Civil court shall not grant injunction in respect of any action taken or to be taken in pursuance of any order : high court of Calcutta
It is therefore clear from the language given in section 34 of the act that the civil court shall not grant injunction in respect of any action taken or to be taken in pursuance of any order conferred by or under the said act or 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, it is manifested 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 another, C.O. 1046 of 2015
The plaintiff/petitioner filed a suit 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 of her respective house.
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.
It is, therefore, laid down by the high court beyond cavil that any person including borrower feels aggrieved by any of the measures referred in sub-section 4 of section 13 taken by the secured creditor or the authorized officer has a right to prefer an appeal before the Debt Recovery Tribunal having jurisdiction within 45 days from the date of which such measures have been taken. Section 34 of the Act took away the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine. The emphasis is made by the court on the judgment of the Supreme Court in case of V. Noble Kr. (supra) and it is sought to be interpreted that if the secured creditor has not taken any step under Section 13 (4) or Section 14 of the Act, the embargo created under Section 34 of the Act shall not operate and, therefore, the suit is maintainable.
The court laid out 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 Court 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.
Judgement reviewed by Rani Banerjee