{"id":45888,"date":"2009-12-23T00:00:00","date_gmt":"2009-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-shruti-aggarwal-anr-vs-sh-subhash-kumar-ors-on-23-december-2009"},"modified":"2018-06-29T03:43:25","modified_gmt":"2018-06-28T22:13:25","slug":"smt-shruti-aggarwal-anr-vs-sh-subhash-kumar-ors-on-23-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-shruti-aggarwal-anr-vs-sh-subhash-kumar-ors-on-23-december-2009","title":{"rendered":"Smt. Shruti Aggarwal & Anr. vs Sh. Subhash Kumar & Ors. on 23 December, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
Smt. Shruti Aggarwal & Anr. vs Sh. Subhash Kumar & Ors. on 23 December, 2009<\/div>\n
Author: Manmohan Singh<\/div>\n
*          HIGH COURT OF DELHI : NEW DELHI\n\n+          IA No.8629\/2004, R.A. No. 8\/2005, RA No.9\/2005, IA\n           No.1259\/2007, I.A. No. 3372\/2005 and I.A. No. 1260\/2007\n           in CS (OS) No. 1472\/2004\n\n\nSmt. Shruti Aggarwal & Anr.                               ...Plaintiffs\n                     Through : Mr. Harish Malhotra, Sr. Adv. with Mr.\n                               Tanuj Khurana and Mr. Rajinder\n                               Kumar\n\n                                  Versus\n\nSh. Subhash Kumar & Ors.                               ...Defendants\n                   Through : Mr. Mike Desai, Adv. for D 1 and 2\n                             Mr. Jaswinder Singh, Adv. for D 3\n                             Mr. Sanjay Jain, Sr. Adv. with Mr. C.\n                             Mohan Rao and Ms. Ruchi Jain, Advs.\n                             for D 4 to D 7\n\nReserved on: September 10, 2009\nDecided on: December 23, 2009\n\nCoram:\n\nHON'BLE MR. JUSTICE MANMOHAN SINGH\n\n1. Whether the Reporters of local papers may\n   be allowed to see the judgment?                    No\n\n2. To be referred to Reporter or not?                 Yes\n\n3. Whether the judgment should be reported\n   in the Digest?                                     Yes\n\nMANMOHAN SINGH, J.\n<\/pre>\n
1.         By this order, I shall dispose of the following applications,<\/p>\n
details of which are given as under :\n<\/p>\n
     (i)   IA No.8629\/2004 (u\/Order XXXIX Rule 1-2 of the
\n           Code of Civil Procedure, 1908) filed by Plaintiff.\n<\/p><\/blockquote>\n
     (ii) RA No.8\/2005 (u\/Section          114 Code of Civil
\n          Procedure, 1908) filed by Plaintiff.\n<\/p><\/blockquote>\n
CS (OS) No. 1472\/2004                                         Page 1 of 24<\/span><\/p>\n
      (iii) RA No.9\/2005 (u\/Section 114 Code of Civil Procedure,
\n           1908) filed by Defendant No.3.\n<\/p><\/blockquote>\n
     (iv) IA No.3372\/2005 (u\/Order VII Rule 7 Code of Civil
\n          Procedure, 1908) filed by Defendant No.3.\n<\/p><\/blockquote>\n
     (v) IA No.1259\/2007 (u\/Order X Rule 2 Code of Civil
\n         Procedure, 1908) filed by Defendant Nos. 4 to 7.\n<\/p><\/blockquote>\n
     (vi) IA No.1260\/2007 (u\/Order XXXIX Rule 4 Code of
\n          Civil Procedure, 1908) filed by Defendants No.4-7.\n<\/p><\/blockquote>\n
2.          The present suit has been filed by the plaintiffs for a decree of<\/p>\n
permanent injunction restraining the defendant nos. 1 to 3 from taking<\/p>\n
any steps to dispossess them from the ground and first floor of BN-34,<\/p>\n
West Shalimar Bagh, Delhi (hereinafter referred to as the \u201esuit<\/p>\n
premises\u201f) in pursuance of notice dated 9th September, 2004 sent by the<\/p>\n
defendant no. 3 bank to defendant nos. 1 and 2 under Section 13 (2) of<\/p>\n
the Securitisation and Reconstruction of Financial Assets and<\/p>\n
Enforcement of Security Interest Act, 2002 (hereinafter referred to as<\/p>\n
\u201ethe Securitization Act\u201f) and also from disturbing or interfering with<\/p>\n
their peaceful possession of the same.\n<\/p>\n<\/p>\n
3.          The brief facts of the case are as follows. Defendant nos. 1<\/p>\n
and 2 are the owners of the suit premises. It is the plaintiffs\u201f claim that<\/p>\n
the said premises were leased out to them, i.e. the ground floor to<\/p>\n
plaintiff no. 1 and the first floor to plaintiff no. 2. It is the plaintiffs\u201f case<\/p>\n
that since the defendant nos. 1 and 2 were in dire need of money, they<\/p>\n
rented out the suit premises to the plaintiffs for a \u201esubstantial amount\u201f in<\/p>\n
addition to the rent of Rs. 2800\/- p.m. and Rs. 2500\/- p.m. in respect of<\/p>\n
CS (OS) No. 1472\/2004                                                  Page 2 of 24<\/span>
\n the ground and first floors respectively, the factum of rent being<\/p>\n
recorded in lease deed dated 1st September, 1998.<\/p>\n
4.          After the first year of tenancy, as per the plaintiffs, the<\/p>\n
defendants started misbehaving with the plaintiffs and threatened to<\/p>\n
throw them out of the suit premises. On 6th July, 2004 defendant no. 2<\/p>\n
along with two thugs came to the suit premises when plaintiff no. 1 was<\/p>\n
alone at home and started throwing out the furniture etc. and used<\/p>\n
abusive language as well, and also threatened to kill her entire family if<\/p>\n
the suit premises were not vacated by 26th July, 2004.<\/p>\n
5.          Plaintiff no. 1 has averred that she went to a nearby police<\/p>\n
chowki to complain of defendant no. 2\u201fs behavior, however, there she<\/p>\n
was to comply with defendant no. 2\u201fs order of vacating the suit<\/p>\n
premises. The plaintiff no. 1 then filed a suit being no. 417\/2002 for<\/p>\n
permanent injunction before the Sr. Civil Judge, Delhi where on the very<\/p>\n
first day of the hearing, defendant nos. 1 and 2\u201fs counsel gave a<\/p>\n
statement to the court that they would not dispossess the plaintiffs. In<\/p>\n
lieu of this, the plaintiffs withdrew their case.<\/p>\n
6.          Subsequently, the plaintiffs found out that defendant nos. 1<\/p>\n
and 2 had taken a loan from defendant no. 3 bank by mortgaging the suit<\/p>\n
premises and recovery proceedings against the said loan had been<\/p>\n
