TaxTMI 
TaxTMI 
2026 (6) TMI 1414
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....irst appeal has been filed against the order dated 14.08.2025 passed by learned Additional District Judge No.6, Jaipur Metropolitan-II (hereinafter referred to as learned 'trial Court') in Civil Suit No.55/2025, whereby, the plaint filed by the appellant for partition, declaration and permanent injunction has been rejected on an application filed on behalf of the defendant-respondent No.1 under Order VII Rule 11 read with Section 151 CPC, on the ground that it was barred by the law as per provisions of Sections 34, 35, 13(2), 13(4) and 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'Act of 2002'). 2. The plaintiff-appellant sought the following reliefs in the suit filed by him:- "20. यह कि अनुतोष निम्न प्रकार है :- 1. कि वह विवादित सम्पत्ति एसी 4 गायत्र....
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....;ख्या-1 नोटिस अन्तर्गत धारा-13(2) धारा-13(4) सरफेसी एक्ट के तहत ना तो सम्पत्ति का कब्जा ले, ना सम्पत्ति को निलाम करे, ना वादी के शांति पूर्वक उपयोग उपभोग में बाधा डाले एवं स्थिति यथावत रखे। 4. कि अन्य कोई अनुतोष जो माननीë....
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....er filing of the suit, the respondent No.1-Baid Finserv Ltd. (hereinafter referred to as respondent No.1) moved an application under Order VII Rule 11 read with Section 151 CPC and Sections 34, 35, 13(2), 13(4) and 17(1) of the Act of 2002 mentioning interalia therein that the suit has been filed by the plaintiff-appellant in collusion with the respondent Nos.2 to 8 just to defeat the recovery of Loan given by the respondent No.1. It was also mentioned in the said application that the deceased-Smt. Ratan Kanwar and the defendant-respondent Nos.2 and 3 (hereinafter referred to as the 'borrowers') borrowed a loan of Rs. 1,40,00,000/- on 05.01.2018 from the respondent No.1 by depositing title deeds of the disputed property and creating an equitable mortgage in favour of the respondent No.1. The borrowers failed to repay the loan, therefore, on 26.07.2019, the loan account was declared as Non-Performing Asset and a notice under Section 13(2) of the Act of 2002 dated 20.07.2024 for outstanding loan of Rs. 2,89,31,796/- was issued to the borrowers. Thereafter, the borrowers submitted the reply against the notice, which was disposed of by the respondent No.1 on 10.08.2024 and init....
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....t No.1) have their vested rights in the disputed property. Learned Senior Counsel further submits that on 01.10.1979, the property was orally partitioned and the said partition was reduced into writing on 24.11.1979. Thereafter, the plaintiff-appellant and respondents were put in possession of their respective shares and are residing in their respective portions with separate electricity and water connections. Therefore, the borrowers including the co-borrowers had no right to create equitable mortgage of the disputed property. Learned Senior Counsel further argues that the plaintiff-appellant is entitled to get the property partitioned by bounds and the relief with regard to partition of the property can be granted only by Civil Court. Hence, the suit filed by the plaintiff-appellant cannot be said to be barred by law. It has also been argued that the property was not under the sole ownership of Smt. Ratan Kanwar and thereby, creating an equitable mortgage of the property is detrimental to the legal rights of the plaintiff-appellant, therefore, the plaintiff-appellant is entitled to get the equitable mortgage of the property be declared as null and void. 7. Learned Senior Couns....
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....nwar along with her son and daughter-in-law i.e. respondent Nos.2 and 3 borrowed a loan from the respondent No.1 by creating an equitable mortgage by depositing title deeds of the disputed property. The respondent Nos.2 and 3 have never challenged the ownership of Smt. Ratan Kanwar in the disputed property rather stand as co-borrowers. The suit was filed when the borrowers failed to repay the loan and a notice under Section 13(2) of the Act of 2002 was issued to the borrowers. Learned counsel for respondent No.1 has submitted that the suit is barred by law as per the judgment passed by the Hon'ble Apex Court in the case of Jagdish Singh (supra), whereas, it has been contended on behalf of the plaintiff-appellant that at the stage of deciding the application filed under Order VII Rule 11 of CPC, only the contents of the plaint are to be considered and the reliefs claimed in the said suit, can only be granted by the Civil Court. Therefore, the suit is not barred by law as Debt Recovery Tribunal has no power to grant reliefs as claimed in the suit. This Court in the case of Vijay Singh Vs. Buddha reported in 2012 SCC Online Raj 3869 has laid down the principles to be considered wh....
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....ot as it ought to be. (iv) The exclusion of jurisdiction of a civil court cannot be lightly inferred and the jurisdiction of the civil court cannot be ousted until the exclusion is clearly established. Under Section 9 of the CPC, a civil court can entertain a suit of a civil nature except a suit of which cognizance is either expressly or impliedly barred. A statute ousting the jurisdiction of the civil court must be strictly construed. (v) Apart from averments made in the plaint, documents filed by the plaintiff alongwith the plaint can also be looked into. Documents filed by the defendant, which are undisputed or cannot be disputed can also be looked into to decide an application filed under Order 7 Rule 11 CPC." 11. Thus, while deciding the application under Order VII Rule 11 of CPC, Court has to consider not only the averments made in the plaint but also, to see whether a real cause of action has been set out in the plaint or something illusory has been stated to get out of, Order VII Rule 11 of CPC. The Court can also take into consideration the facts which are undisputed. 12. Learned Senior Counsel for the plaintiff-appellant while placing reliance upon....
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....one-third share was inherited by the plaintiff. However, Sumer Chand Jain without any partition amongst the heirs divided the land into several plots and sold them off illegally to different persons. One such plot was sold to Defendant 3 (Parmeshwar Das Prajapati) vide registered sale deed dated 3-7-2008 who in turn, mortgaged the same with Central Bank of India (Defendant 1) for the purpose of obtaining loan." 14. Learned Senior Counsel submits that in the case of Prabha Jain (supra), the sale deed was also challenged, whereas, in the case in hand, the registered sale deed has not been challenged. 15. As per learned Senior Counsel for the respondent No.1, the Hon'ble Apex Court in the case of Prabha Jain (supra) has clearly observed that only the Civil Court has jurisdiction to grant the relief of partition, however, in the present case, as per the averments made in the plaint, the suit property has already been partitioned amongst the plaintiff-appellant and the respondents except respondent No.1 having possession of their specific shares in the said property, as per the partition taken place in 1979, which was reduced into writing and was acted upon by the parties. ....
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....ed creditor on the secured assets and when the secured creditor proposes to proceed against the secured assets, sub-section (4) of Section 13 envisages various measures to secure the borrower's debt. One of the measures provided by the statute is to take possession of secured assets of the borrowers, including the right to transfer by way of lease, assignment or realizing the secured assets. Any person aggrieved by any of the "measures" referred to in sub-section (4) of Section 13 has got a statutory right of appeal to the DRT under Section 17. The opening portion of Section 34 clearly states that no civil court shall have jurisdiction to entertain any suit or proceeding "in respect of any matter" which a DRT or an Appellate Tribunal is empowered by or under the Securitisation Act to determine. The expression 'in respect of any matter' referred to in Section 34 would take in the "measures" provided under sub-section (4) of Section 13 of the Securitisation Act. Consequently if any aggrieved person has got any grievance against any "measures" taken by the borrower under sub-section (4) of Section 13, the remedy open to him is to approach the DRT or the Appellate Tribunal and not the ....