BANK OF RAJASTHAN LIMITED Vs. SURYAKANT SUKHDEO GITE

JUDGEMENT

(1.) Admit. Notice after admission made returnable forthwith by consent. Heard both the sides for final disposal.

(2.) The proceeding is filed to challenge the order made by 5th Jt. Civil Judge, Junior Division, Aurangabad on Exh. 41 filed in R.C.S. No. 432/2007. The revision applicant/Bank of Rajasthan had filed application at Exh. 41 as defendant under the provisions of Order 7, Rule 11 (d) of C.P.C. and had requested to reject the plaint. It is the case of Bank that there is bar of provision of section 34 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SARFAESI Act' for short). The application was opposed by the other side/plaintiffs.

(3.) It is the case of bank that it had advanced loan of Rs. five lakh to respondent No. 3 - Vinod Punjabi for purchasing flat No. A-3 from the developer, respondent No. 2. It is contended that on 29.4.2002 there was the agreement of sale between respondent No. 2 and respondent No. 3 and after sanction of loan by the Bank, the property was sold by respondent No. 2 to respondent No. 3 in the year 2002 itself. It is contended that the Bank had given the loan, sanctioned by way of cheque, directly to respondent No. 2 and so, he had the knowledge that bank was involved and the flat was mortgaged with the Bank by the respondent No. 3. It is contended that behind the back of bank, the builder, respondent No. 2 sold the flat to plaintiff under sale deed dated 5.4.2004. It is contended that as the flat was already sold to respondent No. 3 by builder, it was not possible for the builder to sell the same flat to respondent No. 1. It is contended that notice under section 13 (2) of the SARFAESI Act was issued by the Bank on 14.7.2004.