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TruePrint™ source: Maharashtra Law Journal, © 2023 Journal Publications, Nagpur.
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252 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.
alleged misconduct and the same is left entirely to the management based on the
result of the disciplinary proceeding.
18. Rule is made partly absolute in the above terms.
Petition partly allowed.
SECURED LOAN : RECOVERY OF

(Dr. Smt. Shalini Phansalkar- Joshi. J.)
ALLAHABAD BANK, KOLKATTA Appellant.
vs.
HEMANTKUMAR s/o OMPRAK ASH MALPANI
and others Respondents.
(a) Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act (54 of 2002), SS. 34 and 13(2) Loan —
transaction between Bank and Directors of company on its behalf Recovery of —
debt —
Respondent Nos. 1 and 2 have resigned from post of Directors of company
and they intimated bank about it —
However there is no document showing that
bank has released respondents from their personal guarantees towards repayment
of loan availed by Company —
Hence, contention that since respondents have
resigned as Directors, there is no liability of repayment of loan, rejected.
There is not a single document produced on record by the respondents to
show that bank has accepted the fact of their resignation from the Company and
released them from their personal guarantees towards the repayment of financial
assistance availed by the Company. Therefore, merely because the bank has
received those letters, it cannot be accepted that the bank had released respondent
Nos. 1 and 2 from their liability as personal guarantors to the loan availed by the
Company. It was a unilateral act on the part of respondent No. 1 and 2 to resign
from the Company but by such unilateral act, unless it was accepted or acted
upon by the bank, respondent Nos. 1 and 2 cannot contend that as they have
resigned from the post of Directors, they should also be absolved from the
liability of dues which were outstanding against the Company. Their act of
resignation being unilateral, so far as their liability towards the repayment of
dues from the Company is concerned, as their guarantee was never released by
the bank, they continue to be liable to the bank for repayment of the amount
which was due to the bank. Hence, this contention about their resignation and
hence release from bank guarantee cannot be accepted. (Para 28)
(b) Civil Procedure Code, S. 9-A and Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act
(54 of 2002), SS. 34, 31, 17, 13(2) and 2(zf) Jurisdiction of Civil Court
Respondent Nos. 1 and 2 have resigned from post of Directors of company
— ——
Respondents have given their personal guarantee Also respondents have
created hypothecation charge on entire stock, book debts and other .assets of
—
company, collateral securities —
Contention of respondents that guarantees
executed by them are merely personal in nature and it does not fall under
“security interest”
jurisdiction to entertain dispute.
—
Contention is liable to be rejected Civil Court has no —
Civil Rev. Appln. No. 43 of 2016 decided on 20-7-2017. (Nagpur)
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2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 253
Question whether security interest is legally created or not, or whether it is

the notice issued by secured creditor or not, can be gone into under section 17 by
Debt Recovery Tribunal Only. Hence jurisdiction of Civil Court is barred under
section 34 of Act. 2010(4) Mh.L.J. 133, Rei. (Paras 29 to 31 and 34)
(c) Civil Procedure Code, O. 7, R. 11, S. 9- A and Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act
(54 of 2002), SS. 34 and 13(2) Recovery of loan by Bank— Jurisdiction of —
Civil Court —
Resignation of respondents as directors of company
Respondents are claiming declaration that they are discharged from their
—
liability as guarantors —
However they are also seeking relief of injunction
restraining petitioner- Bank from taking any action in pursuance of notice under
—
section 13(2) Civil Court is prohibited from granting any injunction in respect
of notice or future action to be taken under Act under section 34
—
barred in view of section 34 Plaint liable to be rejected. (Para 35)
Suit expressly —
(d) Maharashtra Court Fees Act (36 of 1959), Sch. 1, Art. 7 and S.
6(iv)(j) and Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act (54 of 2002), SS. 34, 13(2) Recovery —
suit —Respondent-plaintiffs are seeking relief of declaration and injunction for
restraining petitioner-Bank from recovering amount of ? 4,22,70,742/- Suit —
claim is susceptible to monetary evaluation —
It falls under ambit of Schedule 1,
Article 7 —
Valuation made under section 6(iv)(j) of Maharashtra Court Fees
Act is improper and illegal. 2008 MhLJ Online 25, Rei. (Paras 48 to 53)
(e) Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act (54 of 2002), Preamble Aim and —
object
of dues.
—
Act provides for various remedies to the secured creditor for recovery
Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act is a complete self-contained Code in itself, which provides
effective measures for the banks and financial institutions to recover their dues
without intervention of the Courts and adequate remedies are also provided in the
Act itself to the persons aggrieved by those measures. (Para 17)
For appellant : Masood Shareef
For respondent Nos. 1 and 2 : Shyam Dewani
For respondent Nos. 3 to 5 : R. H. Agrawal
List of cases referred :
1. Mardia Chemicals Limited vs. Union of India, (Paras 10, 14, 18,
2004(2) Mh.LJ. 1090 19, 21, 37)
2. Nahar Industrial Enterprises Limited vs. Hong Kong Shanghai (Paras 14,
Banking Corporation, (2009) 8 SCC 646 38)
3. State Bank of Patiala vs. Mukesh Jain and another,
2016(6) Mh.LJ. (S.C.) 895 = (2017) 1 SCC 53 (Paras 14, 24)
4. Punjab National Bank, Ballarpurvs. Shaikh Mumman Shaikh (Paras 14, 21,
Guljar, 2010(4) Mh.L.J.133 23, 32)
5. Jagdish Singh vs. Heeralal and others,
2014(3 ) Mh.LJ. (S.C.) 588 = AIR 2014 SC 371 (Para 1 9)
6. Bina Alhad Naik vs. Deu Keshav Naik and others,
2008(6) Mh.LJ. 815 (Para 41 )
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7. Om Plastic Industries, Dhule and others vs. Maharashtra State

