POTHYS Vs. S.A. KUMAR

JUDGEMENT

(1.) The Civil Revision Petition is filed challenging the Order passed in I.A. No.505 of 2018 in O.S. No.290 of 2017, dtd. 7/11/2019 by the IV Additional District & Sessions Judge, Coimbatore whereby dismissed the Petition filed under Order 7, Rule 11 of Civil Procedure Code seeking to reject the Plaint filed by the Plaintiff.

(2.) The Revision Petitioner is the 6th Defendant and the Auction Purchaser of the property. The Suit O.S. No.290 of 2017 was filed by the 1st Respondent/Plaintiff, thereafter I.A. No.505 of 2018 in O.S. No.290 of 2017 was filed by the Revision Petitioner/6th Defendant to reject the Plaint filed by the 1st Respondent/Plaintiff and the same was dismissed by the Trial Court. Challenging the said Order, the Civil Revision Petition has been filed. I.A. No.505 of 2018 was filed to reject the Plaint, since the Suit is barred under SARFAESI Act. The learned Senior Counsel appearing for the Petitioner submitted that there was a Sale Agreement on 4/3/2009 between the 1st Respondent/Plaintiff and the Respondents 2 to 5. The total Sale consideration was a sum of Rs.2,34,00,000.00 (Rupees Two Crores and Thirty Four Lakhs Only) out of which Rs.1.17 crores were paid and as per the Sale Agreement, the sale has to be completed on 31/8/2009. The Petitioner is the Auction Purchaser in the Bank sale and the Sale consideration was a sum of Rs.2.25 crores. The Sale Certificate, dtd. 8/11/2010 was issued and the subject matter of the property was already Mortgaged with the State Bank of India. The amendment in the SARFAESI Act, came into effect on 4/11/2016, according to which under Rule 8(5)(d) of the Security Interest (Enforcement) Rules, 2002 the property can be sold by Private treaty. The learned Senior Counsel further submitted that the 1st Respondent/Plaintiff has ventured upon to initiate vexatious litigation by way of a Civil Suit, after exhausting his remedy before this Court by filing a Writ Petition in W.P. No.27808 of 2010 and also by filing an Application in S.A. No.48 of 2010 before the Debts Recovery Tribunal under Sec. 17 of the SARFAESI Act. The Suit is filed effectively seeking to defeat the rights of the Petitioner, being an Auction Purchaser of the property under the SARFAESI Act, claiming that a charge is created on an alleged Sale Agreement, when the jurisdiction of the Civil Court is expressly barred under Sec. 34 of the SARFAESI Act.

(3.) The learned Senior Counsel further submitted that the Suit was filed by the 1st Respondent/Plaintiff in the year 2017 seeking for a recovery of money and an Order of Permanent Injunction against the Petitioner and the Respondents 2 to 6 based on the unenforceable/time barred alleged Sale Agreement, dtd. 4/3/2009, said to have been entered into between by the First & Second Respondents and his father in respect of a property, which has been purchased by the Petitioner under the provisions of SARFAESI Act by way of a Private treaty, in and by a Sale Certificate, dtd. 8/11/2010. The following is the extract of the Suit relief in O.S. No.290 of 2017: