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THE HON’BLE SUPREME COURT OF INDIA

WP(CIVIL) NO. of 2013

CIVIL APPELLATE
JURISDICTION

UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA,
1950

Jagdish Singh.................................................................................................APPELLANT

Versus

Heeralal and others………………………………………………………..RESPONDENTS

IN THE MATTER UNDER

ON SUBMISSION BEFORE THE REGISTRY OF THE COURT ON 01-12-2013

MEMORIAL ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................................................1
INDEX OF AUTHORITIES.........................................................................................................................2
STATEMENT OF FACTS...........................................................................................................................3
SUMMARY OF ARGUMENTS..................................................................................................................4
PRAYER..................................................................................................................................................7

MEMORIAL ON BEHALF OF THE APPELLANT

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INDEX OF AUTHORITIES

Sr. Authorities Cited Page No.

No.
1. Mardia Chemicals and others v. Union of India and others (2004) 5

2. Central Bank of India v. State of Kerala and others (2009) 5

3. United Bank of India v. Satyavati Tondon and others (2010) 5
4. Authorised Officer, Indian Overseas Bank and others v. Ashok Saw 5
Mill (2009)

MEMORIAL ON BEHALF OF THE APPELLANT

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STATEMENT OF FACTS

I. Jagdish Singh herein was the auction purchaser, being the highest bidder for
Rs.18,01,000/-, in respect of the land admeasuring one acre in Khasra Nos.104/3 and
105/2, Patwari Halka No.4, Village Segaon, Anjad Road, Barwani, M.P., which was
brought to sale for recovery of loan amounts under the provisions of the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (for short the Securitisation Act). The auction was confirmed by the bank on
08.11.2005 on the appellants depositing Rs.2,90,250/- by 09.11.2005 and remaining
75% within 15 days. The appellant was not put in possession of the property in
question even though the auction was confirmed.
II. Jagdish Singh, the auction purchaser then came to know that Respondent Nos. 1 to 5
herein have filed a Civil Suit No.16A/07 in the Court of District Judge, Barwani
District for a declaration of title, partition, and permanent injunction against
Respondent Nos.7 to 9 and others in which the appellant and the bank were also made
parties.
III. Respondent Nos.7 to 9 herein, in the meanwhile, filed an application before the Debt
Recovery Tribunal (for short the DRT), Jabalpur under Section 17 of the
Securitisation Act challenging the sale notice dated 08.11.2005. The application was
opposed by the bank and the same was dismissed by the DRT vide its order dated
21.07.2006.
IV. Respondent Nos.6 and 7 (the Bank) filed a preliminary objection before the civil court
stating that in view of Section 13 read with Section 34 of the Securitisation Act, the
civil court has no jurisdiction to entertain the suit. Civil court, therefore, passed an
order on 18.01.2008 holding that the suit is not maintainable.
V. Aggrieved by the said order, Respondent Nos.1 to 5 herein filed Civil First Appeal
No.130/08 before the High Court of Madhya Pradesh at Indore. The High Court,
however, allowed the appeal.

MEMORIAL ON BEHALF OF THE APPELLANT

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SUMMARY OF ARGUMENTS

I. It is humbly submitted that the High Court has not properly appreciated the scope of
Section 34 of the Securitisation Act and has completely over-looked the principle laid
down by this Court in various Judgments regarding the scope of Section 9 CPC vis-à-
vis Section 34 of the Securitisation Act.
II. Reference can be made to the Judgments of this court in Mardia Chemicals and
others v. Union of India and others (2004)1, Central Bank of India v. State of
Kerala and others (2009)2, United Bank of India v. Satyavati Tondon and others
(2010)3 and Authorised Officer, Indian Overseas Bank and others v. Ashok Saw
Mill (2009) 4.
III. Section 34 of the Securitisation Act ousts the civil court jurisdiction. For easy
reference, we may extract Section 34 of the Securitisation Act. The scope of Section
34 came up for consideration before this Court in Mardia Chemicals Ltd. (supra) and
this court held as follow:
A full reading of Section 34 shows that the jurisdiction of the civil court is barred in
respect of matters which a Debts Recovery Tribunal or an Appellate Tribunal is
empowered to determine in respect of any action taken or to be taken in pursuance of
any power conferred under this Act. That is to say, the prohibition covers even
matters which can be taken cognizance of by the Debts Recovery Tribunal though no
measure in that direction has so far been taken under sub-section (4) of Section 13. It
is further to be noted that the bar of jurisdiction is in respect of a proceeding which
matter may be taken to the Tribunal. Therefore, any matter in respect of which an
action may be taken even later on, the civil court shall have no jurisdiction to entertain
any proceeding thereof. The bar of civil court thus applies to all such matters which
may be taken cognizance of by the Debts Recovery Tribunal, apart from those matters
in which measures have already been taken under sub-section (4) of Section 13.

