J U D G M E N T

(Judgment of the Court was delivered by SUNDER MOHAN,J.)

The Appeal is directed against the order dated 05.12.2015 passed in I.A.No.1118 of 2011 in O.S.No.175 of 2009 filed by the first Respondent under Order 7 Rule 11 of Civil Procedure Code for rejection of plaint.

2.The facts leading to the filing of the above Appeal are as follows:-

(a) The Appellants filed a suit for partition against the second Respondent herein claiming 3/4th share in the suit schedule property. The first Respondent was also shown as Defendant in the said suit.

(b) Their case in the suit was that the second Respondent had obtained credit facility from the first Respondent. He had no right to mortgage the suit schedule property as it was an ancestral property. He had right to mortgage only his 1/4th share in the property and the mortgage in respect of whole of the property is not binding on the Appellants.

(c) In the said suit, the first Respondent herein filed an application in I.A.No.1118 of 2011 under Order 7 Rule 11 and Section 151 C.P.C praying for rejection of plaint. The first Respondent contended in the said I.A., that the suit was not maintainable since Section 34 of SARFAESI Act bars the jurisdiction of Civil Court. The first respondent further stated that if the Appellants were aggrieved over the initiation of the SARFAESI proceedings taken by the first Respondent, it was open to them to approach the Debts Recovery Tribunal by filing an Appeal/Application under Section 17 of the said Act. The suit filed by the Appellants by suppressing all the above legal aspects is liable to be dismissed and hence prayed for rejection of plaint.

(d) The first Appellant filed a counter to the said petition stating that the suit is maintainable and Section 34 of the SARFAESI Act does not bar the suit of the nature filed by the Appellants. The suit for partition can only be decided by the Civil Court and the Debts Recovery Tribunal has no jurisdiction to decide the suit for partition. The second Respondent herein had unlawfully mortgaged the entire property in favour of the first Respondent and the same is not binding on the Appellants. He has no right over the entire extent of land and the Appellants are entitled to 3/4th share in the land.

(e) The trial Court found that the Appellants if aggrieved by the action of the second Respondent in mortgaging the entire land in favour of the first respondent and are aggrieved by the action of the first respondent in initiating proceedings under SARFAESI Act have a remedy to file an Application under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal. The trial Judge further held that Section 34 of the SARFAESI Act prohibits Civil Courts from entertaining any suit or proceedings in respect of any matter which are Debts Recovery Tribunal is empowered to determine under the SARFAESI Act. The learned Judge therefore found that since the Appellants had a remedy to file an Application under Section 17 of the SARFAESI Act, the suit was not maintainable and hence allowed the application for rejection of plaint.

3.Heard Mr.S.Mukunth, learned counsel for the Appellants and Mr.P.Raghunathan, learned counsel for the first Respondent.

4.The learned counsel for the Appellants submitted that the SARFAESI Act did not provide for determining the issues such as whether the properties are ancestral in nature and as to whether the Appellants are entitled to partition of the suit schedule property. Section 34 of the SARFAESI Act does not bar the suit for partition in a Civil Court. The Debts Recovery Tribunal has no right to decide the nature and character of the property and it is only for the Civil Court to adjudicate such an issue. The learned counsel further submitted that the mortgage created by the second Respondent in favour of the first Respondent is not binding on the Appellants and they cannot be asked to approach the Debts Recovery Tribunal to determine their rights.

5.The learned counsel for the first Resp