Banking & Finance - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, s.34 - Suit of dispossession - Decreed - Maintainability - Held, if remedy was made available statutorily, it should be exhausted first before the Civil Court of ordinary jurisdiction could be approached upon afore-emphasized grounds - Conclusion was that when the remedy was specifically made available and specific remedy of injunction was carved out of the ordinary jurisdiction of the Civil Court under the special statute, such statutory remedy had to be exhausted first by the parties in accordance with special statutory provisions and then only the aggrieved party might approach the Civil Court if there was violation of fundamental judicial procedure or if process of law was abused by the statutory forum/Tribunal or that it acted in violation of the provisions of the Statute - That being the position, if, in view of averment in the plaint, the plaintiffs had statutory remedy, the plaintiffs should first approach the statutory forum for an order of injunctive reliefs available under the Statute against the respondents including the Bank concerned - Hence, no interference was required in the impugned judgments and orders in the facts and circumstances of the case - Substantial question was answered accordingly.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Second Appeal No.159 of 2013
Smt. Savita Bhagwantrao Patil, Vs Shyam Pukhraj Asopa,
CORAM : A. P. BHANGALE, J.
DATE : APRIL 24, 2014.
1. This appeal is filed by the appellants/original
plaintiffs against Judgment and Order, dated 2.2.2013 passed
by the learned District Judge1,
Amravati in Regular Civil
Appeal No.135 of 2006 whereby the appeal was dismissed. The
said appeal arose from the Judgment and Order passed by the
learned 6th Joint Civil Judge (Jr.Dn.), Amravati in Regular Civil
Suit No.404 of 2005, whereby the suit was dismissed for want of
jurisdiction in view of the finding below preliminary issue under
Section 9A
of the Code of Civil Procedure.
2. The facts, briefly stated, are thus
Appellant No.1 is wife of one Bhagwantrao Patil, who
had purchased an open plot No.32 in the field bearing Survey
No.31/1A, plot admeasuring 1150 square feet of mouza
Tarkheda, Taluka and District Amravati. He had constructed a
house bearing Municipal House No.320 in Ward No.1 on the
said plot. Bhagwantrao Patil had abandoned appellant
No.1/plaintiff No.1 since July 1995; since then he is not heard
as alive. Appellant No.1 was left without any source of income.
Defendant No.1, as a friend of her husband, had assisted
plaintiff No.1/Savita. In December 1997, defendant No.1 sought
help from plaintiff No.1/Savita to purchase a Truck/Vehicle by
asking her to execute the nominal Sale deed in his favour so
that he can obtain a loan from the Bank. The plaintiffs averred
that the Sale Deed was nominal and void. The Bank (respondent
no.2) has already initiated proceedings for realisation of loan.
On 6.8.2003, notice of attachment was issued on the suit
property (vide Exh.28) issued under Section 13 (2) the
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred
to as “the SARFAESI Act”).
3. The suit was filed. The prayer in the suit was; (i) for
relief of declaration that the Sale Deed, dated 19.12.1997
executed by the plaintiff in favour of defendant no. 1 is void
and, (ii) to restrain the defendants from dispossessing the
plaintiffs on the basis of the said Sale Deed. Later relief (ii) was
in effect to restrain the Bank from realising it's nonperforming
assets under the SARFAESI Act. On 12.1.2006, a preliminary
issue was raised before the trial Court objecting jurisdiction of
the Court to entertain and try the suit.
4. The trial Court framed the preliminary issue and
heard the parties. The trial Court refused to entertain the suit
for seeking the relief (ii) of injunction for want of jurisdiction
but directed the parties to proceed further in view of prayer
clause (i) regarding declaration sought. As the Bank has already
initiated proceedings under the SARFAESI Act, the Civil Court
refused to entertain prayer for injunction by wellreasoned
order.
5. The first Appellate Court in Regular Civil Appeal No.
135 of 2006, decided on 2.2.2013 affirmed the order passed by
the trial Court.
