2021 Supreme(Mad) 758

IN THE HIGH COURT OF JUDICATURE AT MADRAS
SANJIB BANERJEE, SENTHILKUMAR RAMAMOORTHY, JJ.
Indian Overseas Bank, rep. by its Branch Manager, Teynampet Branch, Chennai – Appellant
Versus
S. Venkatachalam – Respondent
C.R.P. (PD) No. 312 of 2020
Decided On : 18-03-2021

Point of law: Since any person aggrieved, in terms of Section 17 of the Act of 2002, has the right to approach the appropriate Debts Recovery Tribunal consequent upon the measures being taken by a secured creditor under Section 13(4) of the Act, the Debts Recovery Tribunal must be seen to be empowered to determine the issue which may arise in such proceedings pertaining to the right of the mortgagor to create the mortgage. As a consequence, the civil Court would have no authority to receive such a suit.

Headnote:

Administrative Tribunals Act, 1985 – Code of Civil Procedure, 1908 – Section 21 – Constitution of India, 1950 – Article 227 – Injunction – Declaration – Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Sections 17, 34 – Petitioner herein has been arrayed as a defendant in a suit by the respondent wherein the principal reliefs claimed pertain to a declaration in respect of an immovable property and the consequential injunction. – Case of the plaintiff is that upon certain arrangements within the family, the relevant property devolved on the plaintiff and R.Thiagarajan, at any rate, did not enjoy the exclusive rights in respect thereof. According to the plaintiff, the property was originally owned by one Sivagurunathan, who transferred it in favour of Sivannayaki Ammal alias Rajammal in 1960. – Sivannayaki Ammal died in 1991 leaving behind four legal heirs, namely, R.Rathinasabapathy; S.Thangam, wife of Sethu Muthiah; Sivagurunathan; and, R.Thiagarajan. – Plaintiff claims in O.S. filed before the City Civil Court, Chennai that, a general power of attorney was executed by R.Rathinasabapathy, S.Thangam and S.Parvathi (wife of Sivagurunathan) in favour of R.Thiagarajan; but such power of attorney was not acted upon at all and may not have seen the light of the day for more than 16 years.

Finding of court: Upon a secured creditor taking any measure in respect of any asset that it claims as its security, any person aggrieved thereby has, per force, only to approach the appropriate Debts Recovery Tribunal and not to invoke the jurisdiction of any other authority. – The bar under the first limb of Section 34 of the Act is a bar on the civil Court. – When there is a statutory bar on the forum, no lis can be entertained in derogation of such bar, as the forum would inherently be lacking in jurisdiction so to do. – The jurisdiction covers the subject-matter of the action and goes to the root of the matter which is incapable of ratification or condonation or being cured, unlike defects pertaining to pecuniary jurisdiction or territorial jurisdiction which may be overlooked at a late stage in view of Section 21 of the Code of Civil Procedure, 1908. – When an adjudicatory forum, even a sovereign forum as a civil Court, is prohibited by the express command of a statute to not receive a class of actions, the very entertaining of such an action would be of no effect and amount to naught. – The classical example in this situation was of a Small Causes Court taking up an arbitration matter. – The modern classical example is of a civil Court taking up a matter which is covered by the Administrative Tribunals Act, 1985. – Respondent assertion that the respondent merely questioned the propriety of the document and not action of the bank, is fallacious. – The bank-s action was based on the deposit of title deeds to it. – In such sense, the bank-s action cannot be severed from the deposit of title deeds and the two seen to be distinct. – At any rate, what is of importance is whether the issue that would arise in the suit upon the plaintiff-s assertion of a state of facts and the defendant-s denial thereof, would be capable of being adjudicated by the appropriate Debts Recovery Tribunal or the appellate authority as the words in such regard in Section 34 of the Act are “is empowered ... to determine“.–Since any person aggrieved, in terms of Section 17 of the Act of 2002, has the right to approach the appropriate Debts Recovery Tribunal consequent upon the measures being taken by a secured creditor under Section 13(4) of the Act, the Debts Recovery Tribunal must be seen to be empowered to determine the issue which may arise in such proceedings pertaining to the right of the mortgagor to create the mortgage. As a consequence, the civil Court would have no authority to receive such a suit.

Result: C.R.P Allowed