1
4 SCC 311
2
4 SCC 94
3
8 SCC 110
4
8 SCC 366

MEMORIAL ON BEHALF OF THE APPELLANT

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IV. Section 13, as already indicated, deals with the enforcement of the security interest
without the intervention of the court or tribunal but in accordance with the provisions
of the Securitisation Act.
V. It is humbly submitted that the opening portion of Section 34 clearly states that no
civil court shall have jurisdiction to entertain any suit or proceeding in respect of any
matter which a DRT or an Appellate Tribunal is empowered by or under the
Securitisation Act to determine. The expression in respect of any matter referred to in
Section 34 would take in the measures provided under sub-section (4) of Section 13 of
the Securitisation Act. Consequently, if any aggrieved person has got any grievance
against any measures taken by the borrower under sub-section (4) of Section 13, the
remedy open to him is to approach the DRT or the Appellate Tribunal and not the
civil court. Civil Court in such circumstances has no jurisdiction to entertain any suit
or proceedings in respect of those matters which fall under sub-section (4) of Section
13 of the Securitisation Act because those matters fell within the jurisdiction of the
DRT and the Appellate Tribunal.
VI. Further, Section 35 says, the Securitisation Act overrides other laws, if they are
inconsistent with the provisions of that Act, which takes in Section 9 CPC as well.
VII. Also, it is humbly submitted that the application preferred by Respondent Nos.7 to 9
before the DRT, challenging the sale notice dated 08.11.2005, was also dismissed by
the DRT on 21.07.2006. Consequently, the High Court was not justified in interfering
with the order passed by the District Judge.
VIII. Hence, we are of the view that the civil court jurisdiction should be completely
barred, so far as the measure taken by a secured creditor under sub- section (4) of
Section 13 of the Securitisation Act, against which an aggrieved person has a right of
appeal before the DRT or the Appellate Tribunal to determine as to whether there has
been any illegality in the measures taken. The bank, in the instant case, has proceeded
only against secured assets of the borrowers on which no rights of Respondent Nos.6
to 8 have been crystalised, before creating security interest in respect of the secured
assets. In such circumstances, we are of the view that the High Court was in error in
holding that only civil court has jurisdiction to examine as to whether the measures
taken by the secured creditor under sub-section (4) of Section 13 of the Securitisation
Act were legal or not.
IX. Furthermore, it is humbly submitted that the appellant is a bona fide purchaser for
value and the sale was confirmed in his favour as early as on 08.11.2005.

MEMORIAL ON BEHALF OF THE APPELLANT

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X. Respondent Nos.1 to 5 filed Civil Suit No.16A/07 in the Court of the District Judge,
Barwani against the appellant, as well as the bank and Respondent Nos.6 to 9,
alleging that the family members of Respondent Nos.1 to 9 herein being
sons/grandsons of deceased Premji, constituted a HUF engaged in agriculture. But it
is humbly submitted that the said properties were purchased in the names of
Respondent Nos.7 to 9 out of the funds of HUF and house Nos.41/1, 42/3 and 42/2
were also purchased in the names of Respondent Nos.6 to 8 respectively, out of the
funds of HUF and, therefore, the properties of HUF.
XI. Also, the facts would clearly indicate that the properties referred to above were
purchased by Respondent Nos.6 to 8 in their individual names, long after the death of
Premji and that too by registered sale deeds and no claim was ever made at any stage
by any member of the HUF that the suit land was a HUF property and not the
individual property. Respondent Nos.7 to 9 had purchased those lands vide sale deed
dated 14.09.1999 and the 6th respondent had also purchased in his individual name
House No.42/1 on 31.03.1998 vide registered sale deed.
XII. Similarly, Respondent No.7 had also purchased House No.42/3 in his individual
name. No claim, whatsoever, was made at any stage by any member of the family that
those properties and buildings were HUF properties and not the individual properties
of Respondent Nos.6 to 8 herein.

MEMORIAL ON BEHALF OF THE APPELLANT

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PRAYER

In the light of the facts stated, issues raised, arguments advanced and authorities cited, it is
most humbly prayed by the Appellant that the Hon’ble Supreme Court of India may be
pleased to:

1. To Declare, that the High Court was in error in holding that only civil court has
jurisdiction to examine as to whether the measures taken by the secured creditor under
sub-section (4) of Section 13 of the Securitisation Act were legal or not.
2. To Declare, that the appellant is a bona fide purchaser for value and the sale was
confirmed in his favour.

For this act of Kindness and Justice, the Petitioner, as in duty bound, shall forever pray.

Respectfully Submitted By

(Counsel on Behalf of the Petitioner)

MEMORIAL ON BEHALF OF THE APPELLANT