6. The second appeal is admitted on the substantial
question of law stated as under :Whether
the Courts below were right in holding that
the suit claiming the consequential relief of injunction
restraining the respondents/defendants from
dispossessing the appellants / plaintiffs from the suit
property is barred by the provisions of the Section 34
of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security interest Act, 2002?
7. On behalf of the appellants, it is submitted that the
Civil Court could not have bifurcated the prayers so as to hold
the suit maintainable for the relief of declaration to determine
validity of the Sale Deed and to hold that the prayer for grant of
injunction to restrain the defendants by an injunction order was
not maintainable for want of jurisdiction.
8. On behalf of the respondents, it is urged that, by the
concurrent findings, the Courts below held that, in view of
appeal provided for under Section 17 of the SARFAESI Act, the
plaintiffs have statutory remedy to pray for injunction before the
special forum under the Act. Section 34 of the Act bars the Civil
Court from granting relief of injunction in respect of the cases
required to be heard under the Act.
9. Let us now consider the Legal position :
The object of SARFAESI Act is very good aiming at
reducing ‘Nonperforming
Asset”, the constitutional Courts had
to interpret the provisions of the Act dealing with many
complicated issues and keeping in view the interest of the
borrowers. Many issues under the provisions of the SARFAESI
Act are settled now. The two most important cases in that
process are Mardia Chemicals Ltd vs. Union of India, (2004)4
SCC 311 and Transcore v. Union of India reported in AIR
2007 SC 712 wherein the Supreme Court has settled the legal
position substantially with regard to the SARFAESI Act and
made the rigor of SARFAESI Act for the recovery of NPAs
effective in letter and spirit. When the Statute creating rights
and obligations constituted the forum to enforce them, such
special forums ordinarily are considered right over and above
the general law. Section 9 of the Code of Civil Procedure makes
the intention of the Legislature clear. Civil court does have
plenary jurisdiction to try all civil suits, unless barred expressly
or by necessary implication. The maxim “Ubi jus ibi remedium”
i.e. wherever there is right there is remedy denotes plenary
jurisdiction of the Civil Court to decide about its own
jurisdiction on the basis of the averments in the plaint. Ouster of
the jurisdiction is not to be readily inferred. But, at the same
time, jurisdiction cannot be conferred where there is none.
Neither parties can confer jurisdiction by consent because if the
court decides without jurisdiction, the decree would be nullity
ab initio. When the special Statute has provided the adequate
or sufficient alternative efficacious remedy, jurisdiction of the
Civil Court is excluded expressly or by necessary implication.
Section 34 of the SURFAESI Act mentions expressly that the
Civil Court has no jurisdiction to entertain the Civil Suit in
relation to the matter required to be determined by the Debt
recovery Tribunal or the Appellate Tribunal. The Civil Court
cannot grant injunction against an action under the SURFAESI
Act or its Rules. Section 35 mentions the nonobstante
clause
which has overriding effect. The crux of the question is as to
which of the rights or obligations are sought to be enforced. If
remedy is available to get the right or obligation adjudicated
under the special Act, the suit would not be entertained by the
Civil Court as it would not lie in the Civil Court. Plenary
jurisdiction of the Civil Court under general law could be
resorted to when the statutory Authorities/Forum/Tribunal have
acted without jurisdiction or when fundamental principles of the
judicial procedure was not complied with.
10. A Constitution Bench of the Hon'ble Supreme Court in
the case of Firm of Illury Subbayya Chetty and Sons ..vs..
State of Andhra Pradesh, reported at AIR 1964 SC 322, placing
reliance upon the judgments in the cases of the Privy Council
Secretary of State ..vs.. Mask and Co., reported at AIR 1940
Privy Council 105 and Raleigh Investment Co. Ltd. ..vs.. The
Governor General in Council, reported AIR 1947 PC 78, held
as under :
"...................there is a general presumption that
there must be a remedy in the ordinary civil court to
a citizen claiming that an amount had been
recovered from him illegally and that such a remedy
can be held to be barred only on very clear and
unmistakable indication to the contrary. The
exclusion of the jurisdiction of a civil court to
entertain civil cause will not be assumed unless the
relevant Statute contains an express provision to
that effect or leads to a necessary and inevitable
implication of that nature.............."
