The main legal point established is that the jurisdiction of the civil court is barred under Section 34 of the SARFAESI Act, and parties should seek remedies before the Debts Recovery Tribunal.

AMOL RATTAN SINGH, J.

1. Though, by this petition, the petitioner has challenged the order of the learned Additional District Judge, Gurgaon, dated 17.7.2014 (Annexure P-2), reversing, in an appeal filed by the respondent herein, the order of the learned trial Court granting an interim stay to the petitioner (plaintiff in the suit), on an application filed under Order 39 Rules 1 and 2 CPC, the primary question, in the opinion of this Court, would be the jurisdiction of the civil Court to entertain such a suit at all, in view of the statutory bar contained in Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act), read with sub section 1 of Section 17 of the said Act, by which the remedy with any owner against any action taken by a secured creditor, in respect of a property, is before the Debts Recovery Tribunal.

2. At the time when notice was issued in this petition on 31.7.2014, the following order had been passed:-

“This revision petition is filed by the plaintiff who is alleged to have purchased the suit property from Laxmi Devi on 21.12.2009 and a mutation was sanctioned in that regard on 26.05.2010. When the respondent-bank tried to attach the property in dispute, the plaintiff came to know that Laxmi Devi had played a fraud upon her as she had mortgaged the suit property in favour of the bank as guarantor of her sons who had raised loan from the bank. Her application for temporary injunction was allowed by the Trial Court but the lower Appellate Court has reversed the order on the ground that the remedy lies with the petitioner to approach the Debts Recovery Tribunal under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

Counsel for the petitioner, while referring to a judgment of the Supreme Court in the case of Mardia Chemicals Ltd. and others v. Union of India and others, AIR 2004 Supreme Court 2371(1), has argued that the Civil Court would have the jurisdiction to look into the matter where there is a fraud played upon the secured creditor. It is submitted that the fraud has been played by Laxmi Devi along with her sons while not disclosing the bank that the property in dispute has already been sold to the petitioner on 21.12.2009 against a valuable sale consideration.

Notice of motion for 25.08.2014.

In the meantime, the respondents are restrained from attaching the suit property for recovery of any loan amount.”

3. Thereafter, arguments having been addressed at various stages, the issue had boiled down to what has been observed herein above, with Mr.Achint, learned counsel for the petitioner, naturally again relying upon the aforesaid judgment in the Mardia Chemicals Limiteds' case, wherein their Lordships have held as follows:-

“51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely V.Narasimhachariar (supra) p.135 at p.141 and 144, a judgment of the learned single Judge where it is observed as follows in para 22:

"The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restrainin