initiated by defendant no. 3 in pursuance of which a notice under Section<\/p>\n
13 (2) of the Securitisation Act had also been issued on 9th September,<\/p>\n
2004. It is the plaintiffs\u201f claim that defendant nos. 1 and 2 are<\/p>\n
CS (OS) No. 1472\/2004                                           Page 3 of 24<\/span>
\n deliberately not repaying the loan taken from the defendant no. 3 bank so<\/p>\n
as to create a situation whereby the plaintiffs would be forcibly<\/p>\n
dispossessed by defendant no. 3.\n<\/p>\n<\/p>\n
7.          The plaintiffs have stated in the plaint that since they are<\/p>\n
governed by the Delhi Rent Control Act and are statutory tenants, they<\/p>\n
cannot be thrown out by the connivance of the defendants as there is<\/p>\n
judicial precedent stating that the rights and obligations of a third party<\/p>\n
in respect of a property cannot be affected as such rights would be<\/p>\n
regulated by the incidence of tenancy following from the statute<\/p>\n
determining inter-se rights of the landlord and tenant. Since the plaintiffs<\/p>\n
are protected by the Delhi Rent Control Act, they claim that as per law<\/p>\n
they cannot be evicted by defendant no. 3. In these circumstances, the<\/p>\n
plaintiffs filed the present suit.\n<\/p>\n<\/p>\n
8.          On 6th February, 2006 I.A. No. 1529\/2006 was filed on behalf<\/p>\n
of Sh. Chandra Kant Misra, Smt. Deepika Misra and Sh. Vipin Kumar<\/p>\n
Misra, all three being partners in M\/s. Pragati Builders and Promoters.<\/p>\n
The said application had been filed for the impleadment of all four<\/p>\n
entities as proposed defendant nos. 4 to 7. Vide order dated 18th<\/p>\n
December, 2006 this court allowed the application and defendant nos. 4<\/p>\n
to 7 were consequently impleaded.\n<\/p>\n<\/p>\n
9.          In their defense, defendant nos. 1 and 2 have submitted that<\/p>\n
though due to financial trouble they rented out the ground and first floor<\/p>\n
of the suit premises to the plaintiffs, it was the plaintiffs and not the<\/p>\n
CS (OS) No. 1472\/2004                                             Page 4 of 24<\/span>
\n defendants who started being uncooperative, troublesome and stopped<\/p>\n
paying rent. The said defendants have contended that the present suit has<\/p>\n
come as a shock to them as they have never caused any hindrance to the<\/p>\n
plaintiffs and in fact, the plaintiffs are harassing them by filing frivolous<\/p>\n
suits against them. Further, the plaintiffs have no privity in the dealings<\/p>\n
of defendant nos. 1 and 2 with defendant no. 3 bank and cannot<\/p>\n
comment upon the same. The action of the defendant no. 3 against the<\/p>\n
defendant nos. 1 and 2 i.e. the sending of the notice dated 9th September,<\/p>\n
2004 and initiation of proceedings under the Securitisation Act has been<\/p>\n
challenged by defendant nos. 1 and 2 by way of a Securitization<\/p>\n
Application (S.A.) No. 50\/2005 filed before the Debt Recovery<\/p>\n
Tribunal-II, Delhi.\n<\/p>\n<\/p>\n
10.        Defendant no. 3 has filed a written statement stating that the<\/p>\n
plaintiffs\u201f suit is barred under Section 34 of the Securitisation Act as the<\/p>\n
said section bars Civil Courts from having any jurisdiction to entertain<\/p>\n
any proceeding or matter with regard to which the Debt Recovery<\/p>\n
Tribunal is empowered to act. The contention of defendant No.3 bank<\/p>\n
is that it has, under Section 13 (4) of the Securitization Act, already<\/p>\n
taken action as is evident in the Chief Metropolitan Magistrate\u201fs order<\/p>\n
dated 11th February, 2005 whereby a Receiver has been appointed to<\/p>\n
take over possession of the suit property for the purpose of handing over<\/p>\n
the same to the defendant No.3. In pursuance of this order, the Receiver<\/p>\n
issued a 10 days\u201f notice to the parties for compliance and for taking over<\/p>\n
possession as per the order. Therefore, the only remedy available to the<\/p>\n
CS (OS) No. 1472\/2004                                              Page 5 of 24<\/span>
\n plaintiffs is to file an appeal under Section 17 of the Securitization Act.<\/p>\n
The correct action for the plaintiffs would be to file an appeal under<\/p>\n
Section 17 of the Securitisation Act, as action has already been taken by<\/p>\n
the bank under Section 13 (4) of the said Act.\n<\/p>\n<\/p>\n
11.        Defendant nos. 4 to 7, i.e. the defendants impleaded later by<\/p>\n
virtue of their act of purchasing the suit premises after the serving of<\/p>\n
notice dated 9th September, 2004 have submitted a completely different<\/p>\n
version of the entire facts of the matter.\n<\/p>\n
12.        Defendant nos. 4 to 7 have submitted that the Securitisation<\/p>\n
Act, 2002 was enacted by the Legislature with the view to improve<\/p>\n
recovery of loans advanced by banks to individuals as well as<\/p>\n
corporations etc. The Securitization Act authorized banks to take<\/p>\n
possession of the \u201eSecurity Interest\u201f as defined therein. Defendant nos. 1<\/p>\n
and 2 had mortgaged the suit premises with the defendant no. 3 bank.<\/p>\n
After various notices for repayment and after satisfying itself that the<\/p>\n
asset was in fact a non-performing asset, defendant no. 3 lawfully and<\/p>\n
under the Securitization Act took possession of the suit premises and<\/p>\n
auctioned the same.\n<\/p>\n<\/p>\n
13.        The submission of defendant nos. 4 to 7 is that the present<\/p>\n
suit is a fraud on the defendant no. 3 bank as well as on this court. It is<\/p>\n
their submission that the present suit has been filed by the plaintiffs on<\/p>\n
behalf of and in collusion with defendant nos. 1 and 2 in order to prevent<\/p>\n
CS (OS) No. 1472\/2004                                            Page 6 of 24<\/span>
\n defendant no. 3 from taking physical possession of the suit premises, in<\/p>\n
turn preventing it from handing over the same to defendant nos. 4 to 7.<\/p>\n
14.        Further, the rent which is stated to be paid by the plaintiffs to<\/p>\n
