CHIEF MANAGER, STATE BANK OF INDIA, STRESSED ASSETS RECOVERY BRANCH, RUSSELL STREET & ANR. Vs. SAGAR VILLA APARTMENT OWNERS ASSOCIATION & ORS.

JUDGEMENT

(1.) Assailing the order no. 10 dated 04.12.2016 passed by learned Civil Judge, Junior Division, 1st Court, Barasat in T.S. No. 306 of 2014, the instant revisional application has been preferred by the defendants no. 1 and 2 of the said suit where learned trial Court while disposing of an application under Order 7, Rule 11 of the Code of Civil Procedure, filed by these defendants/petitioners no. 1 and 2, rejected the same.

(2.) The background of the instant revisional application is that the defendants/opposite parties no. 1 and 2 filed the suit for declaration that the deed of conveyance being deed no. 1028 of 2006 dated 08.02.2006 is void ab initio and the defendant no. 1 did not acquire right, title and interest over the property referred to in the schedule of the plaint and further prayed for mandatory injunction directing the defendants/petitioners and the opposite parties no. 3 to handover the vacant possession of the suit property in favour of the plaintiff/opposite party no. 1/Association and they also prayed for other consequential reliefs as well. As the defendants of T.S. No. 306 of 2014 i.e. the defendants no. 2 and 3/petitioners herein filed an application before learned trial Court under Order 7, Rule 11 of the Code of Civil Procedure read with Section 34 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (and hereinafter referred to as SARFAESI Act), 2002 wherein it was claimed that the defendants/opposite party no. 1 and 2 filed the instant suit against the petitioners no. 1 and 2/State Bank of India and another and sought for certain reliefs against the State Bank of India on the strength of a notice under Section 13(4) and rule 8(1) of the SARFAESI Act.

(3.) The defendant/opposite party no. 3 (Sanjoy Naskar) being the proprietor of M/s. S.N. Electric and Sagar Travels applied for loan for augmentation of his business and the defendants/petitioners no. 1 and 2 sanctioned a loan of Rs. 3 lac to the said defendant no. 1 with certain terms and conditions and as per such terms and conditions of the said loan was sanctioned on equitable mortgage in respect of the scheduled immoveable property as security of such loan. Subsequently as the opposite party no. 3/defendant no. 1 wilfully defaulted in making repayment of loan, the defendants/petitioners no. 1 and 2 issued a notice under Section 13(2) of the SARFAESI Act upon him on the 13th day of March, 2012 and after issuing the said notice, the defendant no. 1 took no steps for repayment of the said loan within the stipulated period and on expiry of the period given in the notice the petitioners herein issued notice under Section 13(4) of the SARFAESI Act, 2002 upon the said defendant/opposite party no. 3 and took symbolic possession of the mortgaged property and thereafter took physical possession of the same by serving notice upon him (the defendant/opposite party no. 3). The petitioners herein further stated that the plaintiffs of T.S. 306 of 2014 in collusion with the defendant/opposite party no. 3 filed a suit against the present petitioner for causing harassment and delay in recovering the loan from the opposite party no. 3 for which the petitioners herein had to file an application for rejection of the plaint under Order 7, Rule 11 of the Code of Civil Procedure, taking recourse of the provisions of Section 34 of the SARFAESI Act, 2002.