I agree with the submission made by Mr. Dharmadhikari that the examples given by the Apex Court are not exhaustive but are merely illustrative and that the right of a co-parcener or a member of joint family can be inquired into by the Civil Court only and not by any other tribunal. However, a perusal of the plaint would reveal that according to respondent Nos. 1 and 2 there was a partition between respondent No. 3 and his father long back and that respondent No. 3 purchased the plot along with the Cinema Theatre out of the property received by him in the family partition. It may be noted that after partition there is severance joint status and thereafter each member takes a separate property which becomes his self acquired property. According to the pleadings of respondent Nos. 1 and 2 themselves as there was partition between respondent No. 2 and his father whatever property was received by respondent No. 3 in partition became his self acquired property and, thereafter, there is no question of any joint family property.
13. It may be noted that it does not follow that after partition whatever property was purchased by respondent No. 3 would fall into common hatch potch by presuming that he purchased the property out of the property received by him in the family partition. That being the position, in the present case, respondent Nos. 1 and 2 cannot be said to be co-parceners along with respondent No. 3 so as to hold that for mortgaging the suit property their consent was necessary. Thus, in the instant case, Civil Court has no jurisdiction and it is only Debts Recovery Tribunal which has got jurisdiction.
Bombay High Court
Akola Urban Co-Operative Bank ... vs Anurag Anilkumar Rathi And Ors. on 30 March, 2005
Equivalent citations: 2005 (4) MhLj 97, 2006 66 SCL 255 Bom
Bench: K Rohee
1. Heard the learned counsel for the applicants, the learned counsel for respondent Nos. 1 and 2 and the learned counsel for respondent Nos. 3 and 4.
2. Admit. Taken up for final hearing with the consent of the parties. The learned counsel for the respondents waive notice.
3. The applicants, who are defendant Nos. 1 and 2 in Special Civil Suit No. 18/2004 instituted by respondent Nos. 1 and 2 before the Civil Judge, Senior Division, Wardha for declaration and permanent injunction, have challenged the order dated 5-4-2004 passed by the 2nd Joint Civil Judge, Senior Division, Wardha holding that Civil Court has jurisdiction to entertain and try the said suit and thereby answering preliminary issue in the affirmative.
4. According to the applicants they are the secured creditor and the debt obtained by respondent No. 3/defendant No. 3 was classified as non-performing asset. Hence on 15-3-2003 the applicants issued notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (hereinafter referred to as the "Act") to respondent No. 3 for discharging his liability. On 29-10-2003 the applicants issued reminder to respondent No. 3. Since respondent No. 3 failed to discharge his liability, the applicants proceeded under Section 13(4) of the said Act and took symbolic possession of "Vasant Theatre" situated on Nazul Plot No. 10/2 on 14-11-2003.
5. On 3-3-2004 respondent Nos. 1 and 2 instituted Special Civil Suit No. 18/2004 contending therein that they are the members of joint family comprising of their parents namely respondent No. 3 (father) and respondent No. 4 (mother). According to respondent Nos. 1 and 2 "Vasant Theatre" is a joint family property and they being co-parceners they have got l/4th undivided share in the said property. According to them, respondent No. 3 had no right to mortgage "Vasant Theatre" without their consent. Hence they sought declaration that "Vasant Theatre" is not liable for attachment for recovery of the dues outstanding against respondent No. 3 and for permanent injunction restraining the applicants from selling "Vasant Theatre" as the sale would not fetch market price.
6. The applicants resisted the suit by filing written statement. They denied all the contentions raised by respondent Nos. 1 and 2. The applicants contended that the Civil Court has no jurisdiction to entertain the suit in view of the provisions of Sections 32 and 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The jurisdiction of the Civil Court was taken up as a preliminary issue and was decided by the learned trial Judge as stated earlier. The said order is under challenge.