Finance Corporation, Mumbai and others,
2001(1) Mh.L.J. 560 (Para 42)
8. Tara Devi vs. Sri Thakur Radha Krishna Maharaj, through
Sebaits Chandeshwar Prasad and Meshwar Prasad and
another, (1987) 4 SCC 69 (Para 43)
9. Eagle Soraj Townships Pvt. Ltd. and others vs. Eagle Agro-Farm
Pvt. Ltd., 2013(1) Mh.L.J. 439 (Para 44)
10. Gilda Finance and Investment Ltd. vs. Natenco WindPower Pvt.
Ltd., 2008 MhLJ Online 25 = 2009(2) Bom.C.R. 129
—
(Para 50)
JUDGMENT : This revision raises a very short point for consideration
as to maintainability of the suit in view of the bar created under section 34 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, (hereinafter referred to as “SARFAESI Act”).
2. By this revision the legality, validity and propriety of the order dated
4-5-2016 passed by Joint Civil Judge, Junior Division, Nagpur below Exh.20 in
Regular Civil Suit No. 449/2016 is challenged, as by the said order, the trial Court
has rejected the petitioner’s primary objection with regard to the jurisdiction of the
Civil Court in view of the express bar created under section 34 of the Act and also
for rejection of the plaint on the count that it is not properly valued.
3. Brief facts of the revision are as follows :
Respondent Nos. 1 and 2 herein had filed instant suit against the present
—
petitioner contending inter alia that they were the Directors of respondent No. 3-
Company and they had in September, 2009 availed financial assistance in the
nature of cash credit facility to the tune of ? 390.00 lakh from the petitioner herein.
Towards the satisfaction and repayment of said cash credit facility, they had
executed their personal guarantees in favour of the petitioner- bank. However,
subsequent thereto, they resigned from the post of the Directors of the said
Company by their resignation letter dated 8-1-2014 and in their place respondent
Nos. 4 and 5 have been appointed as Directors. The fact of their resignation was
communicated to the petitioner-bank by writing various letters from time to time.
The said letters were acknowledged by the petitioner-bank. By the said letters,
respondent Nos. 1 and 2 had also requested the petitioner- bank to release their
personal guarantees, but there was absolutely no response from the petitioner-bank.
4. In this fact situation, respondent Nos. 1 and 2 were served with notice on
2-3-2016 purporting to be issued under section 13(2) of the SARFAESI Act,
demanding the dues recoverable from respondent No. 3. The bank further
informed that they will be enforcing the right of recovery against respondent
Nos. 1 to 3. As per respondent Nos. 1 and 2, there were required to be released
from the alleged guarantee as per the letters issued by them. However, as the
petitioner bank has not taken cognizance of the said letters and was persisting in
taking action for recovery of the amount against them, who are no more,Directors
of respondent No. 3 Company and no more the guarantors of the cash credit
facility availed by respondent No. 3. Hence, it was submitted that as the new
Directors like respondent Nos. 4 and 5 have already taken the charge of the
Company and also given a letter to the petitioner bank undertaking the liability of
respondent Nos. 1 and 2, according to respondent Nos. 1 and 2, the notice issued
by the petitioner bank under section 13(2) of the SARFAESI Act was totally
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illegal and hence, it is necessary to restrain the petitioner bank from enforcing the
alleged liability under the guarantee-deeds. Respondents No. 1 and 2, therefore,
filed the suit for a decree of declaration that the liability of respondent Nos. 1 and
2 as guarantors/sureties for respondent No. 3-Company be treated as come to an
end and further declaration that they should be discharged from the alleged
guarantee dated 23-9-2009. By way of permanent injunction, a relief was sought
for restraining the petitioner-bank from taking any coercive action of recovery
against them, like issuing any further notice and publication of notice, in
newspaper in respect of the alleged transaction.
5. In this suit, on its appearance, petitioner herein filed an application at
Exh.20 challenging the jurisdiction of the Civil Court, in view of the express bar
created under section 34 of the SARFAESI Act and requested for framing of
preliminary issue under section of the 9-A the Code of Civil Procedure.
6. It was submitted by the petitioner that by the instant suit, the
respondents-plaintiffs are restraining the petitioner from taking any action in
pursuance of the notice issued under section 13(2) of the SARFAESI Act and,
therefore, the dispute involved in the suit being squarely covered under section
17 of the said Act, the effective and adequate remedy is available to the
respondents. They could file the appeal under section 17 of the Act to the Debt
Recovery Tribunal but the bar under section 34 of the SARFAESI Act being
clearly attracted to the facts of the case, the suit itself was not maintainable.
Hence, preliminary issue to that effect be framed and tried.
7. In the said application itself, petitioner also contended that on the bare
averments of the plaint, it is clear that respondents are claiming declaration that
their liability as guarantors/sureties for respondent No. 3 has come to an end and
they be discharged from the said guarantee. Respondents are also claiming for
perpetual injunction restraining the petitioner from taking any action for recovery
of the dues. The total amount due from the respondents is to the extent of
? 4,22,70,742/-. As the relief claimed by the respondents in the suit was thus
susceptible to monetary evaluation, it was necessary to value the suit on the
amount of ? 4,22,70,742/- and pay the Court fee stamp accordingly. However,
respondents have valued the suit for the purposes of Court fees at ? 1,000/- only
and hence, on this count also the plaint was required to be rejected.
8. This application came to be resisted by respondent Nos. 1 and 2,
contending inter alia that the valuation of the suit claim made by them is proper,
as they are claiming relief of injunction and declaration which is not susceptible
to monetary evaluation. In respect of objection to jurisdiction of the Civil Court,
it was submitted that as the dispute raised by them in the suit is not covered under
the provisions of SARFAESI Act, the bar under section 34 of the said Act is not
attracted. It was submitted that the said bar can be applicable only in the case of
secured creditor. However, the respondent Nos. 1 and 2 are not ‘secured
creditors’, within the meaning of the definition given in section 2(zf) of the said
Act as no “security interest”, by way of right, title or interest of any kind was
created upon property. It was only the personal guarantee of the respondents and
hence, the dispute raised by the respondents is not covered under the said Act.
Moreover, as they have already ceased to be the Directors of respondent No. 3,
their personal guarantee has come to an end and, therefore, petitioner cannot
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recover any amount or dues from them. It is submitted that as petitioner is still
persisting in taking action of recovery of dues from them, for such relief of
declaration and injunction the competent Court is only the Civil Court and hence,
the suit filed by the respondents seeking the relief of declaration and injunction is
very much maintainable before the Civil Court. The bar under section 34 of the
Act is not at all attracted to the present suit, therefore, the application filed by the
respondents needs to be dismissed.
9. On this application, learned trial Court, after hearing learned counsel for
both parties, was pleased to accept the submissions advanced on behalf of
respondents to hold that as the respondents had executed the personal guarantee,
it does not fall within the definition of ‘secured interest’ and therefore, the
dispute being not covered under the SARFAESI Act, but covered under section
31(a) of the said Act, the Civil Court can entertain such suit and its jurisdiction is
not barred. Learned trial Court was further pleased to hold that as the relief
claimed in the suit is not susceptible to monetary evaluation, the application for
rejection of plaint on the ground that suit is not properly valued was not tenable.
Trial Court has accordingly rejected the application in its totality.
10. While challenging this order of the trial Court, in this Revision, the
submissions of petitioner are twofold. It is submitted that the learned trial Court
