BRAJBIHARI Vs. SBBJ

JUDGEMENT

(1.) THE present appeal filed under Order XLIII Rule 1(r) of CPC arises out of the order dt. 1.8.12 passed by the Addl. District Judge No. 1, Bharatpur (hereinafter referred to as 'the trial court') in Civil Misc. Case No. 32/09, whereby the trial Court has dismissed the application of the appellants -plaintiffs filed under Order XXXIX Rule 1 and 2 CPC. If appears that the appellants -plaintiffs have filed the suit seeking permanent injunction against the respondent No. 1 and 2 in respect of the suit property alleging inter alia that the property was purchased by Shri Bhajan Lal, father of the plaintiffs and the respondent No. 2 through the registered sale -deed on 17.7.58. According to the appellants -plaintiffs, the said Bhajan Lal had executed his Will on 21.6.98, bequeathing the property amongst his four sons and since then the plaintiffs and the respondent No. 2 were in joint possession of the said property. It is further case of the appellants -plaintiffs that the respondent No. 2 Mohan Lal had created the mortgage in respect of the suit property in favour of the respondent No. 1 -Bank and, therefore, the respondent -Bank had issued notice under Sec. 13(2) of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Act, 2002 (hereinafter referred to as 'the said Act'). Since the appellants -plaintiffs had also share in the suit property, the suit for permanent injunction was filed. The appellants -plaintiffs had also filed the application seeking temporary injunction against the respondent -Bank, which has been dismissed by the trial Court vide the impugned order.

(2.) IT has been submitted by the learned counsel Mr. Manoj Bhardwaj for the appellants that the trial Court had wrongly and under the misconception of the law held that the suit of the appellants -plaintiffs was not maintainable. Relying upon the decision of this Court in case of Mohan Lal & Anr. v. Dwarka Prasad & Ors., : 2007 (6) WLC (Raj.) 584, the learned counsel has submitted that the bar under Sec. 34 of the said Act was not absolute and the civil Court can try the suit if the civil rights of the parties are effected.

(3.) HAVING regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial Court it clearly transpires that the appellants -plaintiffs have filed the suit against the respondent -Bank and the respondent No. 2 who is the brother of the plaintiffs, seeking injunction against the respondent -Bank in respect of the action initiated by the Bank against the respondent No. 2 by issuing notice under Sec. 13(2) of the said Act. As rightly submitted by Mr. Sharma for the respondent -Bank the civil Court would not have the jurisdiction to entertain the suit in respect of the matters which the Debt Recovery Tribunal is empowered to determine under the said Act and no injunction could be granted by any Court in respect of the action taken or to be taken in pursuance of the powers conferred by or under the said Act. Since the respondent -Bank has already taken action under Sec. 13 of the said Act against the respondent No. 2 and his wife, who was the principal borrower, the trial Court has rightly not granted the injunction in favour of the appellants -plaintiffs. The judgment relied upon by the learned counsel for the appellants has not relevance to the facts of the present case. He has also failed to point out any illegality or infirmity in the impugned order passed by the trial Court. This Court therefore, does not find any substance in the present appeal. In that view of the matter the appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.