Dena Bankv Pravin

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Page 1 Wednesday, September 27, 2023

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2018 SCC OnLine Bom 2800
In the High Court of Bombay†

(BEFORE A.S. CHANDURKAR, J.)
Dena Bank, Through its Manager, Sitaburdi Branch

… Applicant;
Versus
Pravin Vitthalrao Dorkhande and Another … Non-
Applicants.
Civil Revision Application No. 80/2018
Decided on September 26, 2018
Advocates who appeared in this case:
Shri S.D. Khati, Advocate along with Shri S.N. Fuladi, Advocate for
Applicant;
Shri H.F. Karbhari, Advocate for non applicant no. 1;
Shri R. Umbarwel, Advocate for non applicant no. 2.
The Judgment of the Court was delivered by
A.S. CHANDURKAR, J.:— Admit.
2. Heard finally with the consent of the learned counsel for the
parties.
3. The applicant is the original defendant no. 2 in the suit that is
filed by the non applicant no. 1 for grant of temporary injunction
seeking to restrain the defendants from evicting the plaintiff from the
suit premises without following the due process of law. In that suit, the
defendant no. 2 filed an application under the provisions of Order VII
Rule 11(d) of the Civil Procedure Code, 1908, (for short, the Code)
seeking rejection of the plaint. By the impugned order dated
21.03.2018 that application has been rejected.
4. In the suit, it is case of the original plaintiff that he has entered
into a tenancy agreement in respect of flat no. C-702 on 10.10.2015
with the defendant no. 1. That agreement was for a period of four years
and the plaintiff was paying Rs. 8,000/- per month as rent. On
31.07.2017, the Additional Collector passed an order permitting the
defendant no. 2-present applicant to take vacant possession of the flat
in question. According to the plaintiff, as he is the tenant of defendant
no. 1, he is not liable to be evicted from the suit premises on the basis
of order dated 31.07.2017. On that basis, the aforesaid suit came to be
filed.
5. The defendant no. 2 which is a Bank and a creditor of the
defendant no. 1 filed an application under the provision of Order VII
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Rule 11 of the Code on the ground that in the light of provisions of

Section 17(4-A) read with 13(4) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (for short, the Act of 2002), the Civil Court had no
jurisdiction to entertain the suit. That application was opposed by the
original plaintiff. The trial Court by the impugned order held that on
perusal of the plaint, it could not be said that the suit was barred by
law. The application was accordingly rejected. Being aggrieved, the
defendant no. 2 has challenged the said order.
6. Shri S.D. Khati, learned counsel for the applicant submitted that
on a plain reading of the plaint, it was clear that the suit was not
maintainable and the plaint was liable to be rejected. In the plaint, it
was pleaded that there was a tenancy agreement in respect of flat no. C
-702 and with regard to the same flat, the Additional Collector had
passed an order on 31.07.2017 in proceedings under Section 13 of the
Act of 2002. The plaintiff was claiming right on the basis of the tenancy
agreement and in view of the provisions of Section 17(4-A) of the Act
of 2002, that right could be determined only in proceedings under
Section 17(1) of the Act of 2002. He also referred to the provisions of
Section 34 of the Act of 2002 to urge that the jurisdiction of the Civil
Court to entertain such claim was specifically barred. It was further
submitted that the decision relied upon by the trial Court in the case of
Vishal N. Kalsaria v. Bank of India, reported in (2016) 5 Mah LJ 321,
would not be applicable considering the fact that the provisions of
Section 17 have been subsequently amended. It was thus submitted
that the plaint was liable to be rejected.
7. Shri H.F. Karbhari, learned counsel for the non-applicant no. 1-
plaintiff supported the impugned order. According to him, the suit was
maintainable before the trial Court as the plaintiff was not a party to
the alleged transaction between defendant no. 1 and defendant no. 2.
Merely because the tenancy agreement was not registered, the same
would not be a reason for rejecting the plaint. The plaintiff was seeking
to protect his possession and his prayer was that he should not be
evicted without following the due process of law. The plaintiff was not
concerned with the dispute between defendant no. 1 and defendant no.
2. It was submitted that the trial Court rightly considered the law in
this regard and rejected the application. There was no jurisdictional
error committed by the trial Court.
8. I have heard learned counsel for the parties and I have perused
the plaint averments in the suit. As per the averments made in the
plaint, defendant no. 1 and the plaintiff entered into a tenancy
agreement in respect of flat No. C-702 on 10.10.2015. That agreement
was for a period of four years. However, according to the plaintiff on
31.07.2017, the Additional Collector passed an order permitting the
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defendant no. 2 to obtain possession of the suit premises. One of the

