Punjab National Bank v. Sushma Mittal & Ors.

1. Bothth^se appeals have^denfiled bythe Punjab N^ionalBank againstIthe order dat^|p.05.2015 passed by|he learned Additionlil District"Judgei^^Nortli West^^^^^C^ns,Delhi by virtueofwhiclf'the^applicafSn^hfthea]^^^wOrder7Rule 11 (d) CPC'has w'been^:^iMsSed a^^^ of the respondentsunderOrder!3g=RQl^&'2ePChasbeen allowed.

2. I have heard the learned counsel for the appellant. The contention ofthe learned counsel for the appellant is that before filing ofthe suit by the respondent, the appellant has filed original petition before the DRT seeking attachment of the suit property which happens to be a house in Ashok Vihar apart from other properties in order to realize the loan amount from the legal heir of the guarantor. The contention ofthe learned counsel for the appellant FAO.NOS.260/20IS&265/201 Page[1] of[4] 2016:DHC:8534 isthatthe respondenthas already filed the written statementinthe said suit wherethe plea offraud has beentaken bythe respondent. It has been contended that by virtue ofSection 18 ofthe Recovery of Debts Due to Banks and Financial Institutions Act, 1993, jurisdiction ofthe Civil Courtis barred and therefore,the plaintis liable to be rejected under Order 7 Rule 11(d)CPC. As regards the adjudication ofthe rightsofthe respondents with regard to suit nrooerty it has been contended that since plea has been taken by,he appellant in Wf"gifJ^^^%«herefore^ it can be adjudicated DRT^a^Sitc^gi^al^Jtigtotheeffectthat the properf"^ii^uestion,was not mortgageS>itl^he Bank and therefor^t^ameCourtoughtnottohaveentertatpe^thesuit.

3. Mr.BaltirSingh,the learned seiiioi counselforthe|espondents hasconfested boththesesubnii^toi-^Asregardsthewpealofthe appellanionaccoipt^oftheapplicatior|,of^respond|^^havebeen allotved Rules 1 &d"^^9s^b%encontended thatitwas^S^^tofder-onthebagof^Jtaiementpurported to have been macfr^tfeaflcgi^^^alfofthe Bank thatthey will not dispossess the respondent during the pendency ofthe suit and therefore, by virtue of Section 96 (3) that portion of the consentorder could nothave been appealed in the presentappeal.

4. As regards the rejection ofthe application ofthe appellant under Order 7 Rule 11(d)CPC is concerned,it has been contended that since the question offraud has been raised by the respondents in the suit,therefore,in terms ofMardia ChemicalsLtd.Etc. v. Union FAO.Nos.260/2015&265/201 P^Se2of[4] ofIndia & Ors.,(2004)4SCC311 the said issue offraud having been comniitted in order to obtain mortgage can be adjudicated only by a Civil Court and not by DRT. In addition to this,it has been contended by the learned senior counsel that these are not only bald averments made by the respondent but they are duly supported by primafacieevidence with regardtofraud having been played,in as much ason the basis ofa application a complainthas been lodged by the respondents under Section 156(3)Cr.P.C.with theillaqa Magistra|ef^fl|^local|po^eIfe^^readyregisteredFIR against the ojpcial^pfthe a^^ are being carri^^

5. It has also^'een contends^'ttethe-anticipator^I^^ the persons|who are named in the FIR against the offiders/officials namedlitheFIRhasbeenalsorejectedandtherefore,|ioinfirmity canbea^ibutedt^^e

6. Ihaveca^ll^S^iderldthestil3misl^^^|if(iconsiderable merits in the^ufe^pn|^^thf^^^^^ counsel for the respondents. So fe 'MoffgttllS'C^cerned,itmakesamply clearthataconsent order cannot be assailed by either ofthe parties. With regard to a restrained which has been put on the appellant with regard to dispossession of the respondent from the suit property, the officials of the Bank themselves have made a statement before the trial Court that they shall not dispossess the respondentsfrom the suit property till the disposal ofthe suit itself. It is on the basis ofthe said statement that a restrained order has FAQ.Nos.260/2015& 265/201 Page3of[4] been passed,therefore,this aspectofthe matter cannot be assailed bythem now in the presentappeal.

7. Withregard tothe rejection ofthe plaintunder Order7Rule 11(d) CPC is concerned,Mardia ChemicalsLtd.Etc. v. Union ofIndia& Ors.,(2004)4SCC 311, the judgment ofthe Apex Court is still holding the groundsin as much as it has not completely ousted the jurisdiction of the Civil Court to any matters pertaining to the financial institutions and %,priyate,parties. One ofthe conditions in which a private*! " allegesthat|rfaudWs"beencomrpitted.

8 Now,undir Orfer6Rule4CPC a party who all§ge%ffaud,he has t cy ' ■ ' ' ■ ■ ' ' jy \ to give details ofthe fraud and further in the instdiit(^se notonly thedetailsofthefraudhayingbeerigivenbutthesame|primafacie substanlated in as muchifl^tl^^R against the of&ials ofthe Bank hal^been registered 'bas^^^ havingbe[4],mldeby:the'lsiMent.'^ere^fMljurisdictionof the Civil Couftwhi^'ds-o^^iwi^b^ cannot be deemed to ha^b^^^a^^i.-thfe factual matrix of this particular case. I,therefore,do notfind that there is any infirmity in the impugned orderto that extent.

9. The appeals in my opinion are without any merits and accordingly the same are dismissed.

10. Pending applications also stand disposed of.

MARCH 14,2016/vk V.K.SHALI,J.