JUDGMENT

1. The appellant has filed this present appeal being aggrieved by the order darted 22.6.2005 passed by 13th Additional District Judge, Indore in Civil Suit No.22-A/5 dismissing the plaintiff's suit on the ground that jurisdiction of the civil court is barred under section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as “Act, 2002”).

2. Brief facts of the case are that appellant purchased the agricultural land situated at Lasudiya Mori, Tehsil and District- Indore survey Nos.27/2 area 0.808 hectare, 7.1 area 0.530 hectare, survey No.27/4 area 558 hectare and 20/8 area 405 hectare and respondent No.1 granted financial assistance to the appellant against the mortgaged of the aforesaid agricultural land and due to financial crisis appellant could not repay the loan amount and their loan amount became irregular and subsequently declared NPA.

3. Respondent No.1 issued notice under section 13(2) of the Act, 2002 for repayment of loan. Appellant sent reply to the aforesaid notice and submitted the compromise proposal under OTS scheme announced by the Reserve Bank of India. Meanwhile, respondent filed an application before Debt Recovery Tribunal (DRT) and appellant filed a writ petition under Article 226 of the Constitution of India i.e. W.P. No.768/2003 assailing the illegality and validity of the notice issued by the respondent No.1, which was dismissed by the High Court. Being aggrieved by the order dated 26.08.2003 passed in W.P. No.768/2003, appellant preferred an appeal i.e. Writ Appeal No.182/2003 before the Division Bench of this High Court which was also disposed by this High Court in light of the verdict of the apex Court in the case of Mardia Chemicals Ltd. etc. v. Union of India and others, 2004 (4) SCC 311.

4. The appellant filed a civil suit before the District Judge, Indore seeking relief that auction proceeding initiated by the respondent is fraudulent and contrary to law, hence, cannot be made. Further, he sought prohibitory injunction that disputed property cannot be auctioned under the provisions of the Act, 2002 because it is an agricultural land and covered under section 31(i) of the Act, 2002 and further sought mandatory injunction for compliance of the directions issued in the matter of Mardia Chemicals Ltd. (supra).

5. During the pendency of the suit, respondent No.1 filed an application for rejection of the plaint under Order 7 rule 11 of CPC on the ground that civil suit is not mandatory because jurisdiction of the civil Court is barred under section 34 of the Act, 2002.

6. The appellant filed a detailed reply in the matter. After hearing the learned counsel for the parties, trial court allowed the application filed by the respondent and rejected the plaint by holding that jurisdiction of the civil suit barred.

7. Being aggrieved by the impugned order, appellant preferred this appeal on the ground that trial Court has not exercised its jurisdiction in the judicial manner and in accordance with law. Respondent No.1 deliberately deposed the wrong and incorrect fact in exercise of jurisdiction which otherwise could not be exercised. The respondent had got attached agricultural land of the plaintiff which is exempted from the auction, sale and attachment as per clear provision of section 31 (i) of the Act. Trial court further committed error in holding that the suit is barred by section 34 of the Act, 2002 and the trial Court misinterpreted the judgment passed by the apex Court in Mardia Chemical Ltd. (supra).

8. He further stated that fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. The respondent's action is fraudulent as self proclamation was by falsely describing property and neither reserved price nor estimated price was mentioned more so often made by the plaintiff was not considered. So, respondents were acting in tandem and committed fraud in proceeding further, so