defendant nos. 1 and 2 in lieu of the suit premises are averred by<\/p>\n
defendant nos. 4 to 7 to be fifteen times less (which is around Rs.<\/p>\n
40,000\/-) than the going rent for properties in the same area, which is a<\/p>\n
ludicrous assertion to have been made by the plaintiffs and the same was<\/p>\n
made only in order to bring the suit premises within the purview of the<\/p>\n
Delhi Rent Control Act.\n<\/p>\n<\/p>\n
15.        It has also been submitted that it is defendant nos. 1 and 2<\/p>\n
who are in actual and physical possession of the suit premises and not<\/p>\n
the plaintiffs. No valid lease deed has been executed and the lease deed<\/p>\n
asserted to have been executed is a fabrication. The defendant nos. 4 to 7<\/p>\n
have stated that before equitable mortgage was created in respect of the<\/p>\n
suit premises, a valuation report was obtained from a third party. As per<\/p>\n
this report dated 10th July, 2002 the suit premises are stated to be under<\/p>\n
the \u201eself occupation\u201f of the defendant nos. 1 and 2. Therefore, the<\/p>\n
present suit is nothing but a web of lies created by the plaintiffs and<\/p>\n
defendant nos. 1 and 2 so that this court affords protection to them from<\/p>\n
lawful eviction under the Securitization Act.\n<\/p>\n<\/p>\n
16.        I have heard learned counsel for all the parties. Since there<\/p>\n
are common facts in all the pending applications, the learned counsel for<\/p>\n
the parties have addressed their submissions accordingly. The defendant<\/p>\n
CS (OS) No. 1472\/2004                                             Page 7 of 24<\/span>
\n No.3 in its application being IA No.3372\/2005 has made a prayer for<\/p>\n
rejection of the plaint as the suit according to it is barred under Section<\/p>\n
34 of the Securitization Act, 2002.\n<\/p>\n
17.        I.A. No. 3372\/2005 has been filed by defendant no. 3 praying<\/p>\n
for rejection of the plaint. Defendant no. 3 has submitted that the<\/p>\n
plaintiff\u201fs suit is barred by Section 34 of the Securitisation Act. The said<\/p>\n
section provides the following :\n<\/p>\n
             “Section 34: Civil Court not to have jurisdiction
\n             No civil court shall have jurisdiction to entertain any suit or
\n             proceeding in respect of any matter which a Debts Recovery
\n             Tribunal or the Appellate Tribunal is empowered by or
\n             under this Act to determine and no injunction shall be
\n             granted by any court or other authority in respect of any
\n             action taken or to be taken in pursuance of any power
\n             conferred by or under this Act or under the Recovery of
\n             Debts Due to Banks and Financial Institutions Act, 1993.”\n<\/p><\/blockquote>\n
18.        Defendant no. 3 has referred to this court\u201fs order dated 17th<\/p>\n
December, 2004 wherein this court held as follows :<\/p>\n
             “…the plaintiff shall not be dispossessed from the suit
\n             premises except by following the due process of law. It is
\n             made clear that if in the reckoning of defendant no. 3 they
\n             are entitled to take possession of the suit property under the
\n             provisions of “The Securitisation and Reconstruction of
\n             Financial Assets and Enforcement of Security Interest Act,
\n             2002 and the Security Interest (Enforcement) Rules, 2002″,
\n             they will be free to do so.”\n<\/p><\/blockquote>\n
19.        However, by the next order dated 25th January, 2005 this<\/p>\n
court directed that the plaintiffs\u201f possession would not disturbed for a<\/p>\n
period of two weeks to enable the plaintiffs to file an appeal under<\/p>\n
Section 17 of the Act in the Debt Recovery Tribunal. The said two<\/p>\n
CS (OS) No. 1472\/2004                                             Page 8 of 24<\/span>
\n weeks ended on 9th February, 2005. On 11th February, 2006 defendant<\/p>\n
no. 3 took action under Section 13 (4) of the Act.\n<\/p>\n<\/p>\n
20.        The following are the main contentions of the plaintiffs:<\/p>\n
i)         That the tenant cannot be dispossessed from the premises<\/p>\n
without due process of law. According to the plaintiffs the sale was<\/p>\n
conducted by the defendant No.3 to the defendants No.4 to 7 \u201eas is<\/p>\n
where is basis\u201f and the purchasers were aware that the plaintiffs are in<\/p>\n
possession of the said property as tenant thereof.<\/p>\n
ii)        The defendants No.2 to 7 cannot claim possession from the<\/p>\n
plaintiffs in the present proceedings without taking recourse of the<\/p>\n
provisions of Delhi Rent Control Act and the plaintiffs cannot be<\/p>\n
straightaway dispossessed.\n<\/p>\n
iii)       The plaintiffs in their individual capacity being tenant has<\/p>\n
filed the suit for securing their possession which can only be secured by<\/p>\n
the civil court and Section 31(e) of the Securitisation & Reconstruction<\/p>\n
of Financial Assets and Enforcement of Security Interest Act, 2002 lays<\/p>\n
down that the provisions of this Act do not apply to any conditional sale,<\/p>\n
hire purchase or lease or any other contract in which no security interest<\/p>\n
has been created.\n<\/p>\n
iv)        That the right of the statutory tenant cannot be affected and<\/p>\n
the tenant cannot be thrown out summarily by secured creditors as per<\/p>\n
settled law and this Court in such cases has no jurisdiction to pass orders<\/p>\n
or direction affecting the rights of the tenant protected, controlled and<\/p>\n
regulated by the Rent Act.\n<\/p>\n
\nCS (OS) No. 1472\/2004                                            Page 9 of 24<\/span>\n<\/p>\n
 v)            That the notice under Section 13(2) of the Act taking<\/p>\n
possession of the property is bad as the remedy of appeal under Section<\/p>\n
17(i) of the Act is not available to the plaintiffs who are bonafide<\/p>\n
tenants. The right of the appeal accrues only after the possession has<\/p>\n
