IMPORTANT POINT
Injunction – Proceedings under SARFAESI Act – Jurisdiction of Civil Court is not barred while Court adjudicating upon the rights of a tenant who is trying to protect his possession

ANIL KSHETARPAL, J.

1. Plaintiff has filed the present revision petition under Article 227 of the Constitution of India, for setting aside order dated 20.04.2017, confirmed in appeal vide order dated 31.05.2017, while deciding application for temporary injunction under Order 39 Rules 1 and 2.

2. Plaintiff-petitioner had filed a suit for permanent injunction restraining defendants no.1 and 2, their agents, attorneys, servants, employees, associates etc. from interfering or dispossessing the plaintiff from the portion consisting of two rooms adjoining bath room, one room, one hall room, one store, kitchen, common stairs case situated on the first floor and common entrance on the ground floor of property unit No.BXVIII/3318, Gurcharan Park, Gandhi Colony, Near New Model Town, Ludhiana.

3. Plaintiff claims that he is tenant under defendant no.3 since 02.01.2011 on payment of certain rent. He further claims that tenancy was reduced into writing on 02.02.2011.

4. Defendants appeared and contested the suit. Defendants no.1 and 2 are Canara Bank and its official. It was stated that the plaintiff has filed a suit in connivance with defendant no.3-Suman Bala. It was stated that defendant no.1-bank is proceeding against the property for recovery, which is mortgaged with the bank. It was claimed that the defendant-bank has already served notice to the defendants under Section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Act'). The suit is collusive as plaintiff and defendants both are residing under the same roof. The maintainability of the suit was also objected to.

5. Learned trial court as well as first appellate court dismissed the application filed under Order 39 Rules 1 and 2.

6. Learned counsel for the petitioner has submitted that the possession of tenants are protected by the Rent Act and it cannot be taken from a tenant in exercise of powers under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is further submitted that rights of tenants cannot be jeopardize in this manner. Counsel has further submitted that the protection under the Rent Control Act cannot be defeated by a creditor while exercising powers under the Act of 2002.

7. I have considered the submissions of learned counsel for the petitioner and have gone through the impugned orders passed by the Courts below.

8. Learned first appellate court has dismissed the appeal apart from other reasons on the ground that Section 34 of the Act bars the jurisdiction of Civil Court. Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, no doubt bars the jurisdiction of a civil Court. However, such bar would not apply to a tenant, seeking to protect his possession, who has nothing to do with the transaction of taking loan as he is neither borrower nor guarantor. Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, is reproduced as under:-

“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 Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.”

9. A reading of Section 34 of the Act establish that the jurisdiction of the civil Court is barred in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine. The dispute between land owner or tenant is not subject matter of adjudication by Debts Recovery Tribunal. Therefore, it is not correct to say t