JUDGEMENT

1. This appeal has been preferred by the appellants/plaintiffs under section 96 of the Code of Civil Procedure against the judgement and decree dated 26.11.2022, passed by the Fourth Additional District Judge, Indore in Civil Suit No.921-A/2019.

2. In brief, the facts of the case are that the appellants/plaintiffs filed a civil suit for declaration simpliciter against the respondent/LIC Housing Finance Limited seeking the following relief :--

“The Plaintiffs therefore pray for a decree declaring that the structure of the Building constructed on the Plot No.1 & 2, Kibe Compound, Indore is not mortgaged with the Defendant;

Cost of the suit be also awarded to the Plaintiffs.”

3. The facts in brief are that the plaintiffs obtained a loan of Rs.12 Crore from LIC Housing Finance Ltd. and for the same, the disputed land situated at Plot No.1 & 2, Kibe Compound, Indore was kept as a collateral security with the LIC Housing Finance Ltd. The case of the plaintiffs is that as the plaintiffs defaulted in making the payment, a notice was affixed on their premises by the defendant/LIC Housing Finance stating that the LIC has the charge over the property and no transaction in respect of the said property is permissible. This notice was affixed on the premises on 19.8.2019, which has given rise to the cause of action to the plaintiffs. Further, the case of the plaintiffs is that certain credit facility has also been obtained by one M/s Kabeer Reality Pvt. Ltd. from the Punjab National Bank and for which, the superstructure constructed on the land (on which the loan was obtained from the LIC Housing Finance), was kept as collateral security and since the aforesaid notice was affixed by the LIC Housing Finance on the said superstructure, the civil suit has been filed seeking the aforesaid relief.

4. In the aforesaid civil suit, an application under Order 7 rule 11 of CPC has been filed by the defendant/LIC Housing Finance Ltd. contending that it is barred under the provisions of section 34 of the SARFAESI Act, 2002. A reply to the aforesaid application was filed by the plaintiffs contending that they have not challenged the measures of the Bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as the SARFAESI Act, 2002) and it was also stated that the dispute between the parties is purely civil in nature and cannot be adjudicated by the Debt Recovery Tribunal (DRT), and as such, no cognizance of the dispute which is raised by the plaintiffs can be taken and decided by the DRT. It was also stated that even section 17 of SARFAESI Act cannot be invoked as no such measures have been taken. The learned Judge of the Trial Court has decided the application under Order 7 rule 11 of CPC in favour of the defendant/LIC Housing Finance Ltd. and has rejected the suit, hence, this appeal.

5. Shri Anuj Agrawal, learned counsel appearing for the appellants has drawn the attention of this Court to a decision rendered by the Karnataka High Court in the case of Sri, Raghvan S v. Sri. N.B. Rajeev in Regular First Appeal No.1947 of 2016, wherein also, in similar circumstances, it has been held that only a civil suit is the remedy available to the plaintiff. Reliance is also placed by the counsel for the appellants on a decision rendered by the Division Bench of this Court in F.A. No.303/2020 in the case of Sagar Singh Damor v. Deepak Sharma delivered on 4.12.2021, in that case, the suit was for declaration of title to the suit property in which the application under Order 7 Rule 11 of CPC filed by the defendant was allowed, and the said decision was challenged before this Court in the First Appeal wherein it is held that such question cannot be decided by the DRT as contemplated under section 17 of the Act of 2002, and shall primarily be within the consideration of the Civil Court which has exclusive jurisdiction to entertain and decide the said dispute. Thus, it is