been taken in terms of Section 13(4) of the Act. In case the possession is<\/p>\n
taken in the present case by the defendant No.3, it would affect the rights<\/p>\n
of the plaintiffs who are statutory tenant. The right of the plaintiffs<\/p>\n
cannot be affected by the act of third party as held in the various judicial<\/p>\n
proceedings by the Supreme Court and other courts reported in AIR<\/p>\n
1981 SC 981, AIR 2001 Delhi 175, AIR 1997 Patna 160, AIR 2008<\/p>\n
Calcutta 9.\n<\/p>\n
21.           In order to consider the submission of the plaintiffs, certain<\/p>\n
factual aspects of the matter are necessary to be mentioned here. The<\/p>\n
plaintiffs have filed the present suit for permanent injunction with the<\/p>\n
following prayer:\n<\/p>\n
               (a)    pass a decree for permanent injunction
\n                      whereby restraining the defendant no.1, 2
\n                      & 3 from taking any steps with regard to
\n                      the Ground Floor & First Floor of the
\n                      property     bearing    No.BN-34      West
\n                      Shalimar Bagh, Delhi, which is in
\n                      possession of the plaintiffs herein;\n<\/p>\n
               (b)    pass the decree of permanent injunction
\n                      against the defendants whereby restraining
\n                      them from taking any steps with regard to
\n                      the property in possession of the plaintiffs
\n                      in pursuance to the alleged notice dt.\n<\/p>\n
                      9.9.2004 under Section 13(2) of the
\n                      Securitisation & Reconstruction of
\n                      Financial Assets & Enforcement of
\n                      Security Interest Act, 2002;\n<\/p>\n
               (c)    pass a decree for permanent injunction
\n                      against the defendant no.1, 2 & 3 for<\/p>\n
CS (OS) No. 1472\/2004                                                Page 10 of 24<\/span>
\n                    dispossession of the plaintiffs herein as
\n                   well as restraining them to interfering into
\n                   peaceful and lawful possession of the
\n                   ground floor & first floor of the property
\n                   bearing No.BN-34, West Shalimar Bagh,
\n                   Delhi.”\n<\/p>\n
22.        The suit as well as the interim application being IA<\/p>\n
No.8629\/2004 was listed before Court on 17.12.2004 when the summons<\/p>\n
were issued to the defendants in the main suit and the ex-parte ad-<\/p>\n
interim injunction was granted against the defendants to the following<\/p>\n
effect:\n<\/p>\n
                      “In the meanwhile, the plaintiff shall
\n            not be dispossessed from the suit premises
\n            except by following the due process of law. It is
\n            made clear that if in the reckoning of defendant
\n            No.3 they are entitled to take possession of the
\n            suit property under the provisions of “The
\n            Securitisation and Reconstruction of Financial
\n            Assets and Enforcement of Security Interest Act,
\n            2002 & The Security Interest (Enforcement)
\n            Rules, 2002″, they will be free to do so.”\n<\/p><\/blockquote>\n
23.        On 25.1.2005 the liberty was granted to the plaintiff to take<\/p>\n
recourse to Section 17 of the Securitization Act and to file an appeal to<\/p>\n
protect his right. However, it was ordered that the plaintiffs\u201f possession<\/p>\n
will not be disturbed for a period of two weeks from that date.<\/p>\n
Thereafter, the plaintiffs filed the review application No.8\/2005 and the<\/p>\n
interim order was continued.      The main contention in the review<\/p>\n
application was that Section 17 of the Act would only apply in the<\/p>\n
circumstances where the secured creditors have taken the specific<\/p>\n
possession of the property in question. Since the possession in the above<\/p>\n
subject matter is not taken by the defendant No.-3, therefore, the review<\/p>\n
CS (OS) No. 1472\/2004                                             Page 11 of 24<\/span>
\n was filed for recalling the order dated 25.1.2005.<\/p>\n
24.           The defendant No.3 thereafter filed the application under<\/p>\n
Order 7 Rule 11 CPC being IA No.3372\/2005 for rejection of the plaint<\/p>\n
mainly on the ground that the suit filed by the plaintiffs is barred by law<\/p>\n
and is not maintainable. The defendant No.3 also filed R.A.9\/2005 for<\/p>\n
review of order dated 18.2.2005 wherein the relief of interim order<\/p>\n
granted on 25.1.2005 was continued in R.A.8\/2005 filed by the<\/p>\n
plaintiffs.\n<\/p>\n
25.           In another application being IA No.1259\/2007 was filed by<\/p>\n
the defendants No.4 to 7 for examination of the plaintiff under Order 10<\/p>\n
Rule 2 CPC mainly on the ground that the present suit is a fraud<\/p>\n
committed by the plaintiffs with the collusion of defendants No.1 & 2 as<\/p>\n
the plaintiffs and defendants No.1 & 2 CPC are relatives and the said<\/p>\n
fact has not been disclosed by the plaintiffs in the plaint. The defendants<\/p>\n
No.4 to 7 also filed the application under Order 39 Rule 4 CPC being IA<\/p>\n
No.1260\/2007 for vacation of the interim order dated 17.12.2004 and<\/p>\n
7.3.2005. All the applications were heard together.<\/p>\n
26.           It appears from the facts that defendant no. 1 applied for a<\/p>\n
loan from defendant no. 3 while offering the suit premises as security.<\/p>\n
The suit premises were valued by a third party valuer who in his report<\/p>\n
dated 10th July, 2002 stated that the suit premises were self occupied by<\/p>\n
defendant nos. 1 and 2.\n<\/p>\n<\/p>\n
27.           It is also not in dispute that when the defendant No.1 applied<\/p>\n
for loan from the defendant No.3 offering house No.BN-34, Shalimar<\/p>\n
CS (OS) No. 1472\/2004                                            Page 12 of 24<\/span>
\n Bagh, as security the said property was valued by the approved valuer<\/p>\n
