RSA 2329/2013(O&M)

1

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

RSA 2329/2013(O&M)

Date of decision:07/08/2013

Prem Lata and another

.............Appellants

v.

Zonal Manager,Punjab and Sind Bank and others

.............Respondent

CORAM: HON'BLE MR.JUSTICE JASWANT SINGH

Present:-

Mr.Saurabh Bajaj,Advocate for the appellants/plaintiffs

Jaswant Singh,J.(Oral)

Appellants/plaintiffs are in second appeal against the

concurrent judgements passed by both the courts below whereby on the

application of the respondent bank under Order 7 Rule 11 CPC, the suit

of the appellants/plaintiffs was held to be not maintainable in view of

Section 34 of The Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act,2002 (for short the SARFESI

Act).

It is averred that the petitioners/plaintiffs purchased a

residential house vide sale deed dated 27.9.2007 for a total sale

consideration of Rs.14 lacs. It is claimed that Rs.7 lacs were paid by the

plaintiffs from their own funds whereas the other sum of Rs. 7 lacs was

Joshi Rajinder Prashad

2013.08.20 11:58

I attest to the accuracy of this

Order.

High Court, Chandigarh.

RSA 2329/2013(O&M)

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raised as a loan from respondent no.1-Bank. It is averred that a secured

loan was raised against mortgage of the purchased property with the

help of respondent no.3-Jitender Kumar and Narinder Singh, Manager,

Punjab & Sind Bank, Model Town,Karnal. It is stated that

subsequently on 13.10.2008 the plaintiff was shocked to receive a

notice under Section 13(2) of the SARFESI Act, seeking possession of

the mortgaged residential house due to repeated defaults of due

instalments of loan for a sum of Rs.13.5 lacs. It is further asserted that

the plaintiffs had never affixed her signatures on documents for a loan

of Rs.13.5 lacs as her requirement was only for Rs.7 lacs. It was thus

claimed that she is a victim of fraud committed by Jitender Kumar and

Manager of the Bank. An FIR was also lodged against the said two

persons. It is further stated that the aforesaid two persons have

defrauded many other illiterate ladies of the area. Accordingly, a suit

for declaration and permanent injunction was filed. Both the courts

below have accepted the plea of respondent bank by rejecting the plaint

under Order 7 Rule 11 in view of provisions of Section 34 of the

SARFESI Act whereby the jurisdiction of the Civil Courts is

specifically barred.

Learned counsel, first of all, has not been able to explain as

to how an appeal was maintainable against the orders rejecting the

plaint. He, however, submits that wherever allegations of fraud are

alleged then jurisdiction of the Civil Courts is not barred.

After hearing the learned counsel for the

Joshi Rajinder Prashad

2013.08.20 11:58

I attest to the accuracy of this

Order.

High Court, Chandigarh.

RSA 2329/2013(O&M)

3

plaintiffs/appellants, I find that the learned trial court has, in view of

provisions of Section 34 of the SARFESI Act, as interpreted by

Hon'ble the Supreme Court in United Bank of India v Satyawati

Tandon and others, 2010(3) RCR (Civil) 963, rightly rejected the

plaint and relegated the plaintiffs to approach the Debt Recovery

Tribunal, if so advised. There is no quarrel regarding the proposition

that if the whole transaction is vitiated by fraud then the jurisdiction of

the Civil Courts would not be barred. However, in the present case

except a bald statement no particulars of the allegations of fraud have

been specifically pleaded as mandated by the provisions of Order 6

Rule 4 of the Civil Procedure Code,1908. Thus, the plea of jurisdiction

of the Civil Courts based on the allegations of fraud cannot be

countenanced. Accordingly, I find no illegality or perversity in the

approach of the learned trial court to return the plaint under Order 7

Rule 11 CPC.

Dismissed.

07.08.2013.

(Jaswant Singh)

joshi

Judge

Joshi Rajinder P