JUDGMENT

(Prayer: Petition filed under Article 227 of the Constitution of India as against the Fair and Decreetal Order dated 12.06.2018 passed by the learned Principal District Judge, Namakkal, in I.A.No.534 of 2017 in O.S.No.115 of 2017 and consequently, allow the same in the interest of justice, equity and good conscience.)

1. This Civil Revision Petition arises against the Fair and Decreetal Order passed under Order 7 Rule 11(d) of the Code of Civil Procedure by the learned Principal District Judge, Namakkal, in I.A.No.534 of 2017 in O.S.No.115 of 2017.

2. O.S.No.115 of 2017 has been presented for the following reliefs:

3. The suit is one for partition and separate possession. It is the case of the 6th defendant/IDBI Bank, Salem Branch that the defendants 1, 2 and 5 had obtained loan from the petitioner/Bank on 15.11.2016. They failed to repay the dues to the Bank and hence, the said loan was declared as Non Performing Assets. Notice was issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (hereinafter referred to as the SARFAESI Act) on 30.12.2016. Inspite of notice sent to the defendants 1, 2 and 5, they did not repay the amount. Hence, the petitioner/Bank took possession under Section 13(4) of the SARFAESI Act on 26.04.2017. It is the further case of the Bank that the defendants 1, 2 and 5 had filed a petition before the Debts Recovery Tribunal, Madurai, in I.A.No.1131 of 2017 in S.A.No.217 of 2007 to stay further proceedings of the Bank pursuant to the notice of possession. The Debts Recovery Tribunal had passed a conditional order. Since the conditional order was not complied with, the Stay order was cancelled automatically. According to them, in order to defeat the 6th defendant from taking possession of the suit property under Section 13(4) of the SARFAESI Act, the present suit for partition had been filed. It was argued that Section 34 of the SARFAESI Act is a bar to the suit and therefore, a petition for rejection of Plaint was filed alleging that from the statement made in the Plaint, the suit is barred.

4. A counter was filed to this application stating that as per Section 6(4) of the Hindu Succession Act, 2005, the minor coparcener is not bound to pay any debt due by his father and his grandfather. It is also stated that the DRT has no jurisdiction to deal with a claim as in a suit for partition. The minor petitioners stated that they have filed the suit only with respect to their shares of the property. They stated that the Bank had given an assurance that they will not take further steps with respect to the agricultural properties. It was further pleaded that as per Order 7 Rule 11 of CPC, no document filed by the defendant can be looked into.

5. The learned Trial Judge after hearing the arguments on both sides dismissed the application.

6. Originally, this Civil Revision Petition was listed before this Court during pandemic lockdown. Though the respondents had been served, they had not entered appearance. Consequently, this Civil Revision Petition came to be allowed. Thereafter, an application was filed in C.M.P.No.4366 of 2023 to set aside the said order Under Order 41 Rule 21 of CPC. By an order dated 20.07.2023, the order, in which the respondents did not participate was set aside and this Civil Revision Petition was restored to file. It is now being heard on its merits.

7. I heard Mr.K.Balamurali, learned counsel for the petitioner and Mr.N.Suresh, learned counsel for the respondents 1 and 2.

8. A primary issue that has to be resolved is whether the suit is barred by virtue of Section 34 of the SARFAESI Act. I have to necessarily extract Section 34 of the SARFAESI Act in order to appreciate its scope and content. Section 34 of the SARFAESI Act reads as follows:

“34.Civil court not to have jurisdiction.—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Reco