Civil Courts retain jurisdiction over partition disputes despite the SARFAESI Act barring jurisdiction in matters concerning measures taken by secured creditors.

ORDER :

KULDEEP MATHUR, J.

1. The present Civil First Appeal has been preferred against the order dated 11.05.2023 passed by the learned Additional District Judge No. 2, Bikaner (hereinafter referred to as ‘the learned trial Court’), whereby the application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’), read with Sections 17 , 34, and 35 of the SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT , 2002 (hereinafter referred to as ‘the SARFAESI Act’), was allowed, and consequently, Civil Original Suit No. 08/2023 (CIS No. 25/2023), titled ‘ Parasmal and Ors. v. Prakash Chandra and Ors. ’, was rejected.

2. Learned counsel for the appellants–plaintiffs submitted that the appellants–plaintiffs and respondents–defendants Nos. 1 to 19 are close relatives. The suit property situated at Pabu Chowk, Nai Line, Gangashahar, District Bikaner, is a pattasuda property belonging to late Shri Pannalal Marothi, who had five sons and one daughter, namely, Deepchand, Trilokchand, Kisturchand, Bhanwarlal, Jaskaran, and Jassudevi. Each descendant was entitled to a one-sixth share in the property. However, since Shri Trilokchand died issueless, the remaining descendants became entitled to an equal one- fifth share each in the property. The appellants–plaintiffs are the sons of Smt. Jassudevi, the daughter of late Shri Pannalal Marothi.

3. Learned counsel submitted that when the respondents– defendants Nos. 1 to 19 refused to give the appellants– plaintiffs their due share in the suit property on the pretext that the same had been mortgaged with respondent– defendant No. 20, i.e., the Branch Manager, Punjab National Bank, the appellants–plaintiffs were constrained to file a suit for partition before the learned trial Court.

4. During the pendency of the said partition suit, respondents–defendants Nos. 20 and 21, i.e., Punjab National Bank, filed an application under Order VII Rule 11 read with Section 151 of the C.P.C. and Sections 17 , 34, and 35 of the SARFAESI Act, contending that defendant No. 1, Prakash Chandra, had availed a loan of Rs. 2,41,20,000/- from the Bank and had mortgaged the suit property as security for the said loan. Upon his failure to repay the outstanding dues, proceedings under the SARFAESI Act were initiated, and the suit property was auctioned by the Bank on 29.11.2022.

5. Learned counsel for the appellants further submitted that the learned trial Court, by the impugned order, allowed the said application under Order VII Rule 11 C.P.C., holding that the appellants–plaintiffs ought to have approached the Debts Recovery Tribunal (DRT) to challenge the actions of Punjab National Bank, as the Civil Court lacks jurisdiction to entertain or adjudicate matters pertaining to properties governed by the SARFAESI Act. He contended that the learned trial Court, while allowing the application filed under Order VII Rule 11 C.P.C., failed to properly examine the averments made in the plaint as well as the documents placed on record. The suit had been instituted by the appellants–plaintiffs seeking partition of the ancestral property, over which defendants Nos. 1 to 19 had allegedly obtained a loan without having any right, title, or interest therein. It was submitted that the appellants–plaintiffs had committed no default in respect of the said loan transaction and were in no manner connected with or liable for the loan availed by defendants Nos. 1 to 19. Therefore, the appellants–plaintiffs were entitled to a decree of partition.

6. It was further urged that since the