It is, clear from the language given in the section 34 of the act that the civil court shall not grant injunction in respect of any taken or to be taken in pursuance of any order conferred by or under the said act under the recovery of money due to banks and financial institutions act 1993. Without entering into the area of dispute whether the civil court is competent to entertain a suit of such nature to manifest from the aforesaid provision that the civil court shall not pass any injunction restraining the secured creditor from taking any action under the said act, is upheld by the high court of Calcutta, by the learned bench of The Honourable Justice Harish Tandon, in the case of Chanda Hazra V. Mani Prasad Hazra and Anr., C.O. 1046 of 2015.
The plaintiff/petitioner filed Title Suit No. 18910 of 2013 before the learned Civil Judge (Junior Division), 6th Court, Alipore praying for declaration of his title as joint owner in respect of the suit premises with further declaration that she has exclusive right, title and interest in respect of a ground floor. It would be apt to quote the reliefs claimed in the plaint which run thus:
- A) A decree for declaration that the plaintiff is the joint owner/co- sharer in respect of the suit land.
- B) A decree for declaration that the plaintiff is the sole and absolute owner in respect of the ground floor of the suit property;
- C) A decree for declaration that the suit property has been charged against the maintenance of the plaintiff which includes right to residence of the plaintiff in the suit property;
- D) A decree for declaration that plaintiff has got right of residence in respect of the suit property;
- E) A decree for permanent injunction restraining the defendants each of them and/or their men and agents, recovery agents and/or their transferees from selling, transferring, alienating, encumbering and/or from disturbing the peaceful possession and/or ousting the plaintiff from the suit property and/or from changing the nature and character of the suit property and/or from causing any physical violence upon the plaintiff in any manner whatsoever.
- F) Costs;
- G) Any other relief or reliefs to which the plaintiff is entitled to get
in law and in equity.”
It is stated in the plaint that the piece and parcel of land comprising in Municipality Holding No. P-23, Block- A, Sarada Park, Police Station- Maheshtala, Kolkata-700 141, was owned by the husband of the plaintiff/petitioner, the defendant no.1 in the suit, who was a government employee and constructed a building up to first floor. It is further averred that the said defendant no.1 did not have the sufficient funds to construct the ground floor and utilised the money which was her Stridhan for construction of the first floor. In Paragraph 9 of the plaint, it is stated that the plaintiff/petitioner was subjected to physical and mental tortures by the defendant no. 1 and several complaints were lodged before the authorities and a proceeding for maintenance and right of residence in the matrimonial home is also prayed for. It subsequently transpired that the said defendant no.1 took loan from the defendant no.2, the HDFC Bank Limited and failed to pay the loan amount with accrued interest which led the initiation of an action under SARFAESI Act. There is a clear averment in the plaint that the defendant no.2, the bank, is contemplating to take physical possession of the said property with an intend to dispossess the plaintiff/petitioner despite having exclusive right in the ground floor as well as an undivided share in the entire land.
The court considered that it would be apt to examine the facts involved in the above report to deduce the ratio laid down therein. In the said case, the first respondent stood as a guarantor of the borrower to a loan transaction and a notice under Section 13 (2) of the Act was issued by the secured creditor. On failure to pay the loan amount, an application under Section 14 was taken out before the Chief Judicial Magistrate requesting him to take possession of the secured asset and handed over the same to the secured creditor. The challenge is made to a legality of the proceeding and the first respondent approached the High Court by filing a writ petition. The Division Bench allowed the writ petition on the premise that the Bank cannot bypass the provision contained under Section 13 (4) of the Act and straight away invoked under Section 14 thereof. An argument was advanced before the High Court that before invoking the authority under Section 14, there should be an attempt to take possession of the secured assets and its only when the secured creditor faces resistance to such an attempt, the recourse under Section 14 of the Act can be resorted to.
Before the Apex Court, it was argued that there are two alternative procedures for taking possession one, under Section 13 (4) and other Section 14 thereof. The court laid out that two courses are opened, the election of one procedure can not be impinged. After noticing the scheme and the legislative intend underlining the promulgation of the said Act, it is held: “we do not see any warrant to record for conclusion that it is only after making an unsuccessful attempt to take possession of secured assets, a secured creditor can approach the Magistrate.” It is further held that if any measures are taken for taking the possession of the secured assets either under Section 13 (4) or Section 14 thereof, the remedy of an aggrieved person is under Section 17 thereof.
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Judgement reviewed by – Rani Banerjee