11. The Constitution Bench of the Hon'ble Supreme Court
in the case of Ram Swarup and Ors. v. Shikar Chand and
Another., reported at AIR 1966 SC 893, held that the
jurisdiction of the Civil Courts to deal with civil causes can be
excluded by the Legislature by Special Act which may deal with
special subject matters,
but the statutory provision must
expressly provide for such exclusion or must necessarily and
impliedly lead to that inference. However, the said bar would
not be relevant if the plea raised before the Civil Court goes to
the root of the matter and would, if upheld, lead to the
conclusion that the impugned order is a nullity.
12. The Constitution Bench of the Hon'ble Supreme Court
in the case of Dhulabhai and Anr. ..vs.. State of Madhya
Pradesh and Anr., reported at AIR 1969 SC 78, held that
exclusion of jurisdiction of the Civil Court by express provision
may not be a complete bar to entertain a suit if party satisfies
the Civil Court that the Statutory Tribunal has not acted in
conformity with the fundamental principles of judicial
procedure. More so, the Statutory Tribunal must be competent
to provide all the remedies normally associated with the actions'
in Civil Courts, which are either prescribed by the said Statute
or not. More so, the exclusion of jurisdiction of the Civil Court is
not readily to be inferred unless the aforesaid conditions are
fulfilled. In the case of Dhulabhai and Anr. (cited supra),
Hidayatullah, C.J., speaking for the Court on an analysis of the
various decisions cited before the Court expressing diverse
views, laid down as many as seven principles regarding
exclusion of jurisdiction of Civil Court, out of which at least two
principles being germane to the controversy involved in this
petition are excerpted below :
"(a) Where the statute gives a finality to the orders of
the special Tribunal the civil court's Jurisdiction must
be held to be excluded if there is adequate remedy to
do what the civil courts would normally do in a suit.
Such provision, however, does not exclude those cases
where the provisions of the particular Act have not
been complied with or the statutory Tribunal has not
acted In conformity with the fundamental principles
of judicial procedure.
(b) Where there is an express bar of the jurisdiction
of the Court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court."
13. In the case of Sardara Singh (dead) by LRs and
another ..vs.. Sardara Singh (dead) and others reported at
(1990) 4 SCC 90, the Hon'ble Supreme Court has held that Civil
Court's jurisdiction is available wherever action is taken without
jurisdiction under any Statute.
14. In the case of D.R.Chawla and others ..vs.. Municipal
Corporation of Delhi reported at (1993) 3 SCC 162, the
Supreme Court has held that where statutory enactments only
create rights or liabilities without providing forums for
remedies, any person having a grievance that he had been
wronged or his right is being affected, can approach the
ordinary Civil Court, but in case a Special Forum is provided for
enforcement of such right or for protection or enforcement of a
liability without any authority in law, the ouster of the Civil
Court's jurisdiction can be upheld on the finding that the rights
and liabilities in question have been created by the Act without
touching the existing Common Law rights and the remedy
provided therein is adequate and complete. But where adequate
redressal machinery is not provided under the Statutory Forum,
the Civil Court can still examine the correctness of the order
passed under the Statute.
15. In the case of Pavitter Singh and others ..vs..
Niranjan Lal Malhotra reported at JT 2001(8) SC 641, the Apex
Court has held that Section 46 of the Administration of Evacuee
Property Act, 1950 bars the jurisdiction of Civil Court in certain
cases. The Court has held that, in such an eventuality, the Civil
Court cannot entertain and try a suit as its jurisdiction has
expressly been barred and the only remedy in such cases, if any
person is aggrieved by the order passed under the Act in respect
of those evicted, is to resort to writ jurisdiction of the Writ
Court.
