ICICI BANK LTD. Vs. SUNIL GUPTA AND ORS.

JUDGEMENT

(1.) Challenge in the present revision petition is to the order dated 17.05.2011 (Annexure P1), passed by the Addl. District Judge, Gurgaon, whereby interim injunction had been granted against the petitioner/defendant-Bank by holding that the house of the plaintiff is not mortgaged and is not a secured asset as per Section 31(e) of the Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (its acronym, 'SARFAESI Act'). Accordingly, the Bank was restrained from interfering in the plaintiffs' possession over the house in dispute, during the pendency of the Civil Suit. A perusal of the paperbook would go on to show that a notice dated 17.06.2010 (Annexure P9) under Section 13(2) of the SARFAESI Act was issued to the plaintiffs wherein it was mentioned that they had availed the loan/finance facility and an amount of Rs. 65 lacs was sanctioned under the loan facility agreement entered into as the Bank was the secured creditor. As per Annexure A, house No. 2038A, Block D Palam Vihar, Gurgaon and the details of the boundaries were mentioned in the said notice which was the secured asset. Vide the said notice, a demand was made for the outstanding dues of Rs. 69,95,026/- as on 17.06.2010. It is an admitted fact that no reply was filed to the said notice and thereafter, the District Magistrate, Gurgaon was approached under Section 14 of the SARFAESI Act to take possession of the said property.

(2.) In the meantime, during the interregnum, the present suit was filed on 10.01.2011 (Annexure P10) along with an application/filed under Order 39 Rule 1 & 2 CPC. The said application was dismissed by the Trial Court on 01.04.2011 on the ground that the loan of Rs. 65 lacs had been taken and the Bank was proceeding in accordance with law. Against the said order, the plaintiffs filed an appeal in which injunction has been granted. The said order was stayed by this Court vide order dated 07.12.2012. The reasoning given by the Lower Appellate Court was that the house is not mortgaged and was not a secured asset with the Bank and it accepted the plea taken in the plaint that the title deeds were only given for verification purposes.

(3.) In view of the facts noticed above, it is clear that the secured property was the house itself, details of which were given in the notice dated 17.06.2010. In such circumstances, the Lower Appellate Court was not justified in allowing the injunction application wherein the Bank was proceeding in accordance with law since there is a bar of jurisdiction regarding action to be taken under the Act as per section 34 of the SARFAESI Act, which reads as under: