In this application under Article 227 of the Constitution of India, the petitioner, Bank of Baroda, has questioned legality and correctness of order dated 24.08.2012 passed by the learned Civil Judge, Tinsukia, in Title Suit No. 24 of 2011. By that order the learned trial court rejected application filed by the respondents under Order VII Rule 11 of the Code of Civil Procedure.

[2] The opposite parties No.1 & 2, as plaintiffs, instituted Title Suit No. 24 of 2011 praying for declaration, inter alia, that creation of guarantee document dated 28.01.2011 and equitable mortgage relating to loan account of M/s. ARK Group is a fraudulent act and that it is neither binding on the plaintiffs nor is the defendant No.1 entitled to enforce the same against the plaintiffs towards financial aid granted to M/s ARK Group. The case of the plaintiffs in brief is that in the year 2009 the plaintiffs along with defendant No.2 decided to establish a business of Restaurant-cum-Bar at Tinsukia. Pursuant to this, they purchased a plot of land measuring 1279.25 sq. ft. at A.T. Road, Tinsukia vide Registered Sale deed No. 1790 of 2009 at consideration of Rs.2,50,000/-. Then the defendant No.2 put forward a proposal to the plaintiffs that he would arrange funds by taking financial assistance from the defendant No.1, Bank of Baroda, as the defendants No.3 & 4 who are the officers of the said bank at Tinsukia Branch are in good relation with him. The plaintiffs agreed in good faith. In the month of January, 2010 the defendant No.2 informed the plaintiffs that a sum of Rs.28,00,000/-had been sanctioned in favour of them i.e. the plaintiffs and the defendant No.2 by Tinsukia Branch of the defendant No.1 and that they were required to create equitable mortgage of the premises purchased by them for executing a guarantee document. Accordingly, plaintiffs having accepted the proposal of defendant No.2 at face value and having placed implicit confidence in him, met at defendant No.4 who asked the plaintiffs and defendant No.2 to come to the Bank at night on 20.01.2010. The plaintiffs complied with the instructions and thereafter, on being asked by defendant No.4 they signed some papers which were presented before them by the defendant No.4. On being specifically asked, the defendant No.4 replied that plaintiffs and defendant No.2 have been sanctioned a sum of Rs.28,00,000/- which would be disbursed within a short period of time. But when even after lapse of substantial period of time, they did not receive any money, the plaintiffs made querries to defendant No.2 as well as defendant No.3 & 4 who did not furnish any information to the plaintiffs. At that stage, the plaintiffs and the defendant No.2 empowered the plaintiff No.1 to establish and run the business with his own money. Accordingly, the plaintiff No.1

[3] Upon receipt of the summons, the defendant No.1 submitted written statement denying the allegation of fraud and also filed an application under Order VII Rule 11 of the Code of Civil Procedure. The substance of the objection raised by defendant No.1 is that the plaintiffs did not file the suit immediately after the so called fraud was noticed. Plaintiffs have filed the suit only after notice under Section 13 of the SARFAESI Act, 2002, was issued by the bank and so the suit is barred under Section 34 of the same Act.

[4] Learned Court heard both sides at length and thereupon, passed order on 24.08.2012 rejecting the application. The learned Court held that since the plaintiffs have come forward with a specific case of fraud of the defendants and has sought declaratory relief on the basis of specific averments made in the body of the plaint, the jurisdiction of the Civil Court is not ousted under Section 34 of the SARFAESI Act, 2002. In so doing the learned Court placed reliance of the case of Mardia Chemicals Limited vs. Union of India reported in (2004) 4 SCC 311. This order rejecting the application under Order VII Rule 11 of the Code of