has failed to appreciate the provisions of SARFAESI Act and its object and its
reason. It is urged that the action taken by the petitioner bank being under section
13(2) of the SARFAESI Act, the only remedy available to the respondents was to
challenge the said notice by preferring an appeal under section 17 before the
Debt Recovery Tribunal, as the jurisdiction of Civil Court in such matters is
ousted on account of the specific bar created under section 34 of the Act. It is
submitted that whether the liability of respondents is of a personal guarantee or
of a secured interest, that question is also required to be decided by Debt
Recovery Tribunal and not by Civil Court. According to learned counsel for
petitioner, the trial Court has not properly appreciated the various relevant case-
laws cited before it, including the landmark judgment of the Hon’ble Apex Court
in the case of Mardia Chemicals Limited, 2004(2) Mh.L.J. 1090 and therefore,
the impugned order of the trial Court needs to be interfered.
11. Even as regards the valuation of the suit claim, the learned counsel for
the petitioner submits that, if by the instant suit respondents intend to avoid the
liability of guarantee to the petitioner to the extent of ? 4,22,70,742/-, the suit is
definitely susceptible to monetary evaluation. Hence, even the bare reading of the
plaint also makes it clear that the valuation was not made properly. Hence, the trial
Court has erred in rejecting the application filed by the appellant on this count also.
12. Per contra, learned counsel for respondent Nos. 1 and 2 has supported
the impugned order of the trial Court, by adopting the reasons given by the trial
Court and further reiterating that as the respondents have ceased to be the
Directors and that too, to knowledge of the petitioner, they stand discharged from
their liability. Moreover, their security being personal one and not on any
property as such, it is not covered under the definition of section 2(zf) of the
SARFAESI Act. Therefore, trial Court has rightly held that the suit is
maintainable and the bar under section 34 of the Act was not attracted. As
regards the valuation of the suit claim also, learned counsel for the respondents
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has relied upon the reasons given by the trial Court and the various Judgments of
this Court and the Hon’ble Supreme Court.
13. In the light of these rival submissions advanced by learned counsel for
both the parties, the first and foremost issue raised for my consideration in this
revision is whether the jurisdiction of the Civil Court to entertain the suit filed by
the respondents is expressly barred, in view of section 34 of the SARFAESI Act?
14. It need not be stated that provisions of SARFAESI Act have been
subject-matter of interpretation in various decisions of this Court and also of the
Apex Court. Learned counsel for both the parties have also relied upon some of
those decisions, the landmark decision on the point being that of Mardia
Chemicals Limited vs. Union of India, 2004(2) Mh.L.J.1090 and then that of
Nahar Industrial Enterprises Limited vs. Hong Kong Shanghai Banking
Corporation, (2009) 8 SCC 646. Learned counsel for the petitioner has also
relied upon the latest decision of the Hon’ble Apex Court in the case of State
Bank of Patiala vs. Mukesh Jain and another, 2016(6) Mh.L.J. (S.C.) 895 =
(2017) 1 SCC 53 and that of our own High Court in the case of Punjab National
Bank, Ballarpur vs. Shaikh Mumman Shaikh Guljar, 2010(4) Mh.L.J.133.
15. However, in my considered opinion, before adverting to these
decisions it would be necessary to consider the provisions of SARFAESI Act
itself, along with the objects and reasons for which it was enacted.
16. The statement of the Objects and Reasons of the Act indicate that as
our existing legal frame work relating to commercial transactions has not kept
pace with the changing commercial practices and financial sector reforms, the
SARFAESI Act was enacted to enable banks and financial institutions to realise
long term assets, manage problem of liquidity, assets liability, mismatches and
improve recovery by exercising power to take possession of securities, sell them
and reduce nonperforming assets by adopting measures for recovering or
reconstructing the assets. Thus, the Act was enacted to provide speedy recovery
of securities and financial assets. For that, a separate mechanism is created under
the Act and has provided separate remedies to a person aggrieved by only of the
measures taken under the Act. The relevant provision in the Act is section 13
which deals with various measures which the ‘secured creditor’ is entitled to take
for enforcement of security interest. Sub-section (1) of section 13 provides that;
13. Enforcement of security interest. (1) Notwithstanding anything
contained in section 69 or section 69-A of the Transfer of Property Act,
—
1882 (4 of 1882), any security interest created in favour of any secured
creditor may be enforced, without the intervention of the Court or
tribunal, by such creditor in accordance with the provisions of this Act.
(2) Where any borrower, who is under a liability to a secured
creditor under a security agreement, makes any default in repayment of
secured debt or any instalment thereof and his account in respect of
such debt is classified by the secured creditor as non-performing asset,
then, the secured creditor may require the borrower by notice in writing
to discharge in full his liabilities to the secured creditor within sixty days
from the date of notice failing which the secured creditor shall be
entitled to exercise all or any of the rights under sub-section (4 ).
R.F. 17
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Provided that —
the requirement of classification of secured debts nonperforming
(i)
asst under this sub-section shall not apply to the borrower who
has raised funds through issue of debt securities; and
(ii) in the event of default, the debenture trustee shall be entitled to
enforce security interest in the same manner as provided under
this section with such modifications as may be necessary and in
accordance with the terms and conditions of security documents
executed in favour of the debentures trustee.
(3) The notice referred to in sub-section (2) shall give details of the
amount payable by the borrower and the secured assets intended to be
enforced by the secured creditor in the event of non-payment of secured
debts by the borrower.
(3-A) If, on receipt of the notice under sub-section (2), the borrower
makes any representation or raises any objection, the secured creditor
shall consider such representation or objection and if the secured
creditor comes to the conclusion that such representation or objection is
not acceptable or tenable, he shall communicate (within fifteen days) of
receipt of such representation or objection the reasons for non-
acceptance of the representation or objection to the borrower :
Provided that the reasons so communicated or the likely action of the
secured creditor at the stage of communication of reasons shall not
confer any right upon the borrower to prefer an application to the Debts
Recovery Tribunal under section 17 or the Court of District Judge under
section 17-A.
(4) In case the borrower fails to discharge his liability in full within
the period specified in sub-section (2), the secured creditor may take
recourse to one or more of the following measures to recover his secured
debt, namely ; —
(a) take possession of the secured assets of the borrower including
the right to transfer by way of lease, assignment or sale for
realizing the secured asset;
(b) take over the management of the business of the borrower
including the right to transfer by way of lease, assignment or
sale for realising the secured asset :
Provided that the right to transfer by way of lease,
assignment or sale shall be exercised only where the substantial
part of the business of the borrower is held as security for the
debt :
Provided further that where the management of whole of the
business or part of the business is severable, the secured creditor
shall take over the management of such business of the borrower
which is relatable to the security for the debt.
Section 17 of the Act then provides that
“17.... Any person (including borrower), aggrieved by any of the
measures referred to in sub-section (4) of section 13 taken by the
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secured creditor then he make application to the Debt Recovery

