The main legal point established in the judgment is that a civil court's jurisdiction is barred in respect of matters which can be taken cognizance of by the DRT under the SARFAESI Act, and that a borrower cannot simultaneously pursue a civil suit and the remedy under Section 17 of the SARFAESI Act.

JUDGMENT :

Amit Bansal, J.

I.A. 1560/2022 (u/O.XXXIX R. 1 & 2 of CPC)

1. By the present order, I propose to dispose of the application filed on behalf of the plaintiff under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 (CPC), seeking grant of interim injunction.

2. Summons in the suit and notice in the present application was issued on 28th January, 2022 and a note was made of the submission on behalf of the plaintiff, that the plaintiff has also filed an application under section 17 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI act), before the Debt Recovery Tribunal (DRT), which was coming up for hearing on the same date at 2.00 P.M.

3. In the order dated 2nd February, 2022, it was noted that the DRT vide order dated 28th January, 2022, has restrained the defendant No. 5 Bank from taking possession of the plaintiff’s property and posted the matter for 9th February, 2022. On 11th February, 2022, it was noted that the plaintiff shall make a deposit of Rs.20,00,000/- before this Court and the defendant No. 5 Bank was restrained from taking possession of the plaintiff’s property. Later the written statement along with the reply to the present application, was filed on behalf of the defendant No. 5 Bank.

4. Office noting reveals that the summons sent to the defendants No. 1 and 4 are unserved and the service report in respect of the defendant No. 3 is awaited. Vakalatnama has been filed on behalf of the defendant No. 2, but he has only been represented on 2nd February, 2022 and not on any subsequent hearing.

5. The case set up by the plaintiff in the plaint is that:

i. The Plaintiff is the owner in possession of the property bearing No. E-016, Purvasha Anand Lok, Cooperative Housing Society, Mayur Vihar, Delhi-11009 (suit property).

ii. The plaintiff is a senior citizen and lives alone and has been involved in a catering business for past many years.

iii. The defendant No. 1 is a company incorporated under provisions of the Companies Act, 2013, represented by the defendants No. 2 and 3 as its directors. The Plaintiff is neither a director, nor a shareholder in the defendant No. 1 company.

iv. The Plaintiff is a director in the defendant No. 4 company, along with the defendants No. 2 and 3.

v. The defendant No. 2 is a neighbour of the plaintiff and has known the plaintiff for last several years. In the year 2005, the defendant No. 2 allured the plaintiff to acquire the defendant No. 4 company.

vi. In the year 2012-13, a loan of Rs.80,000,00/- was taken for the defendant No. 4 company from the Standard Chartered Bank, for which the suit property, being residence of the plaintiff, was given as a security.

vii. In April 2017, the defendant No. 2 once again approached the plaintiff with a proposal to avail fresh financial assistance from the defendant No. 5 Bank, in respect of the defendant No. 4 company.

viii. The plaintiff agreed to the above request and was made to sign a blank loan application form of the defendant No. 5 Bank, which was then known as Capital First Limited.

ix. The defendants No. 2 and 3 informed the plaintiff that they require a loan in respect of the defendant No. 1 company that was run by them. However, the plaintiff did not agree for the same.

x. Plaintiff was in Mashobra from 9th May, 2017 to 14th May,2017 in connection with her Son’s wedding. Phone records have been filed on behalf of the plaintiff, to show that she was not in Delhi from 9th May, 2017 to 14th May, 2017.

xi. In November, 2018, the plaintiff was informed by the defendants No. 2 and 3 that they had taken a loan of Rs.61,50,000/- from the defendant No. 5 Bank, in the name of the defendant No. 1 company against the plaintiff’s residential house.

xii. The plaintiff was further informed that the defendant No. 5 Bank took over the balance loan amount from the Standard Chartered Bank and accordingly, the title documents of the suit property were directly transferred from the Standard Cha