The appeal is admitted. At the request made by the learned advocates, the matter is taken up for final hearing today. 2. The present Appeal from Order has been filed by the appellant- original defendant being aggrieved with the order passed by the Chamber judge, City Civil Court, Ahmedabad, below Notice of Motion, Ex. 16 and 17, dated 7th July 2012, on the grounds stated in the Appeal from Order.
3. It is contended, inter alia, that the impugned order passed by the court below giving mandatory direction for handing over peaceful possession of the premises to the respondent is without jurisdiction. It is contended that the court below has erred in coming to the conclusion that the appellant-Bank had submitted to the jurisdiction of the court and has failed to appreciate the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘Securitisation Act’). It is contended that the appellant-bank was within its power to invoke the provisions of the Securitisation Act and proceed further to take possession of the premises in question. It is contended that the court below has committed an error in considering the evidence of the chairman of the society before the Chief Metropolitan Magistrate with regard to the loan taken on the basis of alleged forged certificate issued by the society. It is also contended that the question of jurisdiction is a mixed question of facts and law which can be considered at the final stage after appreciation of evidence and therefore the impugned order is erroneous. It is also contended that according to the provisions of the Benami Transaction Act, the plaintiff cannot be stated to be the owner of the flat and therefore the present Appeal from Order may be allowed.
4. An affidavit is also filed by the respondent to produce some of the documents.
5. Heard learned advocate Ms. Paurami Sheth for the appellant.
She has referred to the impugned order and also the documents. The first contention is raised by learned advocate Ms. Sheth that the court below has failed to appreciate the provisions of the Securitisation Act and failed to appreciate that the Civil Court will not have jurisdiction in view of the provisions of the Securitisation Act. She has also referred to the share certificate produced on record and submitted that it is the certificate issued by the society in the name of the borrower, son of the plaintiff, and the other documents including the documents produced at Annexure-I. It has been submitted that the premises/flat in question belong to the son and it was offered for the purpose of advances by depositing the title deeds like the share certificate. Learned advocate Ms. Sheth, therefore, submitted that such contentions have been raised as an after-thought and both the plaintiff and his son are hand in glove to avoid payment of the outstanding dues of the bank which has not been apprecaited by the court below. She has emphasised that the Civil Court had no jurisdiction to entertain such application and could not have passed any order in favour of the plaintiff who is not the owner of the flat, nor has he any locus standi. It was submitted that the appellant bank had proceeded to take possession of the flat in accordance with law and therefore such a mandatory order could not have been passed.
6. Learned advocate Ms. Sheth has also produced other papers with regard to the transactions like the irrevocable power-of-attorney, copy of the share certificate and also an extract from the record of Ahmedabad Municipal Corporation with regard to the payment of tax on the premises to support her submission. She has also referred to the resolution of the Anand Laxmi Co-operative Housing Society. She has therefore submitted that as there is sufficient evidence produced on record, the court below could not have entertained such Notice of Motion and in any case could not have made the mandatory order.
7. Learned advocate Shri Ahuja for the respondent borrower has submitted that as observed in the impugned order by the civil court, the son of the plaintiff had borrowed the money from the bank who has not been joined. He pointedly referred to the manner in which these provisions have been applied to support his submission with regard to the arbitrariness. It was submitted that the son of the plaintiff had taken the loan on the suit property by forging the documents and the bank, without verifying such documents from the Anand Laxmi Co-operative Housing Society, granted the loan and therefore as the premises belong to the plaintiff such provisions could not have been invoked. He submitted that in fact the plaintiff has filed a criminal complaint against the son of the plaintiff who is the borrower and also the bank officer and the matter is pending before the court. Learned advocate Shri Ahuja submitted that in these proceedings before the Metropolitan Magistrate, the Chairman of the Anand Laxmi Co-operative Housing Society has also stated before the court that the certificate on which the bank had given the loan is forged and the sale in the name of the society is also false and therefore the loan which has been granted to the son of the plaintiff without proper verification could not be recovered by invoking the Securitisation Act against the plaintiff.
8. Learned advocate Shri Ahuja submitted that the bank took the law into its hands, sealed the property in an arbitrary manner in spite of the injunction of the court and therefore the mandatory order was prayed. He submitted that such question of jurisdiction is raised at a later stage and therefore it is not permissible. He therefore submitted that as, contended by the appellant, the issue of jurisdiction is a mixed question of law and facts which could be decided on the basis of evidence at the trial. The equity suggests that the law could not have been enforced arbitrarily by taking the law into the hands which would cause prejudice to the respondent plaintiff. He therefore submitted that the possession of the property cannot be disturbed without following the due process of law as the lease has been pending. He therefore submitted that the order passed is just and proper.
9. In view of the rival submissions, it is required to be considered whether the impugned order can be said to be just and proper.
