IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.NO.13212/2019 (GM-CPC) BETWEEN:
Karur Vysya Bank No.6, Shree Vasavi Temple Road V.V. Puram Bengaluru – 560 003.
Represented by Chief Manager & Authorized Officer Mr. Ravichandran N, GPA Holder. …Petitioner (By Sri. Vignesh Shetty, Advocate) AND:
1. M/s Sri Srikanteshwara T.V. Centre No.4644 (New No.L-20) and 4644/1, N.R. Mohalla Mysuru. Represented by its Proprietor Mr. Umesha S S/o. R. Srikantasharma.
2. Sri Muneer Ahamed S/o. Late M.R. Peer Aged about 72 years 3. Smt. Noor Salam W/o. Muneer Ahamed 4. Mr. Ummar Farooq S/o. Muneer Ahamed 5. Aboobacker Sidiq S/o. Muneer Ahamed 6. Mr. Mohamed Haneef S/o. Muner Ahamed 7. Mr. Mohsin Ahmed S/o. Muneer Ahamed Defendant Nos.2 to 7 are residing at Door No.349 “C" Layout, 7th Cross Bannimantap Mysuru-15.
8. Tahsildar Mysuru Taluk Mysuru – 570 005.
9. Deputy Commissioner Mysuru District D.C. Office Building Mysuru – 570 005. …Respondents (By Sri. Markanda Shetty, Advocate for C/R-1) This Writ Petition is filed under Article 227 of the Constitution of India praying to exercise its power under Article 227 of the Constitution of India and issue direction under Article 226 of the Constitution of India calling for records of O.S. No.603/2018 on the file of the Hon’ble III Addl. I Civil Judge, Mysuru and proceedings leading to the issuance of impugned order dated 24.01.2019 and after examining the legality, correctness and / or validity of the impugned order dated 24.01.2019 passed in application filed by the petitioner under Order VII Rule 11 of CPC r/w Section 34 of SARFAESI Act, 2002 (Being Annexure-A hereto) quash and set aside the impugned order dated 24.01.2019 (Being Annexure-A hereto) and etc., This petition coming on for Orders, this day, the Court made the following:
O R D E R The petitioner-defendant No.7 filed the present writ petition against the order dated 24.01.2019 on I.A.No.4 in O.S.No.603/2018 rejecting the application filed by the defendant No.7 under Order VII Rule 11 of CPC read with Section 34 of the SARFAESI Act, 2002.
2. The first respondent who is the plaintiff before the trial Court filed suit for permanent injunction against defendant Nos.1 to 9 including the petitioner restraining from interfering with plaintiff’s peaceful possession from enjoying the suit schedule property contending that the plaintiff is in possession and enjoyment of the suit schedule property as a tenant under defendant Nos.1 to 6 as per the rent agreement dated 29.09.2016 entered into between the plaintiff and defendant Nos.1 to 6 and he has paid Rs.7,00,000/- advance and monthly rent of Rs.65,000/- commencing from 01.10.2016. The defendants unnecessarily interfering with the possession of the plaintiff, therefore, the suit is filed for the relief sought for.
3. The seventh defendant filed written statement denying the plaint averments and contended that he is a secured creditor of defendant Nos.1 to 6 and the suit filed by the plaintiff is not maintainable and is liable to be dismissed.
4. When the trial Court after hearing the parties has granted Temporary Injunction, at that stage, the application came to be filed by defendant No.7 to reject the plaint under Order VII Rule 11 of CPC read with Section 34 of SARFAESI Act, 2002 mainly contending that the defendant No.7 is a secured creditor of defendant Nos.1 to 6 who had availed financial assistance under the heads, M/s.Rural Artificial Craft Centre, for a sum of Rs.600 lakhs on various dates. The borrowers failed and neglected to comply with the notice of defendant No.7 and defendant No.7 took symbolic possession of the subject property on 09.08.2017. The very suit filed by the plaintiff is not maintainable in view of Section 34 of SARFASEI Act, 2002 and there is no cause of action. Therefore, sought for allowing the application.
5. The said application was resisted by the plaintiff by filing the objections and contended the very application filed by defendant No.7 is not maintainable in view of the dictum of the Hon’ble Supreme Court of India in Civil Appeal No.420/2016 (arising out of SLP (c) No.28300/2015) and further contended that the plaintiff is not aware of any transaction between the defendant Nos.1 to 7. The application under Section 34 SARFAESI Act, 2002 is only the borrowers and not the tenant. Therefore, sought for dismissal of the application.
6. The trial Court considering the applications and objections by the impugned order dated 24.01.2019 dismissed the application. Hence the present petition is filed.