16. The Hon'ble Supreme Court, while dealing with the
provisions of The Motor Vehicles Act, 1939, in the cases of Shri
Chand ..vs.. Government of U.P. and Ors. reported in AIR
1986 SC 242, and Anwar ..vs.. First Addl. District Judge,
Bulandshahr and Ors., reported in AIR 1986 SC 1785, has
observed that, in most of the matters pertaining to the Motor
Vehicles Act, the jurisdiction of the Civil Court is impliedly
barred as the matter can be adjudicated upon by the State
Transport Appellate Tribunal only.
17. In the case of Sankaranarayanan Potti (dead) by LRs
..vs.. K. Sreedevi and Ors., reported at (1998) 3 SCC 751, the
Hon'ble Supreme Court has observed as under :
"It is obvious that in all types of civil disputes, civil
courts have inherent jurisdiction as per Section 9 of
the Code of Civil Procedure unless a part of that
jurisdiction is carved out from such jurisdiction,
expressly or by necessary implication, by any statutory
provision and conferred on any other Tribunal or
authority."
18. Similar view has been reiterated in the case of Shri
Panch Nagar Parakh, Mandsaur ..vs.. Purushottam Das,
reported in AIR 1999 SC 3071.
19. In the case of P. A. Ahammed Ibrahim ..vs.. Food
Corporation of India reported in AIR 1999 SC 3033, the
Hon'ble Supreme Court has held that the applications under the
provisions of various Statutes cannot be treated as suits or
claims unless such possibility is specifically provided for under
those particular statutes.
20. In the case of Bhanu Construction Co.(P.) Ltd. ..vs..
Andhra Bank, Hyderabad reported at AIR 2001 SC 477, the
Hon'ble Supreme Court has considered the provisions of
Recovery of Debts Due to Banks and Financial Institutions Act,
1993 and held that, after commencement of the provisions of
the said Act ever since it came into force, the suit could not be
instituted as conferring the jurisdiction upon the Tribunal under
the Act would take away the jurisdiction of the Civil Court.
21. In the case of Vannattankandy Ibrayi ..vs..
Kunhabdulla Hajee reported in (2001) 1 SCC 564, the Hon'ble
Supreme Court has considered the provisions of the Kerala
Building and Lease Control Act, 1965, which barred the
jurisdiction of the Civil Court for recovery of premises on
various grounds by the landlord before the Authority prescribed
under the Act and that the suit was not maintainable. The Court
held that where the building stood washed off because of
natural calamity; possession of the remaining land may be
recovered before the Civil Court. The Court held that under
such circumstances, the Civil Court may have jurisdiction, but
had the building been there, its jurisdiction was barred by
Section 9 of the Code because it ceased to be a building and
remained land and in such a situation, only the Civil Court was
competent to entertain and try the suit.
22. In the case of Shri Ram and Anr. ..vs.. First Addl.
District Judge and Ors. reported in AIR 2001 SC 1250, the
Apex Court has held that, in tenancy matters, generally revenue
Court has the jurisdiction, but in case a suit is filed for
cancellation of a void document, Section 9 of the Code does not
impliedly bar such a suit because the document has been
obtained by fraud or impersonation, as in such a case mere
declaration of title is required and the document, being void, is
merely to be ignored for giving relief for declaration and
possession.
23. In the case of Ghulam Qadir ..vs.. Special Tribunal
and others. reported in (2002) 1 SCC 33, the Hon'ble Supreme
Court has held that in
case the title is to be established, the
remedy of Civil Court is available and in such case, Section 9 of
the Code would not bar the Civil Suit and would ask the
Authority only to avail the remedy under the provisions of J & K
State Evacuees (Administration of Property) Act, 1949.