who gave a report on 10th of July, 2002 wherein it was mentioned that<\/p>\n
the suit property was under self-occupation of the defendants No.1 & 2.<\/p>\n
The defendant No.1 in his application for credit facilities dated<\/p>\n
14.8.2003 specified that the suit property is being provided as collateral<\/p>\n
security and is under his self-occupation. He also filed the application<\/p>\n
dated 25.8.2003 stating that the suit property is under his self-occupation<\/p>\n
and shall not be given on rent. Even in Income Tax return submitted by<\/p>\n
the owner of the property defendant No.1 does not show any income<\/p>\n
from the house property.     After satisfaction of the above, the bank<\/p>\n
granted the credit facility to the defendant No.1.          However, the<\/p>\n
defendant no. 3 bank declared the suit premises to be a non-performing<\/p>\n
asset on 31st August, 2004 as the defendant nos. 1 and 2 were unable to<\/p>\n
pay back the loan amount. As a consequence, defendant no. 3 issued a<\/p>\n
notice under Section 13 (2) of the Securitization Act to the defaulting<\/p>\n
defendants, who conveyed that they were suffering financial stress and<\/p>\n
shortage of funds by their letter dated 20th October, 2004. The bank<\/p>\n
granted the defendant nos. 1and 2 one month time vide their letter dated<\/p>\n
6th November, 2004. Since no payment was made despite the said<\/p>\n
correspondence, the defendant no. 3 bank issued a notice to defendant<\/p>\n
nos. 1 and 2 under Section 13 (4) of the Securitization Act on 27 th<\/p>\n
December, 2004. The suit premises were auctioned and bought by<\/p>\n
defendant nos. 4 to 7 on 11th June, 2005 and sale certificate was issued in<\/p>\n
their favour on 28th June, 2005.\n<\/p>\n
CS (OS) No. 1472\/2004                                           Page 13 of 24<\/span>\n<\/p>\n
 28.        It appears from the entire pleadings and submissions of the<\/p>\n
defendants No.3 to 7, that defendant Nos.1 and 2 in order to avoid<\/p>\n
making payment to defendant No.3 bank have firstly filed the FIR<\/p>\n
against the alleged goons of plaintiff No.1 alleging serious threat to life<\/p>\n
and then filed the suit in the court of Senior Civil Judge wherein consent<\/p>\n
order dated 9th September, 2004 was obtained wherein it was stated that<\/p>\n
the plaintiffs will not be dispossessed without the due process of law.<\/p>\n
It is pertinent to mention that the notice under Section 13(2) of the<\/p>\n
Securitization Act, 2002 was issued on 9th September, 2004. Thus, it is<\/p>\n
clear that the present suit is a collusive suit between the plaintiffs and<\/p>\n
defendant Nos.1 and 2. As far as the FIR is concerned, no action as of<\/p>\n
today has been taken by the plaintiff No.1 about the serious allegation<\/p>\n
made therein.\n<\/p>\n<\/p>\n
29.        Admittedly, the plaintiff No.1 who is in possession of ground<\/p>\n
floor as alleged by her is the sister-in-law of defendant No.2. Similarly,<\/p>\n
the plaintiff No.2 is the father-in-law of defendant No.2 and they are<\/p>\n
close relatives and the plaintiff did not disclose the same in the plaint as<\/p>\n
well as at the time of obtaining the interim order. The plaintiffs are<\/p>\n
relatives of defendant Nos.1 and 2, still, the said important fact has been<\/p>\n
concealed from this Court, which is a serious matter and the present<\/p>\n
suit ought to be dismissed on this ground itself.\n<\/p>\n<\/p>\n
30.        It appears that defendants No.1 and 2 were aware on the date<\/p>\n
of filing of the present suit that the same was not maintainable under<\/p>\n
Section 34 of the Securitization Act, 2002 so the plaintiffs have<\/p>\n
CS (OS) No. 1472\/2004                                            Page 14 of 24<\/span>
\n apparently been fighting a proxy war on behalf of defendants No.1 and<\/p>\n
2. The defendants No.4 to 7 have already purchased the suit property<\/p>\n
from defendant No.3 and the sale certificate in this regard has already<\/p>\n
been issued. Receiver has been appointed for the purpose of possession.<\/p>\n
In view of these facts, I find that there is no force in the submission of<\/p>\n
the plaintiffs that no appeal under Section 17 of the Act is maintainable.<\/p>\n
Even the suit filed by the plaintiffs in the court of Chief Metropolitan<\/p>\n
Magistrate, wherein the interim order was passed, has been withdrawn<\/p>\n
by the plaintiffs. From the entire gamut of the matter, it appears that the<\/p>\n
plaintiffs have come before this Court with unclean hands.<\/p>\n
31.        There is no dispute as far as the proposition of law is<\/p>\n
concerned and this court is fully agreeable with the finding of the<\/p>\n
Supreme Court in the case of Dev Raj Dogra and Ors. Vs. Gyan<\/p>\n
Chand Jain and Ors.; AIR 1981 SC 981 wherein it has been held that<\/p>\n
in execution proceedings after decree has been passed, if there is<\/p>\n
failure to pay the decreetal amount in terms of the decree and the<\/p>\n
premises were sold in public action then only the symbolic possession<\/p>\n
can be given. Similar view has been taken in other decisions referred by<\/p>\n
the learned counsel for the plaintiffs. However, the situation in the<\/p>\n
present matter is entirely different as elucidated in paras 27 to 29 of this<\/p>\n
order.\n<\/p>\n<\/p>\n
32.         I do not agree with the submission of the plaintiffs that the<\/p>\n
review application being R.A. No.8\/2005 is maintainable as vide order<\/p>\n
dated 25.1.2005, this Court was pleased to pass the following order:<\/p>\n
CS (OS) No. 1472\/2004                                            Page 15 of 24<\/span>\n<\/p>\n
                        “…..The plaintiff is at liberty to take
\n             recourse to Section 17 of the Securitization Act
\n             and file an appeal to protect his rights. However,
\n             with a view to enable the plaintiff to file an
\n             appeal under Section 17 of the Act, his
\n             possession will not be disturbed for a period of