prayers made in the plaint is to restrain the defendant no. 2 from
evicting the plaintiff on the basis of that order dated 31.07.2017.
9. From the pleadings in the plaint, it is clear that the plaintiff claims
to be a tenant of the suit property and according to him, he has been
inducted by the defendant no. 1. The order dated 31.07.2017 has been
passed in favour of the defendant no. 2 which entitles it to recover
possession by having recourse to the provisions of the Act of 2002.
10. The provisions of Section 17 of the Act of 2002 have been
amended by Act No. 44 of 2015 and sub-section 4(A) has been added
to Section 17. As per this provision, any person including a borrower,
who is aggrieved by any of the measures referred to in Section 13(4) of
the Act of 2002 being taken by a secured creditor can approach the
Debts Recovery Tribunal and can raise grievance in that regard. A
person claiming tenancy or leasehold rights is also entitled to make
such application under Section 17 of the Act of 2002. As per the
provisions of Section 34 of the Act of 2002, the Civil Court has no
jurisdiction to entertain any suit or proceedings with regard to any
matter which the Debts Recovery Tribunal is empowered under the Act
of 2002 to adjudicate. Thus, on reading of the provisions of Section 17
(4-A) and Section 34 of the Act of 2002, it becomes clear that a person
claiming tenancy or leasehold rights with regard to a secured asset if
aggrieved by any measure taken under Section 13(4) of the Act of
2002 can approach the Debts Recovery Tribunal and seek relief. To that
extent, the jurisdiction of the Civil Court has been excluded. On a plain
reading of the plaint, it is obvious that the plaintiff seeks to restrain the
defendant no. 2 from evicting him on the basis of the order dated
31.07.2017 that is passed by the Additional Collector in exercise of the
powers under Section 13 of the Act of 2002 at the instance of the
defendant no. 2.
11. The decision in Vishal N. Kalasaria (supra) was rendered on
20.01.2016. As noted above, the provisions of Section 17(4-A) of the
Act of 2002 have been amended on 01.09.2016 and hence in view of
the amended provisions, the ratio of aforesaid decision cannot be made
applicable to the case in hand. The trial Court without considering the
provisions of Section 17(4-A) of the Act of 2002, rejected the
application below Exhibit 18 and thus committed jurisdictional error.
12. Hence for aforesaid reasons, the order passed below Exhibit 18
dated 21.03.2018 is liable to be quashed and set aside. Accordingly,
the application that was filed by defendant no. 2 below Exhibit 18 is
allowed in terms of its prayer. Plaint in R.C.S. No. 33/2018 is rejected
under the provisions of Order VII Rule 11(d) of the Code. It is open for
the plaintiff to take such other steps as are permissible in law to
ventilate his grievances.
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13. Civil Revision Application is allowed in the aforesaid terms

leaving the parties to bear their own costs.
———
† Nagpur Bench
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, September 27, 2023

2018 SCC OnLine Bom 2800

In the High Court of Bombay†

Dena Bank, Through its Manager, Sitaburdi Branch

Rule 11 of the Code on the ground that in the light of provisions of

defendant no. 2 to obtain possession of the suit premises. One of the

13. Civil Revision Application is allowed in the aforesaid terms

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