24. In the case of M/s. Pearlite Liners Pvt. Ltd. ..vs..
Manorma Sirsi reported in 2004 (1) AWC 764 (SC), the Apex
Court has held that, as contract of service (Private) cannot be
enforced in Court, the suit for declaration/permanent injunction
that termination was bad, would not be entertained.
25. A party is bound either by provisions of the
Constitution, statutory provisions or any rule or under the terms
of the contract which is not against the public policy. In case,
parties under their own agreement expressly agree that their
dispute shall be tried by only one of several forums available to
them, then the party can only file the suit in that Court alone to
which they had agreed vide Shriram City Union Finance
Corporation Ltd. ..vs.. Rama Mishra reported in AIR 2002 SC
2402.
26. In the case of Abdul Waheed Khan ..vs.. v. Bhawani
and Ors. reported in AIR 1966 SC 1718, the Apex Court has
held that a statute ousting the jurisdiction of a Civil Court must
be strictly construed. In fact, it is the pith and substance of the
plaint which is to be seen to determine : whether the suit is
maintainable in a Civil Court or before other competent
Authority, as the language might be used in such a way that it
may oust the jurisdiction of a particular Court. The form of
action in relation to void document or instrument regarding
agricultural land depends on the real cause of action with
reference to the facts averred.
27. In the case of Smt. Bismillah ..vs.. Janeshwar
Prasad and Ors. reported in AIR 1990 SC 540, the Hon'ble
Supreme Court has observed as under:
"It is true that the question of jurisdiction depends
upon the allegations in the plaint and not the merits
or the result of the suit. However, In order to
determine the premise, the nature of action, the
pleadings should be taken as a whole................The
real point is not the stray or loose explanations which
abound in inartistically drafted plaint but the real
substance of the case is gathered by construing the
pleadings as a whole."
28. In the case of Azhar Hasan and Ors. ..vs.. District
Judge. Saharanpur and Ors. reported in AIR 1998 SC 2960, the
Apex Court has held that the rights of tenancy are determinable
by the Revenue Authorities; in a case where the sale deed is
being questioned on the basis of fraud, the executor of the sale
deed must be necessarily impleaded and whether the matter can
be decided by the Revenue Court or the Civil Court, would
depend upon the pleadings taken in the plaint and the relief
sought in the suit.
29. In the case of Ramaswamy (dead) by LRs ..vs.. M.
Lobo (dead) by LRs., reported in (2001) 10 SCC 176, the
Hon'ble Apex Court rejected the contention that a suit in respect
of the agricultural land could be entertained only by the
Revenue Court and not by the Writ Court on the ground that the
use of the land stood changed as it was having the residential
buildings.
30. In the case of Shri Ram and Anr. ..vs.. Ist
Additional District Judge and Ors. reported in AIR 2001 SC
1250, while deciding a similar issue, the Hon'ble Supreme Court
has held that suit by a recorded tenure holder in possession for
cancellation of a sale deed being void would be before the Civil
Court.
31. A seven Judges' Bench of the Hon'ble Supreme Court
in the case of Kamla Mills Limited ..vs.. State of Bombay,
reported in AIR 1965 SC 1942 has considered the issue under
what circumstances a suit of civil nature can be held to be
barred by special statute. The Court has held that, for deciding
the issue, the Court is to be very conscious about the words used
in the statutory provisions on which the plea is rested, the
scheme of the relevant provision, their object and purpose. The
issue becomes more important when the bar is pleaded by
necessary implication and it becomes pertinent to inquire as to
whether remedy is normally associated with actions in Civil
Courts are prescribed by the said institute or not.
32. In the case of Dhruv Greenfield Limited ..vs..
Hukam Singh and Ors. reported in AIR 2002 SC 2841, the
Supreme Court has held that for
ousting the jurisdiction of the
Civil Court, the other statute should provide for an adequate
and satisfactory alternative remedy to a party that may be
aggrieved by the relevant order under its material provision.
