TANUJA BARUAH Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This regular first appeal has been preferred by the plaintiff of Title Suit No. 54 of 2006 challenging the judgment and decree dated 25.5.2009 whereby the suit of the plaintiff was dismissed holding the same not maintainable.

(2.) The brief facts involved in the appeal be stated first. One Smti Tanuja Baruah as plaintiff instituted Title Suit No. 54 of 2006 in the court of learned Civil Judge at Tinsukia. On 8.9.2006 she stated that pursuant to her application dated 24.8.2005, the defendant bank sanctioned agricultural term loan limit of Rs. 6,00,000/ - as embodied in the sanction letter dated 12.11.2005 for pig farming and livestock and other asset of the firm was pledged/hypothecated as primary security. The firm was situated at Borbheta Bongali Gaon, Mouza Tipling, PS Bordubi in the district of Tinsukia. The collateral security was executed by plaintiff by mortgaging land measuring 6 Bigha belonging to one Madhab Barua of the same village. But the bank wrote the name of owner as Bhuban Barua wrongly. After the firm was commissioned, the pigs were attacked by disease and consequently they died in large number and plaintiff could hardly earn Rs. 23,780/ - by sale of few healthy pigs. The bank did not view it leniently and rather by taking a cruel view issued a threatening letter dated 12.5.2006 on 3.6.2006 demanding entire loan amount with interest within 10 days failing which legal action was threatened. The bank also showed deposit of Rs. 35,000/ - in the plaintiff's account without knowledge of the plaintiff which however was not indicated in the plaintiff's Pass Book. According to the plaintiff, aforesaid demand notice dated 4.8.2006 is prima facie void, illegal and unenforceable in law and hence it is liable to be set aside and quashed. The plaintiff, therefore, prayed that a decree be passed declaring that notice dated 4.8.2006 sent by defendant No. 1 to the plaintiff demanding payment of Rs. 5,52,897.39 along with interest thereon on as against terms loan account No. 01572070352 is void, illegal and unenforceable and also for prohibitory injunction restraining the defendant bank from taking recourse to legal action under Sec. 13 (2) of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(herein after referred to as 'SARFAESI Act').

(3.) On being notified, defendant No. 1 appeared and submitted written statement challenging, inter -alia, the maintainability of the suit itself in view of bar under the SARFAESI Act, 2002. The defendant pleaded that no injunction can be granted in view of specific bar and the suit of the plaintiff is liable to be dismissed as not maintainable on that ground alone. On merit it is stated that plaintiff miserably failed to disclose her legal right in regard to the demand notice dated 4.8.2006 and so no declaration as prayed for can be given in favour of the plaintiff and no injunction can be granted invoking Section -13(2) of the SARFAESI Act. In para -6 of the written statement it is specifically pleaded that under Sec. 34 of the SARFAESI Act, 2002, no suit /injunction proceeding lies in any civil court and as such, the jurisdiction of the civil court is specifically and expressly ousted. The allegation levelled in the plaint that the defendant bank acted in a cruel manner or that it did not act in accordance with the banking norms or that it acted in dilatory manner. have been specifically denied by the defendant. In para -13 of the written statement, it was further stated that although the borrower could not produce any documentary evidence of livestock purchase and or failure of the project, yet the defendant bank disbursed a sum of Rs. 35,000/ - on 31.3.2006 on the basis of application dated 27.3.2006 submitted by the plaintiff which the answering defendant recredited in loan account on 18.5.2006 so as to absolve the plaintiff from the burden of paying unnecessary interest. The plaintiff never visited the branch of the bank nor did she enquire about disbursement after submitting the application dated 27.3.2006 and under such circumstances, the bank did not have any other alternative then to take recourse to notice dated 4.8.2006. According to the bank, the plaintiff did never start the business of piggery for which loan was sanctioned and disbursed by the bank. With these averments, contesting bank prayed for dismissal of the suit with compensatory cost.