10. The facts as narrated and emerging from the record are that advances have been obtained by the son of the respondent original plaintiff from the appellant-bank and the contention is sought to be raised that the premises in question belongs to the respondent original plaintiff and not to son Manoj whose premises is in the Anand Laxmi Co-operative Housing Society. Though it is contended that the premises in question has been purchased by the respondent-plaintiff from his own resources in the name of the son Manoj and the name of Manoj in the record of the society was only in the fiduciary capacity are matters which require a closer scrutiny. If the premises was purchased by the respondent plaintiff from his resources, though in the name of son Manoj who is a borrower of the appellant-bank, then, it would be a benami transaction and the provisions of the Benami Act may be attracted. The fact remains that in the record of the society, in the share certificate and the ownership as the member is shown in the name of Manoj, son of the respondent plaintiff.
11. Another facet of the argument that it is the son who has played mischief for the purpose of borrowing the advances from the appellant-bank behind the back of the respondent plaintiff and the respondent plaintiff is not the borrower and therefore the premises occupied cannot be subject-matter of recovery under the Securitisation Act also cannot be accepted. When the premises in the record of the society is in the name of son and the share certificate is in the name of the son Manoj who is the borrower of the bank having deposited the document of title with the bank for the purpose of obtaining advances, such contentions which are sought to be raised now require a closer scrutiny.
12. In any view of the matter, as it appears, there was also an order passed in Misc. Civil Application No. 2726 of 2012 in Civil Application Application No. 7902 of 2012 in the present Appeal from Order, where the order was to deposit Rs. 10 lakhs. It appears that the amount has not been deposited and thereafter by filing Misc. Civil Application No. 3021 of 2012 in Misc. Civil Application No. 2726 of 2012 in Civil Application Application No. 7902 of 2012 in the present Appeal from Order, extension of the time was sought for depositing the amount which has also been granted.
13. Thus, on one hand after having accepted the proposal to deposit the amount of Rs. 10 lakhs so as to protect the possession of the respondent plaintiff in a proceedings under the Securitisation Act, the respondent plaintiff thereafter seems to have had an after- thought. Therefore, instead of depositing the amount, a total volte- face is made to contest on the principle and the contentions are raised that the respondent plaintiff is not the borrower at all and the premises could not be a matter of proceedings under the Securitisation Act for recovery of the dues of the appellant-bank. A reference is also made to the criminal proceedings. However, as stated above, one cannot run away from the fact that the premises were offered as security by the son of the respondent in whose name the premises was there in the record of the society. The share certificate is also in the name of the son of the respondent plaintiff and having deposited such document of title for the purpose of borrowing from the bank, the contentions about benami or fiduciary relation or forged document or mischief by the son of the respondent plaintiff cannot be readily accepted. Assuming that the son has played mischief, it is a matter between the respondent plaintiff and his son, but that would not preclude the appellant-bank from taking steps as required under the law.
14. The provisions of the Sec. 34 of the Securitisation Act clearly provide that it will have an overriding effect and the jurisdiction of the civil could would stand barred. Section 34 clearly provides that no Civil Court shall have the jurisdiction to entertain any suit or proceedings in respect of any matter where a Debt Recovery Tribunal or Appellate Tribunal is empowered. There was a contention specific raised by the bank that the only recourse available was by fining an appeal under sec. 17 of the Act and not the suit.
15. Therefore, considering the provision of the Securitisation Act and also the submissions made relying on the share certificate which is stated to be misused by the son or that it was forged or such other contention that though it was in the name of the son, in in fact it belonged to the respondent plaintiff cannot be accepted as discussed hereinabove. The court below has failed to appreciate the provisions of the Securitisation Act and the underlying object with which such an Act has been enacted.
16. A useful reference can be made to the judgment of the Hon’ble Apex Court in the case of ICICI Bank Limited v. Official Liquidator of Aps. Star Industries Ltd., reported in JT 2010 (10) SC 599 and also the judgment in the case of Mardia Chemicals v. Union of India, reported in (2004) 4 SCC 311. In another judgment of the Hon’ble Apex Court in the case of United Bank of India v. Satyawati Tondon & ors., reported in (2010) 8 SCC 110, the Hon’ble Apex Court has observed and quoted in para 50 as under:
“50. In Punjab National Bank v. O.C. Krishnan and others (2001) 6 SCC 569, this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed:
"5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short "the Act"). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum.
6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
17. Therefore, when the observations have been made that even in exercise of writ jurisdiction also the High Court ought to be slow, there is no reason to sustain the impugned order in the present Appeal from Order. The court below has misdirected by not appreciating the provisions of a special statute created with a specific object and also considering the facts about the criminal complaint filed by the respondent plaintiff and the certificate of the housing society. In fact, as stated, the respondent plaintiff has stated that it was in the name of the son Manoj purchased by him with his resources, meaning thereby he was claiming fiduciary relations etc., but again it would be a benami purchase which cannot be readily accepted. Such a contention could be raised as an after-thought to stall the proceedings which cannot be permitted.
18. In the circumstances, the present Appeal from Order deserves to be allowed and accordingly stands allowed. The order passed by the Chamber judge, City Civil Court, Ahmedabad, below Notice of Motion, Ex. 16 and 17, dated 7th July 2012, is hereby quashed and set aside.
19. In view of the order passed in the Appeal from Order, no order is required to be passed in the Civil Application and it accordingly stands disposed of.
(RAJESH H.SHUKLA, J.)
(hn)