Tribunal having jurisdiction in the matter within forty-five days from
the date on which such measures had been taken”.
' Provided that different fees may be prescribed for making the
application by the borrower and the person other than the borrower.
Thereafter, section 18 provides a right of Appeal to the person aggrieved
by the decision of Debt Recovery Tribunal to the Appellate Tribunal. Section 34
of the Act is relevant which lays down as follows :
“34.... Civil Court not to have jurisdiction. 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 and no injunction shall be
granted by any Court or other authority in respect of any action taken or
to be taken in pursuance of any power conferred by or under this Act or
under the Recovery of Debts Dues to Banks and Financial Institutions
Act, 1993”.
17. Looking to the entire purpose and object of the Act, it is evident the
Act provides for various remedies to the secured creditor for recovery of the
dues. An effective remedy of making an application to Debt Recovery Tribunal is
also provided to the aggrieved person section 17(1) of the Act and as per section
34 of the Act, therefore, the jurisdiction of Civil Court is expressly barred in
respect of any matter which Debt Recovery Tribunal is empowered to determine.
It also specifically provides that no injunction can be granted by any Court in
respect of any action taken in pursuance of the Act under the Recovery of Debts
Dues to Banks and Financial Institutions Act, 1993. Section 35 of the Act further
provides that the provisions of SARFAESI Act shall have overriding effect, on
provisions of any other law time being in force. Thus, it can be seen that the
SARFAESI Act is a complete self-contained Code in itself, which provides
effective measures for the banks and financial institutions to recover their dues
without intervention of the Courts and adequate remedies are also provided in the
Act itself to the persons aggrieved by those measures.
18. The provisions of section 13 were considered in detail by the Hon’ble
Apex Court in the landmark decision of Mardia Chemicals Limited (supra) as the
question raised before the Apex Court in that decision was whether bar under
section 34 applies only in respect of the measures taken under section 13(4) or
even for any prior action, like notice under section 13(2) of the Act? while
answering this question in affirmative, in paragraph 50 of the said judgment, it
was held thus :
“50.... It has also been submitted that an appeal is entertainable before
the Debt Recovery Tribunal only after such measures as provided in sub¬
section (4) of section 13 are taken and section 34 bars to entertain any
proceeding in respect of a matter which the Debt Recovery Tribunal or
the appellate Tribunal is empowered to determine. Thus before any
action or measure is taken under sub-section (4) of section 13, it is
submitted by Mr. Salve one of the counsel for respondents that there
would be no bar to approach the Civil Court. Therefore, it cannot be
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said no remedy is available to the borrowers. We, however, find that this
contention as advanced by Shri. Salve is not correct. A full reading of
section 34 shows that the jurisdiction of the Civil Court is barred in
respect of matters which a Debt Recovery Tribunal or 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
Debt 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 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
Debt Recovery Tribunal, apart from those matters in which measures
have already been taken under sub-section (4) of section 13”.
19. This provision of section 13 of the SARFAESI Act again fell for
consideration before the Hon’ble Apex Court in the case of Jagdish Singh vs.
Heeralal and others, reported in 2014(3) Mh.L.J. (S.C.) 588 = AIR 2014 SC 371.
In this case after referring to its earlier decision in the case of Mardia Chemicals
Limited, it was held by the Hon’ble Apex Court that, if any person is aggrieved
on account of measures taken under section 13(4) of the Act then such person has
got a statutory right of appeal to the Debt Recovery Tribunal under section 17. It
was specifically held in paragraph 22 of the judgment that :
“22.... Statutory interest is being created in favour of the secured
—
creditor on the secured assets and when the secured creditor proposes to
proceed against the secured assets, sub-section (4) of section 13
envisages various measures to secure the borrower’s debt. One of the
measures provided by the statute is to take possession of secured assets
of the borrowers, including the right to transfer by way of lease,
assignment or realizing the secured assets. Any person aggrieved by any
of the “measures" referred to in sub-section (4) of section 13 has got a
statutory right of appeal to the DRT under section 17. 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. Further, section 35 says, the
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Securitisation Act overrides other laws, if they are inconsistent with the
provisions of that Act, which takes in section 9, Civil Procedure Code as
well”.
In paragraph 23 of the Judgment, it was further held that the Civil Court’ s
jurisdiction is completely barred so far as the “measure” taken by secured
creditor under sub-section (4) of section 13 of the Securitisation Act, against
which the aggrieved person has right of appeal before the Debt Recovery
Tribunal or the Appellant Tribunal to determine as to whether there has been any
illegality in the “measures” taken”. Accordingly, it was held that 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 SARFAESI Act were legal or not.
20. It may be stated that, in this reported case the auction sale of the
property made under section 13(4) of the Act was challenged on the ground that
the mortgaged property was belonging to Hindu Undivided Family and therefore,
the sale was not legal and proper. The suit was also filed for declaration that the
property was belonging to HUF and for partition. High Court held that, whether
the property was of HUF or not, can be decided by the Civil Court and the
jurisdiction of Civil Court was not barred to entertain the suit. However, Hon’ble
Supreme Court, relying on section 13(4) of the SARFAESI Act held that as
whatever measure, namely, the auction sale, was taken under section 13(4) of the
Act, Civil Court has no jurisdiction to decide even as to whether the said measure
was legal or not. Only the Debt Recovery Tribunal can decide the same.
21. Now whether the bar under section 34 would apply even before the
measures as provided under section 13(4) are taken was the issue raised before this
Court also, in the case of Punjab National Bank, Ballarpur vs. Shaikh Jumman
Shaikh Guljar (supra) and then relying on the above said decision in the case of
Mardia Chemicals Limited vs. Union of India, it was held that the bar of
jurisdiction of Civil Court under section 34 of the Act would operate even before
the measures as provided under section 13(4) are taken. It was held that, as per the
settled position, any matter in respect of which, an action may be taken even later
on, the Civil Court will have no jurisdiction to entertain any proceedings thereof.
22. Thus, the issue whether the notice issued under section 13(2) of the Act
can be challenged in Civil Court or not is no more res integra, as it is
categorically held in all these authoritative pronouncements of the Hon’ble
