The High Court of Punjab & Haryana dismissed the Bank's revision petition. The court held that since the plaint did not challenge the action under SARFAESI Act, Section 34 did not apply. Further, rejection under Order 7 Rule 11 CPC required examining plaint averments, not evidence. The order below was justified.
Revision petition stands dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR No.4267 of 2016 (O&M)
{1}
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No.4267 of 2016 (O&M) Date of decision:03.08.2016
Canara Bank
... Petitioner
Vs.
Suresh Gulia and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:Mr. Nitin Grover, Advocate for the petitioner.
AMIT RAWAL J. (Oral)
The petitioner-Bank is aggrieved of the impugned order dated 02.05.2016 passed in application filed under Order 7 Rule 11 of Code of Civil Procedure (hereinafter referred to as “CPC”) seeking rejection of the plaint on the premise that in view of the provisions of Section 34 of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (also known as the SARFAESI Act, 2002), the suit is not maintainable.
Mr. Nitin Grover, learned counsel appearing on behalf of the petitioner-Bank submits that tenancy has been created on 01.09.2015, whereas, symbolic possession was taken on 21.07.2015. In view of the embargo put under Section 34 of SARFAESI Act, 2002 as amended in 2004, Civil Court has no jurisdiction to try and entertain the suit. The trial Court ought to have accepted the application and thus, urges this Court for setting aside of the impugned order.
Savita 2016.08.10 14:17 I attest to the accuracy and integrity of this document High Court Chandigarh
CR No.4267 of 2016 (O&M)
{2}
I have heard learned counsel for the petitioner-Bank and appraised the paper book and of the view that there is no merit and force in the submissions of Mr. Grover, for, prayer made in the suit reads thus:-
“It is therefore prayed that a decree for declaration to the effect that the plaintiff is lessee in possession of the suit property under defendant No.2 and the defendant No.1 has no concern with the same and the possession taken by defendant no.1 by sealing the suit property is illegal, null and void and further a decree for mandatory injunction thereby directing the defendant No.1 to open the seal and hand over the actual physical possession of suit property, paddy & rice stock lying there in, mentioned in para no.1 of the plaint, and further to pay the damages as assessed by this Hon'ble Court, be passed with cost in favour of the plaintiff and against the defendants, in the interest of justice.
Any other relief to which the plaintiff is entitled may also be granted to him.”
On perusal of the aforementioned prayer, it is revealed that there is no challenge to the action taken under SARFAESI Act, 2002, therefore, the provisions under Section 34 of SARFAESI Act, 2002 would not apply. It is admitted position on record that there is no ad interim order granted in the aforementioned suit. Bank is at liberty to proceed further in accordance with law.
Savita 2016.08.10 14:17 I attest to the accuracy and integrity of this document High Court Chandigarh
CR No.4267 of 2016 (O&M)
{3}
Even otherwise for deciding the application under Order 7 Rule 11 CPC, the averments made in the plaint have to be seen but not the evidence.
In view of the aforementioned observations, the order under challenge is perfectly legal and justified, much less, the same cannot be said to have been passed without jurisdiction.
Accordingly, the revision petition stands dismissed.
| (AMIT RAWAL) JUDGE |
|
|---|---|
| August 03, 2016 | |
| savita | |
| Wheather speaking/reasoned | Yes/No |
| Whether Reportable | Yes/No |
Savita 2016.08.10 14:17 I attest to the accuracy and integrity of this document High Court Chandigarh
3 issues framed by the court
Whether Section 34 of SARFAESI Act 2002 bars civil court jurisdiction when no challenge was made to the action taken under said Act in the plaint.
Whether the averments in the plaint made the rejection of the plaint under Order 7 Rule 11 CPC legal and justified.
Whether the revision petition challenging the impugned order should be allowed.
2 provisions across 2 enactments
Canara Bank
Suresh Gulia and others
AMIT RAWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
