w w w . L a w y e r S e r v i c e s . i n



Gramin Bank of Aryavart & Another v/s M/s. Maa Laxmi Ice & Cold Storage & Others


Company & Directors' Information:- R J COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049659

Company & Directors' Information:- S. D. COLD STORAGE PRIVATE LIMITED [Active] CIN = U15132UP1995PTC018791

Company & Directors' Information:- H M ICE AND STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC101275

Company & Directors' Information:- D G COLD STORAGE PRIVATE LIMITED [Active] CIN = U45209WB2001PTC092809

Company & Directors' Information:- N P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15549WB1997PTC085229

Company & Directors' Information:- P G ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U15435UP2015PTC070434

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC041010

Company & Directors' Information:- GRAMIN COLD STORAGE PVT LTD [Active] CIN = U00074BR1980PTC001452

Company & Directors' Information:- G C G COLD STORAGE PRIVATE LIMITED [Active] CIN = U01400MH2012PTC235712

Company & Directors' Information:- L P COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC021864

Company & Directors' Information:- P D COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2010PTC039698

Company & Directors' Information:- N R S COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031524

Company & Directors' Information:- S M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC040843

Company & Directors' Information:- A TO Z COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2010PTC040956

Company & Directors' Information:- A-1 COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900TG2015PTC100777

Company & Directors' Information:- D N COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1989PTC010708

Company & Directors' Information:- P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15139UP2001PTC026373

Company & Directors' Information:- N L COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022ML2001PTC006536

Company & Directors' Information:- K H I COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC100373

Company & Directors' Information:- K J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1996PTC018274

Company & Directors' Information:- S J ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC022564

Company & Directors' Information:- V K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022RJ1998PTC014964

Company & Directors' Information:- R M COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024532

Company & Directors' Information:- S L P COLD STORAGE PRIVATE LIMITED [Converted to LLP] CIN = U00063KA1997PTC022544

Company & Directors' Information:- M D COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP2001PTC025987

Company & Directors' Information:- S N COLD STORAGE PVT LTD [Active] CIN = U15132WB1977PTC031040

Company & Directors' Information:- A K COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024374

Company & Directors' Information:- G. T. COLD STORAGE PRIVATE LIMITED [Active] CIN = U70101UP1999PTC024239

Company & Directors' Information:- S R ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1988PTC030645

Company & Directors' Information:- G L ICE & COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U15122UP2012PTC052836

Company & Directors' Information:- G D COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1997PTC084601

Company & Directors' Information:- J S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020250

Company & Directors' Information:- B C COLD STORAGE PRIVATE LIMITED [Active] CIN = U45302PB1997PTC019355

Company & Directors' Information:- G S P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069618

Company & Directors' Information:- R R COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022TZ1995PTC006478

Company & Directors' Information:- H J COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1999PTC089452

Company & Directors' Information:- J M C ICE AND COLD STORAGE PVT LTD [Strike Off] CIN = U63020MH1980PTC023218

Company & Directors' Information:- B K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020070

Company & Directors' Information:- J T S COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2011PTC044733

Company & Directors' Information:- COLD STORAGE CORPORATION OF INDIA LIMITED [Active] CIN = U25193UP1946PLC001472

Company & Directors' Information:- INDIA COLD STORAGE AND ICE COMPANY LIMITED [Strike Off] CIN = U15133UP1946PLC001591

Company & Directors' Information:- M K R S S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63090WB2020PTC241530

Company & Directors' Information:- LAXMI COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022BR1987PTC002540

Company & Directors' Information:- R G P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74999KA2006PTC039844

Company & Directors' Information:- ICE INDIA PVT LTD [Strike Off] CIN = U72400ML1996PTC004753

Company & Directors' Information:- J P G A COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB2005PTC028831

Company & Directors' Information:- R B COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022BR1979PTC001418

Company & Directors' Information:- N J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63020DL2010PTC207001

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Strike Off] CIN = U63022OR1985PTC001574

Company & Directors' Information:- S V S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U74999AP1999PTC033134

Company & Directors' Information:- R V COLD STORAGE PVT LTD [Strike Off] CIN = U15133UP1988PTC010122

Company & Directors' Information:- V L S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63010TG2011PTC072072

Company & Directors' Information:- M K V ICE AND COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031508