Supreme Court and this Court that the jurisdiction of Civil Court is barred even
in respect of the challenge raised to the notice under section 13(2) of the Act.
23. In this case of Punjab National Bank vs. Shaikh Jumman one more
interesting question of law which is similar to the one raised in present case, was
also considered by this Court as to whether the bar under section 34 is attracted,
only when it is shown that ‘security interest’ is created in favour of the ‘secured
creditor’ and not where the creditor is unsecured. While dealing with this
question, it was held by this Court that “whether security interest is legally
created or not, whether it is the notice issued by secured creditor or not, can be
gone into under section 17 of the Act by the Debt Recovery Tribunal and hence,
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the jurisdiction of Civil Court is barred under section 34 of the Act even to
decide the said question”.
24. Further in the case of State Bank of Patiala vs. Mukesh Jain and
another, 2016(6) Mh.L.J. (S.C.) 895 = (2017) 1 SCC 53, which is relied by
learned counsel for petitioner also, it was held that “when section 34 of the Act
specifically provides for the bar of jurisdiction of the Civil Court, then any action
initiated under section 13(2) of the Act cannot be challenged before Civil Court.
The only remedy available to the aggrieved person is to challenge the same
before Debt Recovery Tribunal under section 17 of the Act”. On this very ground
in this case the application for rejection of the plaint filed by the defendant was
allowed by the Apex Court and the orders of the trial Court and High Court
rejecting the same were set aside.
25. If one considers the facts of the present case in the light of these
provisions and their interpretation then, in this case, as stated, above respondent
Nos. 1 and 2 are challenging the notice issued to them by petitioner under section
13(2) of the Act, which was for recovery of the outstanding dues from the
respondent and respondents No. 1 and 2, as guarantors for respondent No. 3, the
principal debtor. Respondent Nos. 1 and 2 are not disputing the fact that they had
stood as guarantors for the cash credit facility, which was availed for the business
of respondent No. 3. They are also not disputing that when the cash credit facility
was availed, they were the Directors of the said Company. In the plaint itself,
they have stated that they had furnished their personal guarantees in addition to
hypothecation charge on the entire stock, book debts and other assets of the
Company as well as other Collateral Securities. The sanction letter dated 23-11-
2013 which is produced on record effect is also sufficient to prove the same.
26. The only contention raised by respondent Nos. 1 and 2 is that on
account of family dispute, they have ceased to be the Directors of respondent No.
3 and respondent No. 4 and 5 took over the post of Directors. According to
respondent Nos. 1 and 2, they resigned from the post of Director on 31-1-2014
and its intimation was given to the petitioner immediately. The copy of the said
intimation is also produced on record. It is further stated that on 31-1-2014
respondent Nos. 4 and 5 also intimated the petitioner bank that they have become
the Directors and also requested release of for personal guarantee of respondent
Nos. 1 and 2. That letter was also acknowledged by the petitioner bank.
Thereafter, several letters are written by respondent Nos. 1 and 2 to the petitioner
bank requesting for release of their personal guarantee, in view of their
resignations from the post of Directors. Similar correspondence was made to the
Registrar of the Companies informing them about change in the Directors of the
Company. *
27. Thus the contentions of respondent Nos. 1 and 2 are twofold; first that
they are no more the Directors of the Company and hence, no more liable to the
outstanding dues recoverable from the Company. Secondly, whatever guarantee
they had executed, it was the personal guarantee and not against any security,
therefore, as it was not “secured interest”, the provisions of SARFAESI Act
cannot be made applicable.
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28. While dealing with the first contention, even if it is accepted that
respondent Nos. 1 and 2 had resigned from the post of Directors of the Company
and they had also intimated about the same to the petitioner bank and also to the
Registrar of the Companies, the fact remains that though the petitioner bank has
acknowledged those various letters, the Bank had not released their guarantee.
There is not a single document produced on record by the respondents to show
that bank has accepted the fact of their resignation from the Company and
released them from their personal guarantees towards the repayment of financial
assistance availed by the Company. Therefore, merely because the bank has
received those letters, it cannot be accepted that the bank had released respondent
Nos. 1 and 2 from their liability as personal guarantors to the loan availed by the
Company. It was a unilateral act on the part of respondent No. 1 and 2 to resign
from the Company but by such unilateral act, unless it was accepted or acted
upon by the bank, respondent Nos. 1 and 2 cannot contend that as they have
resigned from the post of Directors, they should also be absolved from the
liability of dues which were outstanding against the Company. Their act of
resignation being unilateral, so far as their liability towards the repayment of
dues from the Company is concerned, as their guarantee was never released by
the bank, they continue to be liable to the bank for repayment of the amount
which was due to the bank. Hence, this contention about their resignation and
hence release from bank guarantee cannot be accepted.
29. Second contention raised by the respondents is that they had not
created any “secured interest” in favour of the bank and hence, their guarantee
being of a personal nature, it is not covered within the definition of “security
interest” as given under section 2(zf) of the Act. To advance this submission
reliance is placed on the definition of “security interest”, as given in section 2(zf)
of the Act, which reads as follows :—
“2(zf).... “Security interest’’ means right, title or interest of any kind,
other than those specified in section 31, upon property created in favour
of any secured creditor and includes
(i) any mortgage, charge, hypothecation, assignment or any right,
—
title or interest of any kind, on tangible asset, retained by the
secured creditor as an owner of the property, given on hire or
financial lease or conditional sale or under any other contract
which secures the obligation to pay any unpaid portion of the
purchase price of the asset or an obligation incurred or credit
provided to enable the borrower to acquire the tangible asset; or
(ii) such right, title or interest in any intangible asset or assignment
or license of such intangible asset which secures the obligation
to pay any unpaid portion of the purchase price of the intangible
asset or the obligation incurred or any credit provided to enable
the borrower to acquire the intangible asset or license of
intangible asset;’’
30. As this definition refers to section 31 of the Act, which creates an
exception to bar under section 34 of the Act by excluding right, interest of any
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kind specified in section 31, from jurisdiction of Debt Recovery Tribunal, it is

