A mere allegation of fraud is insufficient to override jurisdiction under Section 34 of the Act; specific particulars must be presented to establish fraud.

JUDGMENT :

Devashis Baruah, J.

Heard Mr. P. C. Goswami, the learned counsel appearing on behalf of the petitioner and Mr. B. D. Deka, the learned counsel who appears on behalf of the respondent.

2. The jurisdiction under Section 115 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has been invoked to challenge the rejection of the application filed under Order VII Rule 11(d) of the Code for rejection of the plaint by the Court of the learned Civil Judge (Senior Division) No.3, Kamrup (M) at Guwahati (hereinafter referred to as ‘the learned Trial Court’).

3. Mr. P. C. Goswami, the learned counsel appearing on behalf of the petitioner submitted that by virtue of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the Act of 2002’), the Civil Court has no jurisdiction in matters specified under Section 17 of the Act of 2002 and as such the suit was barred for which the suit ought to have rejected by the learned Trial Court which the learned Trial Court failed to do so while exercising its jurisdiction for which the instant proceedings have been filed.

4. Taking into account the order dated 15.11.2021 which is impugned in the instant proceedings being an order passed in a proceedings initiated under Order VII Rule 11(d) of the Code, the Court is therefore required to only look into the contents of the plaint to ascertain whether the suit appears from the statement in the plaint to be barred by any law.

5. The case of the respondent herein who instituted a suit being Title Suit No.240/2016 is that he is the owner of two plots of land. The first plot of land is specifically described in Schedule- A to the plaint and the second plot of land is described in Schedule-B to the plaint. It is the further case of the plaintiff that the Schedule-A land admeasures 2 kathas 10 lechas which is covered by Dag No.221/222(old)/146(New) of KP Patta No.118. The other plot of land admeasuring 1 katha is also covered by the same Dag and Patta Number. It is however relevant to take note of that from a perusal of the plaint, it is seen that there is a three storey building in Schedule-B land and a holding No.2880.

6. It is the further case of the plaintiff that the Schedule-A land was initially mortgaged to the Central Bank of India for availing a home loan of Rs.7,50,000/-. Subsequently as the plaintiff required further money and the defendant No.1 was agreeable to provide further loan, the mortgage over the Schedule-A land was transferred by the Central Bank to the UCO Bank and in that process, the plaintiff took a loan of Rs.22,00,000/-.

7. It is the further case of the plaintiff that in the last week of February, 2016, some unknown persons started to come to the residence of the plaintiff which is in Schedule-B land. The plaintiff made enquiries and was surprised to learn that the said Schedule-B land and the house standing thereon was proposed to be auctioned by the defendant Nos.1, 2 & 3. Under such circumstances, the plaintiff enquired with the defendant Bank as regards such rumor of auctioning of the property belonging to the plaintiff and the plaintiff was shocked and surprised to come to learn that the defendant No.1 had sanctioned a loan in favour of the defendant No.4 of an amount of Rs.23 crores and odd wherein the plaintiff was shown as a guarantor creating equitable mortgage of the Schedule-A- land. The plaintiff was also surprised to learn that in the creation of the said equitable mortgage, not only the Schedule-A land has been shown, but the three storey building had been