NALINIBEN RAJNIKANT PATEL Vs. RASHMIKANT MANUBHAI AMIN

JUDGEMENT

(1.) The petitioners original plaintiffs filed Regular Civil Suit No.279 of 2008 in the Court of the learned Civil Judge (Senior Division), Vadodara for a declaration and injunction with regard to the suit properties and mainly contended that in the suit properties, they have their undivided shares. Permanent injunction was also sought restraining the defendants from taking any action or causing any loss or damage to the shares of the plaintiffs in respect of the suit properties.

(2.) The aforesaid properties, in the meantime, were auction sold by original defendant No. 3, present respondent No. 3 Bank of Baroda in favour of the auction purchaser, who is the appellant in the connected Letters Patent Appeal. Said defendant No. 3 bank filed an application (Exh. 15) and requested the Court that the plaint be rejected as the suit is barred by Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The said application (Exh. 15) filed by the 3rd defendant bank was allowed by the learned 8th Addl. Senior Civil Judge, Vadodara by judgment and order dated 29.4.2008 observing that the suit was not maintainable. The said order was unsuccessfully challenged in appeal by the petitioners original plaintiffs. Thereafter, they preferred a writ petition before this Court in Special Civil Application No. 8452 of 2008. This Court by order dated 8/9/2008, while noticed that though the prayer made in the application (Exh. 15) was to frame a preliminary issue with respect to jurisdiction of the Civil Court to entertain the suit, the Civil Court went a step further and also decided the issue against the plaintiffs without sufficient notice after framing the preliminary issue. Thus, the plaintiffs having not granted sufficient opportunity to represent their case, the orders dated 29/4/2008 and 30/5/2008 passed by the learned Civil Court were set aside and the Civil Court was requested to decide the question of jurisdiction as a preliminary issue after hearing both the sides afresh. Having noticed that the 3rd respondent Bank of Baroda had already proclaimed the auction for the properties in question and such auction was proposed to be held on 9/9/2008, the learned single Judge observed that though it would be open for the 3rd respondent bank to proceed further with receiving of bids and to hold the auction, no offer shall be accepted till the Civil Court decides the above question.

(3.) Thereafter, the Court below heard the parties and decided the preliminary issue relating to jurisdiction of the Court to try and entertain the suit. Having noticed the rival submissions, the learned 7th Add1. Senior Civil Judge, Vadodara, observed that the suit can be decided and adjudicated by the Debts Recovery Tribunal and the plaintiffs have not challenged the order and they cannot challenge any order of the DRT and the Recovery Officer, as a third party can also file appeal against the order of the Recovery Officer and when the Recovery Certificate has been issued after completing all the procedures, it cannot be modified or effected by the suit of any third party and thereby by order dated 31.3.2009, the learned Civil Judge declared that the Civil Court has no jurisdiction to try and entertain the suit and thereby ordered to return back the plaint to the plaintiffs for presentation before the proper forum. The appeal preferred against the said order in Civil Misc. Appeal No. 60 of 2009, having dismissed on 10.11.2009, the writ petition in question has been preferred by the petitioners original plaintiffs.