necessary to reproduce section 31 also and it states as under : —
“31... Provisions of this Act not to apply in certain cases. The —
provisions of this Act shall not apply to
(a) a lien on any goods, money or security given by or under the
—
Indian Contract Act, 1872 (9 of 1872) or the Sale of Goods Act,
1930 (3 of 1930) or any other law for the time being in force;
(b) a pledge of movables within the meaning of section 172 of the
India Contract Act, 1872 (9 of 1872);
(c) creation of any security in any aircraft as defined in clause (1) of
section 2 of the Aircraft Act, 1934 (24 of 1934);
(d) creation of security interest in any vessel as defined in clause
(55) of section 3 of the Merchant Shipping Act, 1958 (44 of
1958);
(f) any rights of unpaid seller under section 47 of the Sale of Goods
Act, 1930 (3 of 1930);
(g) any properties not liable to attachment (excluding the properties
specifically charged with the debt recoverable under this Act) or
sale under the first proviso to sub-section (1) of section 60 of the
Code of Civil Procedure, 1908 (5) of 1908);
(h) any security interest for securing repayment of any financial
asset not exceeding one lakh rupees;
( i ) any security interest created in agricultural land;
(j) any case in which the amount due is less than twenty per cent of
the principal amount and interest thereon”,
31. Even the bare perusal of section 31 is thus sufficient to hold that the
personal guarantee, which is executed by respondent Nos. 1 and 2 for repayment
of dues availed by respondent No. 3 cannot fall in any those clauses. Therefore,
on the face of it, it is clear that the present case cannot be covered under any of
the exceptions provided in section 31 of the Act. Even the averments made in the
plaint show that respondent Nos. 1 and 2 had not only furnished their personal
guarantee but also in addition thereto, hypothecation charge on the entire stock,
book debts and other assets of the Company as well as other collateral securities,
in their capacity as Directors. Therefore, respondents cannot contend that the
guarantee executed by them was merely personal guarantee and hence, it does
not fall under the “security interest”.
32. Moreover, as held in the above said authority of our own High Court in
the case of Punjab National Bank, Ballarpur vs. Shaikh Mumman Shaikh Guljar
whether their guarantee was personal or whether it has created a security interest,
this question is to be decided by the Debt Recovery Tribunal and not by Civil
Court. In this judgment, it was clearly held that though the provisions of section
13 of enforcement of security interest and of section 17 regarding right to appeal
are attracted, only when it is shown that the “security interest” is created in
favour of a “secured creditor” and not where the creditor is unsecured, the
question whether security interest is legally created or not, or whether it is the
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notice issued by secured creditor or not, can be gone into under section 17 by
Debt Recovery Tribunal only. Hence, for all these reasons, the jurisdiction of
Civil Court is barred under section 34 of the Act.
33. In this reported judgment, the averments in the plaint were to the effect
that, neither the plaintiff nor his father has kept the land mentioned as security
and therefore, defendant bank is “unsecured creditor”. However, this contention
was not accepted so as to confer jurisdiction on the Civil Court, by holding that
whether such security interest is created or not, is to be decided under section 17
by Debt Recovery Tribunal and not by Civil Court.
34. In the instant case therefore whether respondent No. 1 and 2 have
created merely personal guarantee or they had also created security interest on
behalf of the Company by mortgaging the stock and hypothecation charge on the
entire stock, book debts and other assets of the Company as well as other
Collateral Securities, is to be decided by the Debt Recovery Tribunal under
section 17 of the Act and not by the Civil Court. The said issue clearly comes
within the purview of the provisions of SARFAESI Act and the jurisdiction of
Civil Court is hence expressly barred in respect of the matters which are covered
under the said Act.
35. Moreover, the reading of section 34 of the Act reveals that it is in two
parts. The first part is, no Civil Court shall have jurisdiction to entertain the 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, whereas the
second part of the provision prohibits the Court from granting injunction in
respect of any action taken or to be taken in pursuance of any power conferred by
or under this Act or under the Recovery of Debts Due to the Banks and Financial
Institution Act, 1993. In the present suit filed by respondent Nos. 1 and 2, they
are not only claiming the declaration that they are discharged from their liability
as guarantors of the Company but they are also seeking the relief of injunction
restraining the petitioner from taking any action in pursuance of the notice issued
under section 13(2) of the Act.
36. The second part of section 34 of the Act expressly prohibits the Civil
Court from granting injunction in respect of any action taken or to be taken by or
under the Act. The issuance of the notice is an action taken by the petitioner
under section 13(2) of the Act. Hence, as the Civil Court is prohibited from
granting any injunction in respect of the notice or future action to be taken under
the Act. Hence, on this count also the jurisdiction of Civil Court is barred.
Further it is an action taken by the bank in pursuance of “measures” under
section 13(2) of the Act, therefore granting any injunction or declaration
restraining the bank from taking measures against respondents is also barred
under section 34 of the said Act. Therefore, on this very count itself, the plaint
was liable to be rejected under Order VII, Rule 11(d) of the Code of Civil
Procedure.
37. As regards the authorities relied upon the learned counsel for
respondents, the first one is of Mardia Chemicals Ltd. (supra) especially para 51
of this Judgment. However, in my considered opinion reliance placed on para 51
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is misplaced because as per para 51 of the said judgment, the jurisdiction of Civil
Court can be invoked only to some limited extent when the action of secured
creditor is alleged to be fraudulent or their claim may be so absurd and untenable
which may not require any probe whatsoever. Here, there is no allegation of
fraud or the claim being absurd even for the sake of it. Therefore, the respondents
cannot bring their suit within the limited exception, provided in para 51 of this
authority also.
38. Though much reliance is placed by learned counsel for respondents on
the judgment of Supreme Court in the case of Nahar Industrial Enterprises
Limited vs. Hong Kong Shanghai Banking Corporation, (2009) 8 SCC 646, it can
be seen that the only question raised for consideration in the said judgment was
“whether High Court or the Hon’ble Supreme Court has power to transfer a suit
pending in a Civil Court situated in one place to a Debt Recovery Tribunal,
situated in another State”? In the very introductory paragraph 2 this question was
posed for consideration and for deciding the said question, various provisions of
the Code of Civil Procedure were considered and it was held that the Civil Courts
are created under different Acts under different hierarchy and as the Civil Court
indisputably has the pecuniary jurisdiction to try the suit, the application before
the Debt Recovery Tribunal would lie only at the instance of the bank or the
financial institution for the recovery of its debt. It was held that “if the liabilities
and rights of the parties are not created under the SARFAESI Act, it is difficult to
hold that civil Court’s jurisdiction is completely ousted”. Here, in the case rights
and liabilities of the parties are created very much under the SARFAESI Act in
view of cash credit facility availed by the respondents as Directors of respondent
No. 3-Company and executed guarantee deeds. Recovery of dues against them is
also under the Recovery of Debt Due to the Banks and Financial Institutions Act,
1993 and SARFAESI Act. This authority therefore cannot be made applicable to
the facts of the case in hand.
39. As a result, it has to be held that the trial Court should have allowed the
application filed by the petitioner for rejection of the plaint under Order VII, Rule
11(d) of the Code of Civil Procedure, on the count that suit is expressly barred in
view of section 34 of the SARFAESI Act.
40. The second issue raised for consideration in this Revision pertains to
valuation of the suit claim. This issue is to be decided in the light of averments
made in the plaint. Moreover, the plaint cannot be straightway rejected also on
this count but if it is found that Court fee is not properly paid, then opportunity
needs to be given to the plaintiff to pay correct deficit Court fee. However, as this
issue is specifically raised in the application filed by petitioner before the trial
Court and in this Court also, it has become necessary to consider the same in this
revision.
41. Learned counsel for the respondents-plaintiffs has also reliedmpon the
judgment of this Court in the case of Bina Alhad Naik vs. Deu Keshav Naik and
others, 2008(6) Mh.L.J. 815 has to submit that the averments made in the plaint
have to be read as a whole for deciding whether the claim is valued properly or
not. It is submitted that rejection of plaint is not permissible by picking and
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choosing some averments in the plaint and reading them out of context. Here, in
this case it is urged that the relief which the respondents are claiming is only of
declaration and injunction and as the said relief is not susceptible to monetary
evaluation, respondent have valued the claim under section 6(iv)(j) of the
Maharashtra Court Fees Act, 1959.
42. Further, learned counsel for respondents has also relied upon the
judgment of this Court in the case of Om Plastic Industries, Dhule and others vs.
Maharashtra State Finance Corporation, Mumbai and others, 2001(1) Mh.L.J.
560, to submit that question of Court fees must be considered in the light of the
allegations made in the plaint and its decision cannot be influenced, either by the
pleas taken in the written statement or by the final decision of the case on merit.
43. Learned counsel for respondent has then relied on the judgment of the
Hon’ble Apex Court in the case of Tetra Devi vs. Sri Thakur Radha Krishna
Maharaj, through Sebaits Chandeshwar Prasad and Meshwar Prasad and
another, (1987) 4 SCC 69 to urge that, valuation of the claim made by the
plaintiff, according to his own estimation of the relief, has to be accepted by the
Court, unless it is arbitrary, unreasonable and deliberately under estimated.
44. Lastly, learned counsel for respondent has placed reliance on Eagle
Soraj Townships Pvt. Ltd. and others vs. Eagle Agro-Farm Pvt. Ltd., 2013(1)
Mh.L.J. 439 to submit that when the suit is for injunction simplicitor, restraining
defendant from interfering with the property, relief claimed is not susceptible of
monetary evaluation. Hence payment of Court fees under section 6(iv)(j) of the
Maharashtra Court Fees Act cannot be faulted with.
45. In my considered opinion, there cannot be any two opinions as to the
legal propositions laid down in all these authorities. However, the fact remains
that, even if the averments made in the plaint are taken and accepted as they are,
the question has to be decided on the basis of the particular facts and
circumstances of each case, having regard to the relief claimed in the plaint.
46. Herein paragraph 28 of the plaint, it is averred by respondents that
relief cannot be counted in terms of money and looking to the hardship that may
arise in the matter, hence, the present dispute comes under the provision of
section 6(iv)(j) of the Maharashtra Court Fees Act, 1959 and, therefore, suit is
valued at 1,000/- and the Court fee of ? 200/- is paid.
47. However, as rightly submitted by learned counsel for petitioner, even a
cursory perusal to the reliefs which respondents have claimed in the suit is
sufficient to disclose that by filing such suit, the respondents want to avoid their
alleged liability of paying the dues of the petitioner as guarantors/sureties of
respondent No. 3. It is pertinent to note that the respondent are seeking the relief
of declaration that they are discharged from the said liability which has arisen
under the guarantee-deed dated 23-9-2009. Further, they are claiming injunction
for restraining the petitioner and other respondents from taking any coercive
action for recovery of those dues, which were claimed from them under the
notice issued section 13(2) of SARFAESI Act on 2-3-2016. The said notice
pertains to the recovery of amount of ? 4,22,70,742/. By filing this suit, the
respondents want to get rid of the payment of that amount.
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48. Now the question for consideration is whether such delectation, which
respondents are claiming in the suit for discharging them from the liability of
paying the dues, can be called as “not susceptible to monetary evaluation”? so
that it can be covered under section 6(iv)(j) of the Maharashtra Court Fees Act?
As per said provision, according to which plaintiff-respondents have valued the
suit, only when the declaration sought in the suit is not susceptible of monetary
evaluation, that ad volerm fees is payable as if the amount or value of the subject¬
matter was ? 1,000/-. Here, in the case the relief which is claimed by respondents
is definitely susceptible to monetary evaluation as they want declaration of their
discharge from the liability of paying the amount of ? 4,22,70,742/-. Therefore,