\n             two weeks from today.”\n<\/p><\/blockquote>\n
33.        The plaintiffs did not choose to file the appeal under Section<\/p>\n
17 of the Act rather the plaintiffs filed the review application for<\/p>\n
recalling the order dated 25.1.2005. The defendant No.3 in exercise of<\/p>\n
powers conferred under sub-section 4 of Section 13 for taking the<\/p>\n
possession applied to the Court of Chief Metropolitan Magistrate thereby<\/p>\n
inter alia for appointment of receiver for taking over the possession of<\/p>\n
the suit property. Court of Chief Metropolitan Magistrate after going<\/p>\n
through the same and having heard, appointed a court receiver for taking<\/p>\n
over the possession of secured asset i.e. suit property.      The receiver<\/p>\n
thereafter sent a notice on 17.2.2005 to the borrowers as per order dated<\/p>\n
11.2.2005 wherein the receiver is required to give ten days\u201f notice to the<\/p>\n
parties in advance prior to taking over the possession. I agree with the<\/p>\n
contention of the learned counsel for the defendants No.3 to 7 that the<\/p>\n
protection sought by the plaintiffs under Section 31(e) of the Act does<\/p>\n
not help the case of the plaintiffs as a plain reading of Section 31 of the<\/p>\n
Act lays down that it shall not apply if security interest has been created.<\/p>\n
The said provision reads as under :\n<\/p>\n
             “(e)      any conditional sale, hire purchase or
\n             lease or any other contract in which no
\n             Security Interest has been created.”\n<\/p>\n
           As per order of the Chief Metropolitan Magistrate, the<\/p>\n
CS (OS) No. 1472\/2004                                             Page 16 of 24<\/span>
\n defendant No.3 has already taken action under Section 13(4) of the Act<\/p>\n
wherein the Court has appointed the receiver to take over the possession<\/p>\n
of the suit property. Therefore, this Court vide order dated 25.1.2005<\/p>\n
has rightly asked the plaintiff to file the appeal under Section 17 of the<\/p>\n
Act.\n<\/p>\n
34.         Vide order dated 7.3.2005 while considering the review<\/p>\n
application No.8\/2005 filed by the plaintiffs wherein the parties agreed<\/p>\n
that the plaintiffs may be given liberty to move the concerned DRT for<\/p>\n
appropriate relief against their dispossession from the premises in<\/p>\n
question by the defendant No.3.       The Court also observed that the<\/p>\n
interim order shall continue till the time DRT returns a finding as to<\/p>\n
whether it has jurisdiction or not to entertain the plaintiffs\u201f application.<\/p>\n
The DRT, as informed by the defendant No.3, after hearing was of the<\/p>\n
opinion that only DRT has the jurisdiction in the matter.<\/p>\n
35.         This Court vide order dated 10.4.2008, on raising the<\/p>\n
objection by the defendants No.4 to 7 that the plaintiffs are not in actual<\/p>\n
physical possession appointed the Local Commissioner directing that he<\/p>\n
should proceed to visit the ground and first floor of the premises for a<\/p>\n
study of the occupation and physical possession of the aforesaid portion<\/p>\n
of the suit premises.\n<\/p>\n
36.         The report of the Local Commissioner was filed on 30.4.2008<\/p>\n
which indicates that in fact the defendant No.2 is in possession of the<\/p>\n
property.   The plaintiffs at the time of executing the commission<\/p>\n
proceeding even failed to identify the portrait of the elderly couple<\/p>\n
CS (OS) No. 1472\/2004                                            Page 17 of 24<\/span>
\n which was hanging on the wall of the living room of the ground floor.<\/p>\n
37.        Plaintiff No.1\u201fs mother also failed to disclose whether the<\/p>\n
cable connection is available or not. It also appears from the report that<\/p>\n
the first floor was not in use or occupation of any person for the last<\/p>\n
several months.    As per the report where it is mentioned that despite the<\/p>\n
plaintiffs being tenant for more than about five to six years as per their<\/p>\n
statement, the explanation of these locked rooms\/cupboards were still in<\/p>\n
the custody and possession of the owner\/landlord even though the entire<\/p>\n
premises was under the tenancy of the plaintiffs was unclear.<\/p>\n
38.        The above said circumstances demolish the case of the<\/p>\n
plaintiffs and rather confirm the statement of defendant No.1 which was<\/p>\n
made by owner before defendant No.3 that the property in question is in<\/p>\n
exclusive possession of defendants No.1 and 2.\n<\/p>\n
39.        I do not agree with the learned counsel for the plaintiffs that<\/p>\n
the plaintiffs are in fact statutory tenant of the defendants No.1 & 2.<\/p>\n
The reliance of the two separate leased agreements executed on 1.9.1998<\/p>\n
cannot be accepted as no explanation has come forward why two<\/p>\n
separate agreements were executed in respect of the ground and first<\/p>\n
floor, these are admittedly unregistered documents. Further, the ground<\/p>\n
and first floor are joint and first floor is integrated into the ground floor,<\/p>\n
hence there could not have been a separate tenancy agreement in respect<\/p>\n
of first floor. The said deeds seem to have been created out of thin air in<\/p>\n
order to avoid payment of the loan taken by defendant nos. 1 and 2 from<\/p>\n
defendant no. 3.\n<\/p>\n
CS (OS) No. 1472\/2004                                             Page 18 of 24<\/span>\n<\/p>\n
 40.        Learned counsel for the plaintiffs has relied upon the case of<\/p>\n
M\/s. Mardia Chemicals Ltd. v. UOI & Ors., JT<\/a> 2004 (4) SC 308 by<\/p>\n
the plaintiffs in RA 8\/2005, particularly para 48 of the decision wherein<\/p>\n
while seeking review of this court\u201fs order dated 25 th January, 2005 to the<\/p>\n
extent of its direction to the plaintiffs to take recourse under Section 17<\/p>\n
of the Securitization Act.\n<\/p>\n
41.        The said para does not help the case of the plaintiffs in view<\/p>\n
of the finding in the earlier para. Rather, the subsequent para 50 of the<\/p>\n
