JAMMU AND KASHMIR BANK Vs. JAI LAKSHMI DRAVID

JUDGEMENT

(1.) THE defendant is revision petitioner against the order passed by the learned Trial Court on 3.1.2005 whereby the application filed by the defendant for rejection of the plaint in terms of Order 7 Rule 11 of the Code of Civil Procedure Code, 1908 was dismissed.

(2.) THE plaintiffs have filed a suit for declaration and permanent injunction on the ground that the property in dispute was purchased by plaintiff No. 1 and her husband vide sale deed dated 1.19.1984 from the assets which the husband of the plaintiff got from his ancestral property. After the death of husband of plaintiff No. 1, by virtue of his Will dated 19.10.1989, all rights in the residential property had devolved upon defendant No. 1 as Karta for the benefit of plaintiffs Nos. 2 and 3 as well.

(3.) IT is the stand of the bank that the property, the subject-matter of the suit, was mortgaged in favour of the Bank and, therefore, in the event of the default of payment of dues, the Bank has a right to proceed against the security under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act). In terms of Section 34 of the Act, the jurisdiction of the Civil Court is barred. Reliance is also placed upon a judgment of Hon'ble Supreme Court in Mardia Chemicals Lid v. Union of India, 2004(2) RCR(Civil) 665 : (2004-3)138 P.L.R. 271 (S.C.) : 2004(4) S.C.C. 311 to contend that the validity of the said Act has been upheld by the Hon'ble Supreme Court. It has been held that only in case of fraud, the Civil Court has the jurisdiction to examine the question.