this amount is when susceptible to monetary evaluation, then in my considered
opinion, it stands covered under section 6(1) of the Maharashtra Court Fees Act,
1959 and under Article 7 of Schedule I which lays down that; ‘in case of the
plaint, application or petition (including memorandum of appeal), to obtain
substantive relief capable of being valued in terms of monetary gain or
prevention of monetary loss, including cases wherein application or petition is
either treated as a plaint or is described as the mode of obtaining the relief’, the
Court fee on the amount of the monetary gain, or loss to be prevented, according
to the scale prescribed under Article 1 is to be paid.
49. Therefore, as per this Article, when any petition is filed to obtain
substantive relief, capable of being valued in terms of monetary gain or
prevention of monetary loss, including cases wherein application or petition is
either treated as a plaint or is described as the mode of obtaining the relief as
aforesaid, then the Court fees on the amount of monetary gain or loss to be
prevented, is required to be paid according to the scale prescribed under Article.
Respondents are claiming the relief to prevent the monetary loss, which they are
likely to suffer, if the action in pursuance the notice issued under section 13(2) is
taken against them. Therefore, such relief is susceptible to monetary evaluation
and hence, the proper Court fees stamp is required to be paid by law under
Article 7 of Schedule I.
50. If at all any authority is required to confirm this view, then one can
safely place reliance on the judgment of this Court in the case of Gilda Finance
and Investment Ltd. vs. Natenco WindPower Pvt. Ltd., reported in 2008 MhLJ
Online 25 = 2009(2) Bom.C.R. 129. In the said case also, the relief which
plaintiff has sought, was for the injunction, restraining defendant Nos. 1 and 2
from enforcing bank guarantee till the rights of plaintiff were settled in
connection with the Memorandum of Understanding. The similar argument was
advanced to the effect that as the relief of injunction is not susceptible to
monetary evaluation, the valuation of the suit claim was made as per section
6(iv)(j) of the Maharashtra Court Fees Act. However, this submission was
rejected and it was held that as the plaintiff wants to restrain the defendant from
encashing two guarantees of? 47,00,000/-, it means the plaintiff wants to prevent
loss of ? 47,00,000/. Therefore, the suit was capable of being valued in terms of
money and hence, falls under Article 7 and not under section 6(iv)(j) of the
Bombay Court Fees Act.
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51. It was held in paragraph 5 of the judgment that as the relief claimed
was ultimately surrounding two bank guarantees of?" 47,00,000/-, by seeking the
order of injunction, the plaintiff was ultimately preventing the loss of
? 47,00,000/- and in the result gaining the same. Hence, merely because the suit
is termed as simplicitor for injunction, that itself cannot be the reason to allow
the plaintiff to file the same by paying the Court fees of ? 200/- as per the
Bombay Court Fees Act. It was held that, the Court needs to see the sum and
substance and substantial reliefs claimed in the suit.
52. In paragraph 6 of the judgment, it was further held that as the
substantive reliefs claimed in the suit were capable of being valued in terms of
money and fall under the ambit of Schedule I of Article 7 it was not a suit which
can fall under section 6(iv)(j) of the Bombay Court Fees Act. It was further held
that once the suit is capable of being valued in terms of money, then there was no
reason to over look the provision contained in Article 7 of Schedule I and allow
such plaint to be entertained without proper Court fee. In paragraph 7 again it
was again held that the Bombay Court Fees Act may not be interpreted and /or
extended of collect the Court fee if the provisions are vague but when the
provision is clear and there is no ambiguity, the plaintiff has to pay the requisite
fee and cannot attempt to evade the same.
53. The facts of the present case are also identical. In this case also,
respondents-plaintiffs are seeking relief of declaration and injunction for
restraining the petitioner from recovering the amount of ? 4,22,70,742/- from
them. The suit claim is, therefore, definitely susceptible to monetary evaluation
and as it falls under the ambit of Schedule 1 Article 7, the valuation made by the
respondents under section 6(iv)(j) of the Maharashtra Court Fees Act cannot be
proper and legal. The impugned finding given by the learned trial Court,
therefore, on this aspect also needs to be reversed.
54. It may be true that on this ground, the suit cannot be dismissed, without
giving an opportunity to the respondents to correct the valuation and, therefore,
on this ground petitioner’s application for rejection of the plaint straightway may
not be tenable. Moreover, now this question has become purely of academic
importance in this case, as I have already held that Civil Court has no jurisdiction
to entertain the suit filed by the respondents in view of the bar created under
section 34 of the SARFAESI Act.
55. The net result of the discussion is that, this revision needs to be allowed
and accordingly stands allowed.
The impugned order passed by the trial Court stands quashed and set aside.
In consequence, the plaint of the suit filed by the respondent Nos. 1 and 2
before the trial Court stands rejected under Order VH, Rule 11(d), Civil
Procedure Code being barred by law under section 34 of the SARFAESI Act.
The Revision stands disposed of in the above said terms.
Revision allowed.

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Page 1 Thursday, September 21, 2023

252 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

SECURED LOAN : RECOVERY OF

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 253

Question whether security interest is legally created or not, or whether it is

Securitisation and Reconstruction of Financial Assets and Enforcement of

254 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

7. Om Plastic Industries, Dhule and others vs. Maharashtra State

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 255

256 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 257

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 259

secured creditor then he make application to the Debt Recovery

260 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 261

262 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

264 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

kind specified in section 31, from jurisdiction of Debt Recovery Tribunal, it is

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 265

266 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 267

268 ALLAHABAD BANK vs. HEMANTKUMAR [2017(6) Mh.L.J.

2017(6) Mh.L.J.] ALLAHABAD BANK vs. HEMANTKUMAR 269

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