same judgment goes against the plaintiffs which reads as under :<\/p>\n
             “50. It has also been submitted that an appeal is
\n             entertainable before the Debts Recovery Tribunal only after
\n             such measures as provided in sub-section (4) of Section 13
\n             are taken and Section 34 bars to entertain any proceeding in
\n             respect of a matter which the Debts Recovery Tribunal or
\n             the Appellate Tribunal is empowered to determine. Thus
\n             before any action or measure is taken under sub-section (4)
\n             of Section 13, it is submitted by Mr Salve, one of the
\n             counsel for the respondents that there would be no bar to
\n             approach the civil court. Therefore, it cannot be said that no
\n             remedy is available to the borrowers. We, however, find
\n             that this contention as advanced by Shri Salve is not correct.
\n             A full reading of Section 34 shows that the jurisdiction of
\n             the civil court is barred in respect of matters which a Debts
\n             Recovery Tribunal or an Appellate Tribunal is empowered
\n             to determine in respect of any action taken “or to be taken in
\n             pursuance of any power conferred under this Act”. That is
\n             to say, the prohibition covers even matters which can be
\n             taken cognizance of by the Debts Recovery Tribunal though
\n             no measure in that direction has so far been taken under
\n             sub-section (4) of Section 13. It is further to be noted that
\n             the bar of jurisdiction is in respect of a proceeding which
\n             matter may be taken to the Tribunal. Therefore, any matter
\n             in respect of which an action may be taken even later on, the
\n             civil court shall have no jurisdiction to entertain any
\n             proceeding thereof. The bar of civil court thus applies to all
\n             such matters which may be taken cognizance of by the
\n             Debts Recovery Tribunal, apart from those matters in which<\/p>\n
CS (OS) No. 1472\/2004                                           Page 19 of 24<\/span>
\n             measures have already been taken under sub-section (4) of
\n            Section 13.”\n<\/p><\/blockquote>\n
42.        Clearly, the above-quoted judgment indicates that Section 34<\/p>\n
of the Act will operate as bar against action taken as well as to be taken.<\/p>\n
The plaintiffs were given two weeks time to file an appeal in the Debts<\/p>\n
Recovery Tribunal, during which their possession was not to be<\/p>\n
disturbed and no action taken by the defendants. It was only on the<\/p>\n
expiry of those two weeks that defendant no. 3 took action under Section<\/p>\n
13 (4) vide its notice dated 27th December, 2004, which it had been<\/p>\n
permitted to do vide this court\u201fs order dated 17th December, 2004. The<\/p>\n
plaintiffs were not to be dispossessed “except by following the due<\/p>\n
process of law”. It seems to me that such due process, after the restricted<\/p>\n
period of two weeks expired, was duly taken up by defendant no. 3.<\/p>\n
43.        It has been submitted by defendant no. 3 that on 7 th March,<\/p>\n
2005 this court passed an order directing the interim order of 25th<\/p>\n
January, 2005 to continue till the time the Debts Recovery Tribunal<\/p>\n
returned a finding as to whether it has jurisdiction to entertain the<\/p>\n
plaintiff\u201fs application (filed belatedly, i.e. much after the order of 17<\/p>\n
December, 2004). On 7th April, 2005 arguments were partly heard and<\/p>\n
the matter was listed on 13th April, 2005 when it was again heard in part<\/p>\n
and listed for 26th April, 2005. Notices in the matter were directed to be<\/p>\n
served at this hearing. It is the contention of defendant no. 3 that vide<\/p>\n
this order, the Debts Recovery Tribunal took cognizance of the matter<\/p>\n
and assumed jurisdiction.\n<\/p>\n
\nCS (OS) No. 1472\/2004                                           Page 20 of 24<\/span>\n<\/p>\n
 44.        Reference has been made in para 16 of the plaint to the notice<\/p>\n
dated 9th September, 2004 sent by defendant no. 3 to defendant no. 1 and<\/p>\n
2 for payment of Rs. 98,64,986.99\/- under Section 13 (2) of the<\/p>\n
Securitization Act. As per the plaintiffs, it is because the existence of<\/p>\n
this notice came to their knowledge that they have filed the present suit,<\/p>\n
as they apprehend that defendant nos. 1 and 2 are intentionally not<\/p>\n
paying defendant no. 3 in order to evict the plaintiffs under the Act. The<\/p>\n
plaintiffs have then submitted that they are statutory tenants protected<\/p>\n
under the Delhi Rent Control Act. It is the submission of defendant no. 3<\/p>\n
that the plaintiffs are relatives of defendant no. 1 and 2 and have filed the<\/p>\n
instant suit in collusion with the same to prevent defendant no. 3 from<\/p>\n
taking over the suit premises in accordance with the Act as defendant<\/p>\n
nos. 1 and 2 have defaulted in repayment of the borrowed amount.<\/p>\n
45.        The relevant principles regarding ouster of jurisdiction of<\/p>\n
Civil Court were laid down by the Apex Court in Dhulabhai v. State of<\/p>\n
MP, AIR 1969 Supreme Court 78. The relevant portion of the said<\/p>\n
judgment reads as under :-\n<\/p>\n
             “54. …\n<\/p><\/blockquote>\n
                       (1) Where the statute gives a finality to the orders
\n                       of the special tribunals the Civil Court’s
\n                       jurisdiction must be held to be excluded if there is
\n                       adequate remedy to do what the Civil Courts
\n                       would normally do in a suit. Such provision,
\n                       however, does not exclude those cases where the
\n                       provisions of the particular Act have not been
\n                       complied with or the statutory tribunal has not
