(i) Whether, in a case wherein proceedings under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(hereinafter referred to as the 'SARFAESI Act') are initiated by a secured creditor against any property, which is not a secured asset, the only remedy available to such a person is to have recourse to Section 17 of the said Act?

(ii) In such a case, whether the jurisdiction of the civil court to grant an injunction is barred under Section 34 of the SARFAESI Act?

2. The plaintiff in O.S.No.116/2011 of the Munsiff's Court, Thalassery, has sought for a decree of perpetual injunction against the defendants or any person claiming through or under the defendants, from trying to take possession or taking possession of A schedule property or the buildings thereon, etc. Along with the suit, IA No.890 of 2011 seeking an order of temporary injunction under Order XXXIX Rule 1 of the Code of Civil Procedure, was also filed. The learned Munsiff allowed the said IA through Ext.P9 order, and restrained the respondents therein from taking possession of A schedule property and the buildings thereon for the alleged dues payable by the petitioner therein to the respondents therein by way of recovery of the loan.

3. The petitioners herein have taken up the matter in appeal through CMA No.51 of 2011, before the Subordinate Judge's Court, Thalassery. The learned Subordinate Judge has also concurred with the findings entered by the learned Munsiff, through Ext.P10 judgment. The said judgment is under challenge.

4. It seems that a notice was issued at the instance of the petitioners to the respondent herein, purportedly one under Section 13(2) of the SARFAESI Act. It is the case of the respondent that the respondent had obtained financial nursing from the erstwhile Lord Krishna Bank. It seems that the said Bank subsequently amalgamated with the Centurian Bank of Punjab Ltd., which later amalgamated with the HDFC Bank. Consequently, the assets and liabilities of the Lord Krishna Bank as well as of the Centurian Bank of Punjab Ltd. were taken over by the HDFC Bank.

5. Assuming the status of a 'secured creditor', the HDFC Bank has attempted to proceed against the properties of the respondent by styling it as 'secured assets'. Even though the respondent had obtained financial nursing for the construction of buildings for establishing a Medical College and a Dental College in the plaint B schedule property, according to the respondent, those buildings were put up in plaint A schedule property with the consent of the Bank. According to the respondent, there was reasonable apprehension in the mind of the respondent that under the colour of actions under the SARFAESI Act, the Bank was about to take possession of the plaint A schedule property, which was not one included in the 'secured asset'. In order to protect plaint A schedule property from such proceedings, the above suit has been filed.

6. Plaint A schedule property is described as 25 acres of property out of a total extent of 90 acres and 31 cents, in old Sy.Nos.17, 21, 41 and 42 and Re.Sy.No.2/1 of Anjarakkandy Amsom. It is also described that plaint A schedule property includes the Medical College, the Dental College, Para-medical College institutions, and all other buildings thereon. The plaint B schedule property is described as 5 acres of property in old Sy.Nos.37 and 39/6-8 and Re.Sy.No.28 of Anjarakkandy Amsom.

7. Admittedly, plaint B schedule is a 'secured asset' as it was the subject matter of mortgage by deposit of title deeds for availing the loan. According to the respondents, plaint A schedule property having an extent of 25 acres with all the buildings and institutions thereon were not subject matter of any mortgage in respect of the loan transaction and therefore, it cannot be treated as a 'secured asset'. It was on the apprehension that the Bank would proceed against plaint A schedule property also through the pro