Mukta Gupta, J.

1. Copy of the impugned order dated 29th May, 2015 has not been filed. However, learned counsel for the appellant has handed over the same to the Court which is taken on record.

2. The grievance of the appellant to the impugned order dated 29th May, 2015 is that the learned Single Judge of this Court in CS (OS) No. 4095/2014 held that the suit was not maintainable. In the suit, the appellant challenged the measures taken by respondent No. 1 Axis Bank Ltd. (hereinafter called “the bank”) under Section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (for short ‘SARFAESI’) Act, 2002 (hereinafter referred to as the “Act”).

3. Learned Single Judge dismissed the suit on the objections of the respondents regarding the maintainability of the suit in view of the remedy available under Section 17 of the Act. By the impugned order the following observations were made:-

24. From the aforesaid, the following legal propositions emerge propos the maintainability of a suit on the ground of fraud:

a. The exception carved out by the Supreme Court in Mardia Chemicals (supra) is a very limited exception. Like all exceptions, it has to be construed strictly.

b. The averments in the plaint have to be considered as a whole. A mere allegation of fraud cannot lead to the maintainability of a suit. The Court is duty bound to see if the allegations of fraud are made only for the purpose of maintaining a suit.

c. Sufficiency of recourse under Section 17 of the Act would bar a suit.

28. This Court is of the view that if a standard classic defence, such as fraud by the Bank, is allowed to form the basis for maintaining a suit, then the provisions of the Act would become redundant, all the more so in the face of the express stipulation in Section 34 thereof. Moreover, if the test laid down in V. Thulasi (supra) and State Bank of India (supra) are applied to the present case, this Court would have no hesitation in holding that the present suit does not fall within the exception carved out by Mardia Chemicals (supra). Indeed, the Court cannot be oblivious to whether the allegations of fraud and misrepresentation are made only for the purpose of creating cause of action, thereby leading to the maintainability of the suit.

29. This Court is also of the view that in the present case, the plaint does not aver any complicated facts leading to the case of fraud or how the measures adopted by the Bank are fraudulent/absurd/untenable. There is nothing in the plaint which would lead to the conclusion that the plaintiffs’ case falls under the exception carved out by Mardia Chemicals (supra), i.e., the plaintiffs’ grievances ought to be determined in a suit. At this stage, it would be apposite to rely upon the judgment in Authorised Officer, Kotak Mahindra Bank v. Brahmo Construction Pvt. Ltd., CRA No. 34/2015, decided on 16.04.2015, wherein a learned Single Judge of the Bombay High Court held as under:

“14. In the instant case, as indicated above, the relevant averments in the plaint are in Paragraphs 6 11 and 12. The allegations in the said paragraphs have been made on the basis that the Defendant in the auction notice and in terms of the conditions of the auction has not disclosed or suppressed the factum of there being an attachment of the Income Tax Department on the secured asset. The plaint does not contain any complicated facts leading to the case of fraud or how the action of the Defendant Bank is fraudulent. There are therefore no complicated issues of fact which are to be tried. It would have to be borne in mind that the auction was on “as is where is basis” and “as is what is basis”. The intending participant in the said auction is therefore expected to make necessary inquiries if one can say so having regard to the general practice adopted at the time of auction. In fact in the instant matter the Plaintiff in Paragraph 6 of the plaint accepts the position that the attachment of the Incom