Company & Directors' Information:- ICE AND COLD STORAGE COMPANY PRIVATE LIMITED [Strike Off] CIN = U15133UP1949PTC002125

Company & Directors' Information:- M Y COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2012PTC053516

Company & Directors' Information:- K T COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022NL2001PTC006616

Company & Directors' Information:- M M COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63090TG2013PTC090068

Company & Directors' Information:- H. R. COLD STORAGE PRIVATE LIMITED [Active] CIN = U63030GJ2016PTC092718

Company & Directors' Information:- A K STORAGE PRIVATE LIMITED [Strike Off] CIN = U99999MH1978PTC020884

Company & Directors' Information:- COLD STORAGE (INDIA) LTD. [Dissolved] CIN = U99999MH1922PTC000998

Company & Directors' Information:- THE LAXMI BANK LIMITED [Liquidated] CIN = U99999MH1938PLC010291

Company & Directors' Information:- INDIA COLD STORAGE CO. LTD. [Not available for efiling] CIN = U99999MH1948PLC006673

Company & Directors' Information:- LAXMI BANK LIMITED [Under Liquidation] CIN = U99999MH1949PLC007302

    Matters Under Article 227 No. 4378 of 2017

    Decided On, 18 September 2017

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MRS. JUSTICE SUNITA AGARWAL

    For the Petitioners: Amrish Sahai, Advocate. For the Respondents: Rishi Chadha, Advocate.



Judgment Text

Counter affidavit filed by Sri Rishi Chadha learned counsel appearing for the respondent/plaintiffs no.1 & 2 is taken on record.

Sri Amrish Sahai learned counsel appearing for the petitioner herein submits that he does not propose to file rejoinder affidavit as the dispute being raised in the present petition is legal in nature.

With the consent of the learned counsel for the parties, the matter has been heard for final disposal at the admission stage itself.

The present petition is directed against the order dated 28.04.2017 passed by the Ist Additional Civil Judge (S.D.) Aligarh in Original Suit no.91 of 2017 (M/s. Maa Laxmi Ice & Cold Storage & another Vs. Gramin Bank of Aryavart & others). The petitioners herein are the defendants in the aforesaid suit. They are challenging the jurisdiction of the Civil Court in entertaining the said suit in view of the express bar of section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act' 2002 (hereinafter referred as 'SARFASI Act'). The order impugned in the present petition is the order passed on the application 26-C filed by the defendants/petitioners under section 34 of the SARFASI Act challenging the jurisdiction of the Civil Court to entertain and try the said suit.

The facts relevant to decide the controversy at hands are that the respondent nos.1, 2 and 3 availed certain financial facilities from the petitioner bank and mortgaged certain immovable properties on an agreement arrived between the parties. Certain credit facilities amounting to Rs.3,48,07,000/- were sanctioned by the petitioner bank against the mortgage of certain immovable properties. The details of the immovable properties over which mortgage was created has been given in 'paragraph no.4' of the present petition. It appears that respondent nos.1, 2 and 3 had failed to repay the loan and the interest thereon w.e.f 01.11.2015, as a result of it, a notice dated 03.08.2015 under section 13(2) of the SARFASI Act was issued to the respondents. The claim of the petitioner bank is that the respondent nos.1, 2 & 3 had failed to give any reply to the said notice. As a result thereof, another notice dated 22.09.2016/23.09.2016 under section 13(2) of the SARFASI Act was issued.

The proceeding initiated under the SARFASI Act has been culminated to the stage of taking possession under Section 14 of the said Act, with the passing of the order dated 09.05.2017. However, in the meantime, the present suit has been filed by the respondent nos.1 and 2 in the month of February, 2017 with the assertion that the bank was proceeding fraudulently against the prime and collateral securities of the plaintiffs/respondent nos.1 and 2 and the plaintiffs were entitled to the decree of permanent prohibitory injunction restraining the defendants no.1 to 3 namely the petitioners herein from proceeding further under the SARFASI Act. The entire proceedings undertaken by the bank against the plaintiff/respondent no.1 and 2 was, therefore, vitiated by fraud. The plea of fraud has been raised in paragraph no.23 of the plaint which reads as under:-

'23. That the plaintiffs hereafter furnish the elements of fraud and misrepresentation:

(a) The notice under Section 13(2) of the 2002 Act, served on 03.08.2015 about the accounts of plaintiff No.1 shows that the defendants No.1 & 2 has served the said notice involing the properties both as prime security of defendant No.4 along with the properties of plaintiff No.2 whereas at the time of Debt Restructuring Agreement, the loan, liabilities and securities of each of the entities were segregated and documented in the said agreement. It is relevant to state that in the said notice the defendants No.1 &2 have specified that the continuing securities already created for credit facilities to plaintiff No.1 and defendant No.4 were continuing mortgage in defendant No.4 and vice versa;

(b) That after the notice of Section 13(2) of the 2002 Act, the defendants No.1 & 2 issued the notice under Section 13(4) of the 2002 Act for taking possession of the immovable properties. Surprisingly, the defendants No.1 & 2 sought the possession of only the residential plots leaving aside the agricultural plots which they were claimed were mortgaged and the prime securities of the plaintiff No.1 and the defendant No.4 as referred to in the notice under Section 13(2) of the 2002 Act have been excluded. A photo copy of the notice Under Section 13(4) dated 05.11.2015 is filed herein with Affidavit as Annexure no.17.

(c) That defendants No.1 & 2 published on 25.11.2015 the Possession Notice in the newspaper Amar Ujala. In this Possession Notice so published the prime securities of plaintiff No.1 and defendant No.4 were also included. A photo copy of the Newspaper 'Amar Ujala' dated 25.11.2015 is filed here with Affidavit as Annexure No.18.

(d) That subsequently defendants No.1 & 2 served the notices dated 22.09.2016 under Section 13(2) of the 2002 Act in respect of loan account of defendant No.4. To the utter surprise of the plaintiffs, in this notice again, the defendants No.1 & 2 have included the properties of the plaintiffs while initiating the recovery process against defendant No.4 though the loan, liabilities and securities were totally segregated. The notices were served not only on the Partners/Directors of the plaintiffs but also on the guarantors who stood guarantee for the repayment of the loan granted to the plaintiffs.

(e) That the defendants No.1 to 3 are guilty of misrepresentation because when the Director of defendant No.4 served the notice dated 18.10.2016 making it clear that in the year 2013 the loan, liabilities and securities of all the three entities were separated and with the permission of the Bank, namely defendants No1 to 3, the said company has been purchased by them, the defendants No.1 & 2 replied on 28.10.2016 stating that the notice has been served upon the plaintiffs and the defendant No.4 because the securities of plaintiffs were extended to the order advance accounts namely the plaintiffs. The plaintiffs No.1 & 2 have been very categorical in stating that the notice was served upon Smt. Mithlesh Kumari in her capacity as Director of defendant No.4 and also as guarantor for defendant No.4. However, the assets of defendant No.4 are extended as security to other advance account extended to the plaintiffs. Therefore, the defendant Bank claimed that they were in their right to serve the notice upon all of them namely the partners/directors of the plaintiffs and defendant No.4 involving the securities of each of them against the loan of any of them. A photo copy of letter dated 28.10.2016 is filed here with Affidavit as Annexure No.19.

Presently the plaintiffs confine their claim and contention with respect to fraud and misrepresentation on the basis of the documents which the plaintiffs came to possess, however, the plaintiffs reserve their right to incorporate such facts as would be revealed further when the plaintiffs come to possess further details and documents at a later stage as the plaintiffs have already applied for the same under the Right to Information Act 2005 by application by hand dated 21.12.2016 and by letter dated 19.01.2017 sent by post.'

The basis of the filing a suit for injunction was that a loan re-structuring agreement dated 28.03.2013 had been arrived between the plaintiffs and the defendant bank and the immovable properties of the plaintiffs (who are guarantors) have been delinked and the bank had agreed to proceed against the prime and collateral securities of the borrower, only.

Submission is that in the light of the said agreement, it was not open for the bank to proceed against the immovable properties of the guarantors/plaintiffs under the SARFASI Act. The petitioner bank raised objection regarding the maintainability of the suit in view of the express bar under section 34 of the SARFASI Act. It was pleaded that the question being raised in the said suit comes within the meaning of the 'matters which can be adjudicated by the Debt Recovery Tribunal or the Appellate Tribunal) under the SARFASI Act.'

The Court of first Additional Civil Judge (S.D.), Aligarh, by the order dated 28.04.2017, disposed of the application 26-C moved by the defendants bank raising objection under section 34 of the SARFASI Act and hence this petition.