33. In the case of Sahebgouda (Dead) by L.Rs. and
Ors. ..vs.. Ogeppa and Ors. reported in AIR 2003 SC 2743, the
Apex Court has held that to
prove that the Civil Court does not
have jurisdiction, a very heavy onus lies on the party seeking
ouster of Civil Court Jurisdiction as exclusion of jurisdiction is
not to be easily inferred.
34. In the case of Dwarka Prasad Agrawal ..vs.. Ramesh
Chandra Agrawal and Ors. reported in 2003 (3) SCCD 1210 :
AIR 2003 SC 2696, the Hon'ble Supreme Court has considered a
case as to whether the jurisdiction of the Civil Court stood
barred by the Companies Act. In that case, the owner of the
Printing Press leased out the premises to a company, of which
he himself had been one of the members. Another member of
the Company wanted to disposses the lessor of the Printing
Press. In such circumstances, eviction suit filed by the lessor
against the said other member of the Company was held to be
maintainable in view of the provisions of Section 6 of the
Specific Relief Act, 1963 in spite of the fact that the provisions
of Sections 9 and 10 of the Companies Act, 1956 barred the
jurisdiction of the Civil Court. The Court held that, in such an
eventuality, the statutory provisions ousting the jurisdiction of a
Civil Court requires very strict interpretation.
35. In the case of Chhedi Lal Gupta and Ors. ..vs..
Mohammad Sattar reported in AIR 1963 SC 448 a
suit under
Section 73 of the Trade Marks Act had been filed in the Civil
Court and the objection had been filed regarding jurisdiction,
which was dismissed by the Civil Court. However, in Writ
Petition, the High Court issued the writ of prohibition to the
learned Civil Court not to proceed with the trial of the suit and
issued further direction to return the plaint under Order VII,
Rule 10 of the Code of Civil Procedure to enable the plaintiff to
file the same in a Court/Authority of having the jurisdiction in
the matter.
36. In the case of Auto Engineering Works ..vs.. Bansal
Trading Company and Ors. reported in (2001) 10 SCC 630, the
Hon'ble Supreme Court has held that once the Civil Court comes
to the conclusion after having heard on the issue of jurisdiction
that it does not have the jurisdiction to entertain the suit, the
Court must return the plaint to present the same before the
Court of competent jurisdiction.
37. In the case of S. Govinda Menon ..vs.. Union of
India and Ors. reported in AIR 1967 SC 1274, the Hon'ble
Supreme Court has held that there is no prohibition for the Writ
Court to issue the writ of prohibition to the inferior Court if it
assumes a jurisdiction which it does not possess or this is to
prevent it from exceeding the limits of its jurisdiction, the
purpose of issuing such a writ is to keep the inferior
Court/Tribunal within their bounds of limited jurisdiction. Writ
may also be issued in case of departure from the principles of
natural justice.
38. In the case of M/s. East India Commercial Co. Ltd.,
Calcutta and Anr. ..vs.. Collector of Customs, Calcutta
reported in AIR 1962 SC 1893, the notice issued by the statutory
Authority had been challenged being without jurisdiction. In
the instant case, it does not involve the similar feature; hence,
none of the judgments relied upon by the learned Counsel for
the petitioner has any application in the instant case.