7. I have heard the learned counsel for the parties.
8. Sri. Vignesh Shetty, learned counsel for the petitioner-Bank vehemently contended that the impugned order passed by the trial Court dismissing the application filed by the petitioner-defendant No.7 is erroneous and contrary to law. He would further contend that the trial Court failed to notice that no Civil Courts shall have jurisdiction to entertain any suit or proceedings in respect of any matter which Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the Act, to determine and no injunction shall be granted by the Court. He would further contend that the very suit filed by the plaintiff for permanent injunction is not maintainable and therefore, the trial Court ought to have allowed the application under Order VII Rule 11 of CPC read with Section 34 of SARFAESI Act, 2002, by rejecting the plaint. He would further contend that if any order passed by SARFAESI Act,2002, the plaintiff had an opportunity to file an appeal before the Appellate Authority under the SARFAESI Act, 2002 the very suit filed is not maintainable. Therefore, he sought to allow the writ petition.
9. Per contra, Sri.Markanda Shetty, learned counsel for the respondent No.1-caveator sought to justify the impugned order. He would further contend that the very application filed by the defendant No.7 invoking to reject the plaint under Order VII Rule 11 of CPC read with Section 34 of SARFAESI Act, 2002 is not maintainable. He would further contend that the plaint can be rejected only on the basis of the plaint averments as contemplated under Order VII Rule 11(a) or 11(d) of CPC. The trial Court is justified in dismissing the application. Therefore, he sought to dismiss the writ petition.
10. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed suit for permanent injunction against the defendants in respect of the suit schedule properties contending that he is a tenant under the defendant Nos.1 to 6 as per the rent agreement dated 29.09.2016 entered between the plaintiff and defendant Nos.1 to 6 in respect of the suit schedule properties. The defendant Nos.1 to 6 has not filed any written statement. The defendant No.7 alone has filed the written statement contending that he is the secured creditor of defendant Nos.1 to 6 who had availed financial assistance under the heads, M/s.Rural Artificial Craft Centre, for a sum of Rs.600 lakhs on various dates.
11. The trial Court considering the application and objections granted temporary injunction as prayed for resisting the defendants including the present petitioner from interfering with the suit schedule property of the plaintiff. Admittedly, the said order is passed by the trial Court granting injunction against the defendants, has reached finality. Instead of challenging the said order, petitioner-defendant No.7 filed the present application to reject the plaint invoking the provisions of Order VII Rule 11 of CPC read with Section 34 of the SARFAESI Act, 2002. The petitioner’s counsel is not in a position to assist the Court as to how an application can be filed for rejection of the plaint by invoking two provisions and under two separate Acts for a single prayer, is maintainable.
12. The trial Court considered the judgment of Hon’ble Supreme Court in the case of Vishal N Kalsaria V/s. Bank of India reported in 2016 SP 530 at paragraph-8 held as under:
“8. “Before we consider the submissions advanced by learned counsel appearing on behalf of the parties, it is essential to first appreciate the provisions of law in question”.
13. The trial Court after referring the judgment stated supra, has rejected the application. It is well settled principle that when the plaintiff invoking provisions of Order VII Rule 11 of CPC read with Section 34 of the SARFAESI Act, 2002, the plaint can be rejected only on the basis of the plaint averments to decide whether the application deserves to be rejected on the grounds raised therein but not either on objections or on written statement. My view is fortified by the dictum of the Hon’ble Apex Court in the case of Surjit Kaur Gill & Anr vs Adarsh Kaur Gill& Anr reported in 2014 16 SCC page-125, paragraph-10 has held as under:
“10. with respect to these submission, Mr. Diwan pointed out that in fact there is a clear writing of the respondent No.1 herein executed on 12.2.91 which clearly states, amongst others, in paragraph (d) that she will not claim any tenancy right or charge on the above referred property. In paragraph (b) of that writing she agreed to render the accounts with respect to the rental income received from 1.1.80 to 30.11.90. In paragraph (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estaste of Smt. Abnash Kaur. Mr. Diwan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did not happen. The respondent No.1 started construction on the particular property in her own right. This having happened in 1992, the original plaintiff was constrained to file the suit for the partition of the property belonging to Smt.Abnash Kaur. Smt. Abnash Kaur having made a Will about her property, the original plaintiff had to see to it as the administrator of the will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant Article for all these prayers, which provides for a period of 3 years when the right to sue first accrues. In the present case, it will be when the dispute arose because of the conduct of the respondent No.1 herein. The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr.
C.A. Sundaram submitted that the respondent No.1 disputed the writing dated 12.2.1991, and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order 7 rule 11, one has to look at the plaint and decide whether it deserved to be rejected for the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order of the Division Bench is set aside. The application made under Order 7 Rule 11 moved by the respondent No.1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.”
14. It is not the case of the petitioner that the plaint can be rejected by invoking Order VII Rule 11 of CPC read with Section 34 of the SARFAESI Act, 2002, based on the averments either in written statement or objections. In the absence any grounds raised from the averments made in the plaint, the application filed by the defendant No.7 under Order VII Rule 11 of CPC read with Section 34 of the SARFAESI Act, 2002 cannot be entertained.
15. In view of the aforesaid reasons, the impugned order passed by the trial Court in rejecting the application filed by the petitioner is just and proper. Petitioner has not made out any good ground to interfere with the same in exercise of power under Article 227 of Constitution of India.
Accordingly, writ petition is dismissed.
Since the main petition is dismissed on merits, question of office objection regarding maintainability does not arise.
Sd/- JUDGE KPS/SB