At this stage, it is noteworthy that as per the disclosure made by the respondent nos.1 and 2 in the counter affidavit filed today, a writ petition namely writ petition no.21625 of 2017 (M/s Maa Laxmi Ice & Colde Storage & another Vs. State of U.P. & others) has been filed challenging the order dated 09.05.2017 passed by the Additional District Magistrate, (Finance and Revenue), Aligarh under Section 14 of SARFASI Act. In the said petition, a plea was taken by the plaintiffs respondent no.1 and 2 that the Civil Court was lying vacant and as such the suit for quashing of the proceedings against the respondent bank could not be proceeded with.

It appears that on the said plea, the orders dated 17.05.2017 and 19.05.2017 had been passed in the aforesaid petition by the Division Bench of this Court. By means of the order dated 19.05.2017, the bank has been directed to proceed for realization of the outstanding loan in view of the express conditions in the re-structuring agreement to link/discontinue prime and collateral securities belonging to petitioner no.1 therein namely M/s Maa Laxmi Ice and Cold Storage, (respondent no.1 herein). However, in so far as the petitioner no.2 therein namely M/s Devi Laxmi Food Product (India) Pvt. Ltd. (respondent no.2 herein), the order passed under Section 18 of the SARFASI Act has been kept in abeyance, in respect of the properties which were delinked and discontinued from the loan by way of the said restructuring agreement. It was however, directed that the bank shall be free to proceed against other properties pledged as security to the loan by the borrower or guarantor, in accordance with law.

With reference to the above noted order dated 19.05.2017 passed by the Division Bench of this Court, learned counsel for the respondent Sri Rishi Chadha would urge that the present petition is an effort of the petitioner bank to circumvent the directions of the Division Bench and this Court being a single bench may not proceed in the matter.

This submission of the learned counsel for the respondent is found misconceived, in as much, the present petition has been filed by the bank invoking supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. The question herein is with regard to the correctness of the order passed by Civil Court, on the question of its jurisdiction.

On the merits, learned counsel for the respondents vehemently urged that the petitioner had committed fraud in not honouring the re-structuring agreement arrived between the parties on 28.03.2013. Schedule-C of the said agreement has been placed before the Court in order to assert that the bank had agreed to de-linked/discontinue prime and collateral security of M/s Maa Laxmi Ice and Cold Storage namely the respondent no.1 herein. The action of the bank in proceeding to attach the immovable properties belonging to respondent no.4, therefore, is a glaring example of the fraud committed by the bank. The Civil Court, therefore, cannot be said to have erred in proceeding with the said suit after disposing of the application moved by the defendant bank raising objection regarding its jurisdiction.

It is further contended that no injunction whatsoever has been granted by the Civil Court rather only direction has been given to the bank to utilize the prime and collateral securities of the borrower for recovery of his debts and not to utilize the prime and collateral securities of the plaintiffs. Such an order may not be interfered with by this Court as it would not cause any injustice to the petitioner bank Reliance is placed upon the judgment of the Apex Court in Mardia Chemicals Ltd. Vs. Union of India reported in AIR 2004 (SC) 2371 (emphasis paragraph no.51) and the judgment of the Madras High Court reported in AIR 1955 Madras 135 V. Narasimhachariar vs Egmore Benefit Society.

Learned counsel for the petitioner, on the other hand, placed reliance upon the judgment of the Apex Court in United Bank of India Vs. Satyawati Tandon reported in 2010 8 SCC 110 to submit that the bar of jurisdiction of civil court under Section 34 of the SARFASI Act is clear and specific. The exception carved out by the Apex Court in Mardia Chemical (supra) is to apply to very limited extent only in an exceptional case. The Civil Court or the High Court are not empowered to grant injunction. Complete and efficacious remedy has been provided to the borrower and the guarantor both, under the SARFASI Act. The Civil Courts are, therefore, barred from entertaining the suit and issuing injunction which would have a serious adverse impact on the right of bank to recover its dues.

Heard submissions of the learned counsel for the parties and perused the record and carefully gone through the decisions of the Apex Court relied upon by the rival parties. The position regarding power of the bank to proceed for recovery of its debts and rights of the borrower and guarantor to challenge the action of the bank before the statutory authorities under the SARFASI Act, is fairly well settled. The validity of the SARFASI Act came to be considered by the Apex Court in the case of Mardia Chemical (supra). Upholding the same, it has been held therein that the bar of jurisdiction in respect of the matter which can be determined by the tribunal (debts recovery tribunal or appellate tribunal), is express and specific as per Section 34 of the SARFASI Act. Aggrieved by an order or proceeding undertaken by the bank under the provisions of Section 13 (2) and (4) and Section 14 of the Act, any person (including borrower) has a right to approach the Debts Recovery Tribunal under Section 17 of the Act.