7. Mr. A. M. Ghare, the learned counsel for the applicants, submitted that Section 34 of the said Act provides that "no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine". Mr. Ghare submitted that Section 17(1) of the said Act gives a right to appeal to any person (including borrower), aggrieved by any of the measures referred to in section 13(4) taken by the secured creditor or his authorised officer and such person may make an application to the Debts Recovery Tribunal. Thus, according to the applicants, the Civil Court has no jurisdiction by virtue of Section 34 read with Section 17 of the said Act.
8. Mr. A.C. Dharmadhikari, the learned counsel for respondent Nos. 1 and 2 as well as Mr. Rahul Dharmadhikari, the learned counsel for respondent Nos. 3 to 4, on the other hand, submitted that respondent Nos. 1 and 2 are the members of the joint family and are the co-parceners. They have got civil right which can only be inquired into and decided by a Civil Court. Mr. Dharmadhikari submitted that right of a co-parcener can only be determined by Civil Court and not by a Tribunal like Debts Recovery Tribunal and that too in a summary manner. Mr. Dharmadhikari further submitted that the word "any person" mentioned in Section 17 of the Act is not defined in the said Act. If the scheme of the said Act is considered the word "any person" would mean apart from the borrower a guarantor and any person who has entered into a triparty agreement. Mr. Dharmadhikari submitted that in any case the word "any person" would not include a third party, who is not concerned with the loan transaction entered into by the borrower. Mr. Dharmadhikari submitted that respondent Nos. 1 and 2 have no knowledge of the transaction between respondent No. 3 and the applicants and they being co-parceners respondent No. 3 cannot enter into any agreement in respect of the suit property without their consent.
9. I am unable to agree with these submissions. It may be noted that the word "any person" in section 17 has been used in a wide sense and we cannot give restricted meaning to it as suggested by Mr. Dharmadhikari.
10. In Mardia Chemicals Ltd. etc. v. Union of India and Ors. etc., , the Apex Court has observed that:
"To a very limited extent jurisdiction of the Civil Court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the Civil Court in the cases of English mortgages."
11. On the basis of this observation, Mr. Dharmadhikari made next submission. He submitted that the examples given by the Apex Court are not exhaustive and the right of a co-parcener can be added to it so as to invoke the jurisdiction of the Civil Court.
12. I agree with the submission made by Mr. Dharmadhikari that the examples given by the Apex Court are not exhaustive but are merely illustrative and that the right of a co-parcener or a member of joint family can be inquired into by the Civil Court only and not by any other tribunal. However, a perusal of the plaint would reveal that according to respondent Nos. 1 and 2 there was a partition between respondent No. 3 and his father long back and that respondent No. 3 purchased the plot along with the Cinema Theatre out of the property received by him in the family partition. It may be noted that after partition there is severance joint status and thereafter each member takes a separate property which becomes his self acquired property. According to the pleadings of respondent Nos. 1 and 2 themselves as there was partition between respondent No. 2 and his father whatever property was received by respondent No. 3 in partition became his self acquired property and, thereafter, there is no question of any joint family property.
13. It may be noted that it does not follow that after partition whatever property was purchased by respondent No. 3 would fall into common hatch potch by presuming that he purchased the property out of the property received by him in the family partition. That being the position, in the present case, respondent Nos. 1 and 2 cannot be said to be co-parceners along with respondent No. 3 so as to hold that for mortgaging the suit property their consent was necessary. Thus, in the instant case, Civil Court has no jurisdiction and it is only Debts Recovery Tribunal which has got jurisdiction.
14. If respondent Nos. 1 and 2 feel that they are aggrieved by the steps taken by the applicants under Section 13(4) of the Act, they are to approach Debts Recovery Tribunal under Section 17 of the said Act. Thus, the impugned order is patently illegal and cannot be sustained. It is however made clear that respondent Nos. 1 and 2 are free to raise their contentions before Debts Recovery Tribunal and the Debts Recovery Tribunal would not be influenced by the observations made by this Court in the present judgment. Hence the order:
ORDER
The Civil Revision Application is allowed. The impugned order dated 5-4-2004 is set aside. The suit stands dismissed.
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