned Counsel appearing for the appel

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