IMPORTANT POINT
SARFAESI-Counter Claim-Suit by borrower claiming certain transaction being sham, null and void-DRT has no jurisdiction to entertain such claims.

AMIT RAWAL, J.

1. Present revision petition is directed against the impugned order dated 01.12.2012 passed by learned Civil Judge (Sr. Divn.), Sangrur whereby an application filed under Order 7, Rule 11 CPC seeking rejection of the plaint at the instance of defendant No. 2 has been dismissed.

2. It would be in the fitness of things to give brief facts of the matter.

3. Plaintiff-respondent No. 1 instituted a suit claiming declaration to be owner in peaceful possession of the house measuring 489 sq. yards giving the description of the boundaries towards, East, West, North and South, comprising of Khewat no.372/355, 372, khatoni no. 516 khasra nos. 137//6/2min/2-7, 14/2/0-3, 16/1-7, (ii) 398 Sq. yards equivalent to 398/18815 share of land comprising of khewat no. 510/510, 489, khatoni no. 691 to 702 khasra nos.136//9/2min/2-0-6.00, 136//10/2min/0-9-1.50, 11/6-13, 12/1min/19-450, 20/1/4-4,137//17min/4-0, 18/1/0.2, 196//10/2/0-9- 1.50, 136/1min/0-13, 136//10/2/0-1404.40, 136//10/2min/1-16- 1.80,136//10/2min/0-17-6.75, 136//10/2/1-1, 136//9/2/1-18, 10/2min/0-12, 136//9/2min/0-8-3.00,136//12/1min/1-5-7.50, 136//9/2min/1-0, 12/1min/1- 6-6.00, 136//102min/0-10 and (iii) 23 sq yards equivalent to 23/1209 share comprising of land khewat no. 610/392, khatoni no. 831, 832 khasra nos. 137//15/1min/1-9, 137//15/1min/0-11 situated at Bhawanigarh according to jamabandi for the year of 2008-09. It is stated that the said house is free from any type of encumbrances and not charged with any type of encumbrances whatsoever; with consequential relief of permanent injunction restraining the defendant No. 2 from interfering into the peaceful possession as well as creating 3rd party right by auctioning or selling the said house on the premise that defendant No. 1-Avinder Singh son of S. Bharpur Singh was owner of the house in dispute as per registered sale deed No. 1640 dated 28.11.1996. Afore mentioned house was sold vide sale deed No. 521 dated 29.05.2009 to the plaintiff and possession thereof was handed over to her. At the time of purchasing the house, defendant No. 1 told the plaintiff that the original sale deed had been lost and on the basis of certified copy and believing his representation and assurance to be correct, the afore mentioned property was purchased. Even defendant No. 1 had sworn an affidavit to this effect on 29.5.2009. Since defendant No. 2 threatened to take possession of the house and denied the ownership of the plaintiff, the suit was preferred by the plaintiff.

4. Learned counsel for the petitioner submitted that the suit against the financial institution, namely M/s Indiabulls, in view of the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "SARFAESI Act") was not tenable as the jurisdiction of the Civil Court is barred. Napinder Singh along with his father-Avinder Singh/co-applicant had availed the loan facility of Rs. 23,50,000/- and in lieu thereof the title of the property was mortgaged. The borrower defaulted the monthly instalment with interest. Accordingly, their account was declared as non-performing assets (NPA). A notice under Section 13 (2) of the SARFAESI Act was served upon the borrower on 23.3.2012 but the petitioner-Bank was astounded to receive a notice of the suit. It is, in these background that the application under Order 7, Rule 11 CPC was filed.

5. Learned counsel for the petitioner submitted that the petitioner was the secured creditor and the remedy, if any available for the plaintiff was before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. In support, she has relied upon a judgment rendered by this Court on 02.8.2013 in CR No. 4604 of 2013 but the trial Court committed a grave error while dismissing the application and if such type of practice is allowed to continue, no financial institution would be able to recover the amount, particularly when the property in dispute had been mortgaged.

6. Per cont