It is observed by the Apex Court in Mardia Chemical (supra) that the proceeding under Section 17 of the Act are in lieu of the Civil Suit which remedy is ordinarily available but for the bar under section 34 of the SARFASI Act. The word 'appeal' used in section 17 of the Act seems to be a misnomer as it is the initial action which is brought before a forum as prescribed under the Act. However, the remedy of 'appeal' under Section 17 of the Act being a creature of statute will be available against any order passed or the proceedings undertaken under the Act itself.

It was observed therein that the Act provides complete efficacious remedy to get the matter adjudicated upon by the statutory tribunal and reasonable protection has been given to the borrowers and the guarantors. The said provision cannot be said to be unconstitutional and the vires of the Act has been upheld. However, Sub section (2) of 17 which provides the pre-conditions of deposits of 75% of the amount claimed in the notice under Section 13(2) of the Act has been held to be oppressive, unreasonable, arbitrary and violative of Article 14 of the Constitution. The final direction issued in paragraph no.80 of the above noted report are as under:-

'80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows:-

1. Under sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debt Recovery Tribunal under Section 17 of the Act, at that stage.

2. As already discussed earlier, on measures having been taken under sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debt Recovery Tribunal.

3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition at it may deem fit and proper to impose.

4. In view of the discussion already held on this behalf, we find that the requirement of deposit of 75% of amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down.

5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the court.'

In Union of India (supra), the Apex Court while dealing with the question of power of the High Court to issue writs under Article 226 of the Constitution of India and to entertain the petitions under Article 227 of the Constitution of India against an order passed by the tribunal under section 19 of the DRT Act, has raised a serious concern that despite repeated pronouncements of the Apex court, the High Court continued to ignore the availability of statutory remedies under the DRT Act and the SARFASI Act and exercise jurisdiction under Article 226 for passing order which have serious adverse impact on the right of the banks and other financial institutions to recover their dues. A word of caution has been added with the observation therein that the Court in future, will exercise its discretion in such matter with great caution, care and circumspection.

It has been observed therein that the SARFASI Act has been enacted with a view to provide a special procedure for recovery of debts dues to banks and institutions. There is hierarchy of appeal provided in the Act, namely, filing of appeal under Section 20 of the Act. This Fast Track procedure provided under the Act cannot be allowed to be derailed either by taking recourse to the proceeding under Article 226 and 227 of the Constitution or by filing a Civil Suit, which is expressly barred.

So far as the jurisdiction of Civil Court is concerned, the observations made in Mardia Chemical (supra) can be taken aid of only in a case where the action of the bank is shown to be fraudulent or their claim may be so absurd and untenable which may not require any probe. Otherwise, it is not permissible to bring an action in the Civil Court.

In Industrial Investment Bank of India Ltd. Vs. Marshal's Power & Telecom (I) Ltd. & another reported in 2007 (1) SCC 106, it has been held that unless a case of fraud or existence of some such vitiated factor is established or prima facie case is made out, the jurisdiction of Civil Court is barred. The relevant observation of the Apex Court in this regard are reproduced as under:-.

'…....The Debts Recovery Tribunal is a special forum created by a special enactment for the purpose of enforcement of special types of claims arising in favour of financial institutions. Thus, competent proceedings are instituted before such a Tribunal by a financial institution seeking to enforce its claimed rights. Whatever defences the plaintiff herein may have against the claims of the first defendant before the Debts Recovery Tribunal, have to be put forward by the plaintiff before the Debts Recovery Tribunal. The mere fact that the plaintiff chose to rush to the Civil Court on receipt of a notice from the first defendant in an attempt to thwart the enforcement of the obligations it has allegedly incurred, does not justify the grant of an interim order of injunction restraining the enforcement of the rights arising out of an alleged hypothecation and a charge created by the plaintiff in favour of the first defendant. That apart, to grant an injunction restraining the enforcement of orders passed by the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Even then, the order of injunction as now granted could be granted only in exceptional cases.'

In the light of the legal position, discussed above, this Court having carefully gone through the order dated 28.04.2017 passed by the trial court, is of the opinion that the trial court had no jurisdiction to entertain and try the aforesaid suit. The jurisdiction of the trial court in the present case is expressly barred under section 34 of the SARFASI Act. In the facts and circumstances of the present case, the exception carved out in Mardia Chemical (supra) is not attracted in the present case.

Having examined the plaint averments, the restructuring loan agreement and the order of the Civil Court, this Court is of the firm view that the jurisdiction of the civil court, in the instant case, is expressly barred under section 34 of the SARFASI Act. The court has arrived at the said conclusion for the reasons that:-

(a) there is no dispute about the fact that the borrower namely M/s Vaibhav Laxmi Chilling Plant and Preservation Pvt. Ltd., a company incorporated under the Companies Act 1956 was represented by its director Sri Ragvendra Singh, the partner of M/s Maa Laxmi Ice and Cold Storage and Managing Director of M/s Devi Laxmi Food Products (India) Pvt. Ltd.

(b) The lands and building on which, the cold storage of M/s Vaibhav Laxmi Chilling Plant and Preservation Pvt. Ltd. was running, is still in the name of Sri Raghvendra Singh and Parvendra Pratap Singh, who are guarantors of the loan given in the name of M/s Vaibhav Laxmi Chilling Plant and Preservation Pvt. Ltd.

(c) The immovable property with respect to which, the bank is proceeding are 'secured assets' mortgaged for the loan/ credit facility sanctioned by the bank.

(d) The details of immovable properties mortgaged with the bank against various loans and security documents, as given in paragraph no.4 of the present petition, are not disputed in paragraph no.60 of the counter affidavit filed by the respondents herein.

(e) The debts re-structuring agreement arrived between the parties on 28.03.2013 was between the bank, borrower and the guarantor. The said agreement had been arrived between the parties at the request of the borrowers and the guarantors. The bank had signed the said agreement without prejudice to its right under the facilities and financial documents executed between the parties.

(f) The details of re-structuring loan has been given in Schedule-C of the said agreement subject to the terms and conditions drawn in the agreement.

The relevant conditions of repayment of the restructured loan under the said agreement as contained in clause-2 read as under:-

'2.Repayment:

The Borrower shall repay the Restructured Loans and all other charges accrued under this agreement in the manner as more particularly described in Schedule-C to this agreement. If the Borrower fails to repay the Restructured Loans as per terms specified in schedule C or availed restructured loan by fraud, misrepresentation, suppression of material facts or the restructured loan utilized for the purpose other than for which it was sanctioned or breach of any of the terms and conditions of this agreement and Debtor-Creditor agreement dated 28.03.2013 or for any other reason which the bank consider as a default caused by the Borrower, the concession given by bank shall stand cancelled and the Borrower and Guarantors agrees that notwithstanding anything herein contained, the entire Facility stated in Schedule A with all outstanding dues along with further interest shall become payable immediately.'

There is a waiver clause in the said agreement which clearly defines the rights and obligation of the parties namely the bank, the borrowers/guarantor under the financial documents executed for the facilities. The said clause is quoted as under:-

'No waiver of any right/obligation:

The Borrower and Guarantors agrees that the restructuring of the loan by the bank do not constitute any waiver of right vested on the bank or obligation the Borrower/Guarantors under the Financial Documents executed for the Facility. For the avoidance of doubt, it is hereby clarified that the bank do not hereby waive their right to recover the facility/ies as per the Financial Documents.'

(g) Thus, it is evident that by means of the re-structuring agreement, the bank had acceded to the request of the dealers/guarantor to proceed against the 'secured asset' leaving few of them as mentioned in Schedule-C of the said agreement.

(h) However, the repayment Schedule of the loan installment has been given under the said Schedule itself. In none of the paragraphs of the plaint, the plaintiffs/respondent nos.1 and 2 (herein) have pleaded that they had honoured the re-structuring agreement and paid the installment of the term loan existing, as per the revised Schedule provided in Schedule-C of the said agreement. Thus, from a careful reading of the loan agreement it cannot be said that bank had committed any fraud in proceeding with the immovable properties mortgaged with it, under the original loan agreement.