\n                       acted in conformity with the fundamental
\n                       principles of judicial procedure.\n<\/p><\/blockquote>\n
CS (OS) No. 1472\/2004                                            Page 21 of 24<\/span><\/p>\n
                     (2) Where there is an express bar of the
\n                    jurisdiction of the court, an examination of the
\n                    scheme of the particular Act to find the adequacy
\n                    or the sufficiency of the remedies provided may be
\n                    relevant but is not decisive to sustain the
\n                    jurisdiction of the civil court.\n<\/p><\/blockquote>\n
                    Where there is no express exclusion the
\n                    examination of the remedies and the scheme of the
\n                    particular Act to find out the intendment becomes
\n                    necessary and the result of the inquiry may be
\n                    decisive. In the latter case it is necessary to see if
\n                    the statute creates a special right or a liability and
\n                    provides for the determination of the right or
\n                    liability and further lays down that all questions
\n                    about the said right and liability shall be
\n                    determined by the tribunals so constituted, and
\n                    whether remedies normally associated with
\n                    actions in Civil Courts are prescribed by the said
\n                    statue or not.\n<\/p><\/blockquote>\n
                    (3) Challenge to the provisions of the particular
\n                    Act as ultra vires cannot be brought before
\n                    Tribunals constituted under that Act. Even the
\n                    High Court cannot go into that question on a
\n                    revision or reference from the decision of the
\n                    Tribunals.\n<\/p><\/blockquote>\n
                    (4) When a provision is already declared
\n                    unconstitutional or the constitutionality of any
\n                    provision is to be challenged, a suit is open. A writ
\n                    of certiorari may include a direction for refund if
\n                    the claim is clearly within the time prescribed by
\n                    the Limitation Act but it is not a compulsory
\n                    remedy to replace a suit.\n<\/p><\/blockquote>\n
                    (5) Where the particular Act contains no
\n                    machinery for refund of tax collected in excess of
\n                    constitutional limits or illegally collected a suit
\n                    lies.\n<\/p><\/blockquote>\n
                    (6) Questions of the correctness of the assessment
\n                    apart from its constitutionality are for the decision
\n                    of the authorities and a civil suit does not lie if the
\n                    orders of the authorities are declared to be final or
\n                    there is an express prohibition in the particular
\n                    Act. In either case the scheme of the particular Act
\n                    must be examined because it is a relevant enquiry.\n<\/p><\/blockquote>\n
CS (OS) No. 1472\/2004                                          Page 22 of 24<\/span><\/p>\n
                       (7) An exclusion of the jurisdiction of the Civil
\n                      Court is not readily to be inferred unless the
\n                      conditions above set down apply.”\n<\/p><\/blockquote>\n
46.        Examining the facts of the present case in this light now, it<\/p>\n
appears that Section 34 of the Securitization Act bars the civil court from<\/p>\n
adjudicating upon any matter which is pending before the Debts<\/p>\n
Recovery Tribunal. A notice under Section 13 (2) of the Securitization<\/p>\n
Act with regard to default in the repayment of the loan taken by<\/p>\n
defendant nos. 1 and 2 was sent to the said defendants by the defendant<\/p>\n
no. 3 bank as well as due to the finding given in para 27 to 29 of my<\/p>\n
judgment. Correspondence was exchanged between the parties, and due<\/p>\n
to further default notice under Section 13 (4) was issued on 27 th<\/p>\n
December, 2004 after the same had been impliedly allowed by this<\/p>\n
court\u201fs order dated 17th December, 2004.\n<\/p>\n
47.        In view of all these facts, it seems to be that the Debts<\/p>\n
Recovery Tribunal is taking cognizance of the matter.                More<\/p>\n
importantly, in light of the plaintiffs awareness of the notice under<\/p>\n
Section 13 (2) of the Act as well as the fact that it is the plaintiffs who<\/p>\n
referred the decision of Mardia Chemicals case (supra), it seems to me<\/p>\n
that the plaintiffs\u201f suit barred under Section 34 of the Securitization Act<\/p>\n
and is not maintainable.\n<\/p>\n
48.        In view of the afore-stated observation, I hereby allow the<\/p>\n
application under Order VII Rule 11 of the CPC. Consequently, I reject<\/p>\n
the plaint being barred by law. All pending applications also stand<\/p>\n
disposed of in view of the common order passed in the matter.<\/p>\n
CS (OS) No. 1472\/2004                                           Page 23 of 24<\/span>\n<\/p>\n
           No costs.\n<\/p>\n<\/p>\n
                        MANMOHAN SINGH, J.\n<\/p>\n
DECEMBER 23, 2009
\nnn<\/p>\n
CS (OS) No. 1472\/2004              Page 24 of 24<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Smt. Shruti Aggarwal & Anr. vs Sh. Subhash Kumar & Ors. on 23 December, 2009 Author: Manmohan Singh * HIGH COURT OF DELHI : NEW DELHI + IA No.8629\/2004, R.A. No. 8\/2005, RA No.9\/2005, IA No.1259\/2007, I.A. No. 3372\/2005 and I.A. No. 1260\/2007 in CS (OS) No. 1472\/2004 Smt. Shruti Aggarwal & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-45888","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSmt. Shruti Aggarwal & Anr. vs Sh. 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