39. The Hon'ble Supreme Court in the case of Thirurnala
Tirupati Devasthanams and Anr. ..vs.. Thallappaka
Ananthacharyulu and Ors. reported in AIR 2003 SC 3209 has
considered the issue at length and also had taken into
consideration the earlier judgments, particularly, in the cases of
G.Veerappa Pillai ..vs.. Raman and Raman Ltd., reported in
AIR 1952 SC 192; T.C. Basappa ..vs.. T. Nagappa, reported in
AIR 1954 SC 440; Hari Vishnu Kamath ..vs.. Syed Ahmad
Ishaque, reported in AIR 1955 SC 233; Nanduri Yogananda
Lakshminarasimhachari ..vs.. Sri Agastheswaraswamvaru,
reported in AIR 1960 SC 622; Ujjam Bai ..vs.. State of U.P.,
reported in AIR 1962 SC 1621; Gulabchand Chhotalal
Parikh ..vs.. State of Gujarat reported in AIR 1965 SC 1153
and Naresh Shridhar Mirajkar ..vs.. State of Maharashtra,
reported in AIR 1967 SC 1, and has summarized the law as
under :
" On the basis of the authorities it is clear that the Supreme
Court and the High Courts have power to issue writs,
including a writ of prohibition. A writ of prohibition is
normally issued only when the inferior court or Tribunal
(a) proceeds to act without or in excess of jurisdiction; (b)
proceeds to act in violation of the rules of natural justice;
(c) proceeds to act under law which is itself ultra vires or
unconstitutional, or (d) proceeds to act. in contravention of
fundamental rights. The principles, which govern the
exercise of such power, must be strictly observed. A writ of
prohibition must be issued only in rarest of rare cases.
Judicial discipline of the highest order has to be exercised
whilst issuing such writs. It must be remembered that the
writ jurisdiction is original Jurisdiction distinct from
appellate Jurisdiction. An appeal cannot be allowed to be
disguised in the form of a writ. In other words, this power
cannot be allowed to be used "as a cloak of an appeal in
disguise". Lax use of such a power would impair the dignity
and integrity of the subordinate court and could also lead to
chaotic consequences. It would undermine the confidence of
the subordinate court. It was not even argued that there
was total lack of jurisdiction in the Civil Court. It could not
be dented that the Civil Court, before which the suit was
pending, had powers to decide on the maintainability of the
suit and to decide on questions of its jurisdiction. The Civil
Court had jurisdiction to decide whether the suit was barred
by Section 14 of the said Act or on the principles of res
judicata/estoppel. Thus unless there was some very cogent
or strong reason the High Court should not have prevented
the Court of competent Jurisdiction from deciding these
questions. In other words, the High Court should not usurp
the jurisdiction of the Civil Court to decide these question in
the case of Firm Seth Radha Kishan ..vs..
Administrator, Municipal Committee, Ludhiana,
reported at AIR 1963 SC 1547, the Honourable Apex Court
held that in a case where Jurisdiction of Civil Court has
expressly been barred, a suit should not be entertained even
If it is impliedly barred under Section 9 of the Code, but a
suit in the Civil Court will always lie to question the order
of a Tribunal created by a Statute, even if its order is,
expressly or by necessary implication, made final if the said
Tribunal abused its power or does not act under the Act but
in violation of Its provisions.(emphasis mine)”
40. The principle that emerges from the indepth
discussion is that, if remedy is made available statutorily, it
must be exhausted first before the Civil Court of ordinary
jurisdiction can be approached upon aforeemphasized
grounds.
Conclusion is that when the remedy is specifically made
available and specific remedy of injunction is carved out of the
ordinary jurisdiction of the Civil Court under the special statute,
such statutory remedy has to be exhausted first by the parties in
accordance with special statutory provisions and then only the
aggrieved party may approach the Civil Court if there was
violation of fundamental judicial procedure or if process of law
was abused by the statutory forum/Tribunal or that it acted in
violation of the provisions of the Statute. This being the
position, if, in view of averment in the plaint, the plaintiffs have
statutory remedy, the plaintiffs must first approach the statutory
forum for an order of injunctive reliefs available under the
Statute against the respondents including the Bank concerned.
Scheme and Object/purport of the SARFAESI Act leads us to the
above conclusion. Hence, no interference is required in the
impugned judgments and orders in the facts and circumstances
of the case. The substantial question is answered accordingly.
The second Appeal is dismissed with costs.
JUDGE
41. Now the learned Counsel for the appellants prays for
staying operation of this Judgment and Order. Although I am
not inclined for staying operation of the Judgment and Order,
since it is stated that there was interim relief pending the
appeal, operation of this Judgment and Order shall remain
stayed till expiry of four weeks from today.
JUDGE
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