2015 (9) TMI 811

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....from the plaint filed in the said suit it is evident that the opposite party no. 1/plaintiff has filed the said suit challenging the notices issued by the petitioner no. 1 bank under sub-sections (2) and 4(a), Section 13 of the Securitisation and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the Act of 2002") in respect of the secured asset being the immovable property mortgaged by the opposite party no. 1/plaintiff to  secure the repayment of loan obtained from the defendant no. 1 bank. By the impugned order the learned Court below held that since the claim of the defendant no. 1 bank against the opposite party no. 1/plaintiff is Rs. 6,10,111/- which is less than the Rs. 10 lakhs, the suit is not barred under the Act of 2002 and the City Civil Court has the pecuniary jurisdiction to try the suit. It is the well settled principle of law that for the purpose of deciding an application under Order 7 Rule 11 of the Code the averments contained in the plaint filed in the suit should be treated as true and correct. In the instant case from the averments made in the plaint filed in the suit it is evident that the cause ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he impugned order passed by the learned court below rejecting the application of the defendant no. 1 petitioner under Order 7 Rule 11(d) of the Code is patently illegal. In support of his contention that the said suit filed by the opposite party no. 1/plaintiff before the learned court below is not maintainable in view of the provisions contained in sections 17 and 34 of the Act of 2002, Mr. Banerjee relied upon the decisions of the Supreme Court in the cases United Bank of India vs. Satyabati Tandon reported in (2010)8 SCC110 and Jagdish Singh v. Heeralal & Ors., reported in 2013 AIR SCW 6378 = (2014) 1 SCC 479. Since the in the said suit the opposite party no. 1 has challenged the notice under sub-section (2) and 4(a) Section 13 of the Act of 2002 the said provisions are extracted below. "13. Enforcement of security interest - (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to dis....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....y be made to the decision of the Supreme Court, in the case of Satyawati Tandon (supra), cited by Mr. Banerjee. Therefore, the expression "any person" referred to in Section 17 also includes the opposite party no. 1, the plaintiff in the said suit. Since Mr. Banerjee contended that the said suit filed by the opposite party no. 1/plaintiff is barred in view of Sections 34 and 35 of Act, said Sections are extracted hereinbelow: "34. Civil Court not to have jurisdiction No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). 35. The provisions of this Act to override other laws The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any suc....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... Asset Reconstruction Co. Ltd. reported in (2014) 6 SCC 1. In the said case one of the questions of law raised before the Supreme Court was whether the tenants of a secured asset can have remedies under the tenancy law of the State of Maharashtra, under Maharashtra Rent Control Act, 1999 to move the appropriate Court having jurisdiction and obtain the relief of injunction against the secured creditor from taking possession of the secured asset under sub-section 4 of section 13 of the Act of 2002 The Supreme Court answered the said question of law in the negative in view of Section 34 of the Act of 2002. In the impugned order the learned court below has held that since sub- section (4) of Section 1 of the RDB Act provides that the provisions of the said Act shall not apply where the amount of debt to this bank or financial institution is less than ten lakhs rupees, and in this case as the dues of the petitioner bank is less than rupees ten lakhs, the Debts Recovery Tribunals constituted under the said Act, cannot entertain an appeal under Section 17 of the 2002 Act against the steps taken by the petitioner bank against the opposite party no. 1/plaintiff under sub-section (4) of Sec....