VYSYA CO OPERATIVE BANK LTD Vs. G KEERTHANA

JUDGEMENT

(1.) THIS civil revision petition under S. 115 of Code of Civil Procedure, by the second defendant in O. S. No. 82 of 2006. on the file of the Additional Civil Judge (Sr. Dn ). Tumkur, which is a suit for partition filed by the respondents 1 and 2, minors represented by their mother as guardian and next friend. impleading the third respondent-father as first defendant and the petitioner-Bank as the second defendant, wherein the trial Court has answered a preliminary issue regarding jurisdiction of the Civil Court raised at the instance of the petitioner, in terms of the order dated 5-4-2007 holding that the Court has jurisdiction to try the suit, is for setting aside this order in this revision petition.

(2.) IT appears, the petitioner-Bank had taken the defence that the suit itself is not tenable in view of the provisions of S. 34 of the securitisation and Reconstruction of Financial Assets and Enforcement of security Interest Act, 2002 (for short, the Act); that the petitioner-Bank, in whose favour the subject properties as mentioned in the schedule to the suit, which is also the subject-matter of suit for partition, had been mortgaged for the monies borrowed by the first defendant-father of the plaintiffs 1 and 2; that the bank had taken shelter under S. 13 of the Act for taking the possession of the properties; that it had already taken possession of the properties; that the very plaintiffs had made an attempt to get over such action by filing an application under S. 17 (1) of the Act before the Debts Recovery tribunal, Bangalore, but the Tribunal having rejected that appeal under S. 17 (1) of the Act, thereafter have filed the present suit, which is not a bona fide suit; that proceedings having already been taken before the Tribunal by the very party, Civil Court is barred from entertaining the suit. It is therefore urged in the petition that the finding recorded by the trial court that the suit is maintainable before the civil Court, is not tenable, calls for setting aside and dismissal of the suit etc.

(3.) SUBMISSION of Sri Ganapathi Hegde, learned counsel for the petitioner is that S. 34 of the Act is a clear bar for maintaining a civil suit in respect of the subject-matter which is governed under the provisions of the Act and in respect of which proceedings can have taken before the Debts Recovery Tribunal; that in fact against the very properties, proceedings have already been initiated and having failed before the Tribunal, a second round of litigation in the form of civil suit is not maintainable and, therefore, the answer on the preliminary issue regarding the maintainability of the suit for want of jurisdiction of Civil court should have been in favour of the petitioner and against the respondent.