Sri Amrish Sahai learned counsel for the petitioner bank, at this stage, submits that the notice under Section 13 (2) dated 03.08.2015 was issued for the reason that the respondents/plaintiffs had failed to honuor the re-structuring agreement. Moreover, the respondents-plaintiffs had never approached the Debts Recovery Tribunal under section 17 of the SARFASI Act. A Civil Suit was not maintainable in view of the fact that the plaintiff/respondent did not avail the statutory remedy. Learned counsel for the respondents/plaintiffs admits that they have not approached the Debts Recovery Tribunal rather rushed to the civil court.

The Civil Court ignoring all the above noted facts proceeded to examine the issue of its jurisdiction. However, while proceeding to answer the said issue, it had diverted itself to the merits of the claim of the plaintiffs and had illegally observed as under:-

'However, it is needless to mention that the approach so adopted by the 'secured creditor' has to be 'just, fair and reasonable and cannot be arbitrary, whimsical and fanciful. The sole objective of taking Prime and Collateral Securities against the loan granted by the creditor is to ensure the recovery of the loan from these Prime and Collateral Securities in the event, debtor fails to repay the said loan. Having said that it is equally the most considered opinion of this Court that a Prime and Collateral Security of one debtor should also be refrained from being used to recovery the loan of another debtor, especially when the secured creditor has before his disposal the Prime and Collateral Security of the other debtor as well. If, on the other hand, the Prime and Collateral Security of one debtor are used to recovery the loan of another debtor, then the question that will arise here is how in the world will the secured debtor recover the loan of the former.'

While addressing the issue of jurisdiction, it has issued direction to the bank not to proceed against the prime and collateral securities of the plaintiffs in recovery of the loan and to proceed only against the prime and collateral securities of the borrower.

From a reading of the judgment of the Civil Court, it appears that it had proceeded to decide the question of injunction in the Civil Suit rather than a

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ddressing itself on the question of its limited jurisdiction. No finding has been recorded regarding the alleged fraud pleaded by the plaintiffs rather it has assumed that the bank has committed fraud in not honoring the re-structuring agreement and proceed to recover the loan by utilizing the prime and collateral securities of the plaintiffs. It is settled law that the fraud is not only to be pleaded but is also to be proved by material evidence. A party pleading fraud has to come out in the Court with clean hands. Before proceeding to entertain the suit, it was incumbent upon the trial court to address itself on the plea of fraud taken by the plaintiffs and record a specific finding. The trial court instead of doing so, has misdirected itself in issuing further directions to the bank in the following words:- 'However, defendant no.1 and 2 are directed to exhaust and utilize the Prime and Collateral Securitite of plaintiffs in the recovery of the loan of plaintiffs only, whereas, the Prime and Collateral Securities of defendant no.4 should only be used and exhausted to recover the debt of the defendant no.4. If this approach is adopted by defendant no.1 and 2 while taking a recourse to Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act' 2002, plaintiffs have admitted in the Court that they have no objection against the said action of the defendant no.1 and 2'. It has further given a warning to the defendant bank in the following words:- 'In the event defendant no.1 and 2 Grameen Bank of Aryavrat fail to comply with the directions of this Court herein above, then this Court shall be compelled to issue an order of injunction in favour of the plaintiffs and against the defendant no.1 and 2, on the basis of the case law Mardia Chemicals Ltd. Vs. Union of India'.' The trial court in issuing such directions, has completely ignored and sidelined the dictum of the Apex Court to desist from interfering lightly in a matter under the SARFASI Act. The order dated 28.04.2017 passed by the trial court, therefore, cannot but be said to be passed on some extraneous consideration. The order dated 280.4.2017 passed by the Ist Additional Civil Judge (S.D.) Aligarh in Original Suit No.91 of 2017, therefore, is clearly based on surmises and conjectures. It is held illegal and being against the judicial norms, the statute and the principles laid down by the Apex Court and is hereby set aside. For the above discussion, it is held that the original suit no.91 of 2017 filed by the respondent no.1 and 2 before the Civil Judge (S.D.) Aligarh is expressly barred under Section 34 of the SARFASI Act 2002. The said suit cannot proceed and is liable to rejected under Order 7 Rule 11 of the Code of Civil Procedure. The application 26-C moved by the defendant bank in Original Suit no.91 of 2017 is, therefore, allowed. The plaint of Original Suit no.91 of 2017 (M/s. Maa Laxmi Ice & Cold Storage & another Vs. Gramin Bank of Aryavart & others) is hereby rejected, under Order 7 Rule 11 of the Code of Civil Procedure. The present petition is allowed. No order as to costs.
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