SYNDICATE BANK Vs. SHEELA AGGARWAL & ANR

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is filed by the petitioner, and which is the defendant no.2 in the suit, impugning the order of the trial court dated 4.4.2013 by which the trial court has refused to dismiss the suit under Section 11 of the Code of Civil Procedure, 1908 (CPC).

(2.) No doubt, the plaintiff in the suit/respondent no.1 herein had filed objections in the recovery proceedings before the Recovery Officer of the Debt Recovery Tribunal and which objections were dismissed by the recovery officer on 29.8.2007, and the appeal before the Debt Recovery Tribunal (DRT) was also dismissed on 4.9.2008 as also the further appeal to the Debt Recovery Appellate Tribunal, however, the issue is not with respect to whether the respondent no.1/plaintiff can obtain an interim order in the suit filed for claiming rights to suit property bearing industrial plot no.52, Sector 34, situated at Technology Park, Gurgaon (Haryana) but, whether the suit itself is maintainable. The respondent no.1/plaintiff claims right as the prior right holder in the suit property on account of an alleged agreement to sell executed prior to the mortgage of the suit property in favour of the Bank.

(3.) This aspect as to whether a suit lies in spite of dismissal of the objections filed in the recovery proceedings before the DRT has been dealt with by the Supreme Court recently in the judgment in the case of Nitin Gunwant Shah Vs. Indian Bank & Ors., 2012 8 SCC 305 and the Supreme Court in paras 37 and 38 clearly holds that even if objections are dismissed, an unsuccessful objector has right to file a civil suit to establish his right for possession of the property. These paras read as under:-