# Aryavrat Bank, Aligarh Revisionist v. Smt. Malka Bansal & Ors

- **Citation:** (2023) 10 ILRA 609
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-22
- **Case number:** Civil Revision No. 120 of 2022
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aryavrat-bank-aligarh-revisionist-v-smt-malka-bansal-ors-49490
- **Pages:** 14

## Headnote

Civil Law - Code of Civil Procedure, 1908 -
Order VII Rule 11 - Plaint - Against
rejection of application - Plaintiffs claim
ownership and possession of residential
house on suit property which was built by
first plaintiff's father-in-law on leased
land - Later mutated in name of first
plaintiff's husband and second plaintiff's
father - After their deaths, no partition or
mutation of heirs occurred - Trial Court
noted while property was in name of
husband of plaintiff no. 1 and father of
second
plaintiff
no.
2,
loans
were
sanctioned by defendant No.1 (revisionist)
to two persons, without any document
proving that suit property was mortgaged
for those loans - In instant case, Court has
to see averments in plaint, while rest
matter to be decided during trial - Plaint is
clearly
abuse
of
process
of
Court,
designed to avoid bar under Section 34 of
SARFAESI Act - Plaint is clearly barred on
wholesome understanding of plaintiffopposite parties' case, including that
deliberately suppressed, under Section 34
of SARFAESI Act - Application for rejection
of plaint allowed, plaint rejected. (Para
15, 38, 39)

Revision allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,741 of 49,865. This is a partial read: ask again with offset=39741 for what follows._

10 All. Aryavrat Bank, Aligarh Vs. Smt. Malka Bansal & Ors.
609
(iii) आवेिक रायल कोर्ा द्वारा तय की गई प्रत्येक तारीख पर
उपमस्र्थत होगा।
----------
(2023) 10 ILRA 609
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2023

BEFORE

THE HON'BLE J.J.MUNIR, J.

Civil Revision No. 120 of 2022

Aryavrat Bank, Aligarh ...Revisionist
Versus
Smt. Malka Bansal & Ors. ...Respondents

Counsel for the Revisionist:
Sri Ramesh Kumar Shukla

Counsel for the Respondents:
Sri Ashok Pandey, Sri Akash Dwivedi

Civil Law - Code of Civil Procedure, 1908 -
Order VII Rule 11 - Plaint - Against
rejection of application - Plaintiffs claim
ownership and possession of residential
house on suit property which was built by
first plaintiff's father-in-law on leased
land - Later mutated in name of first
plaintiff's husband and second plaintiff's
father - After their deaths, no partition or
mutation of heirs occurred - Trial Court
noted while property was in name of
husband of plaintiff no. 1 and father of
second
plaintiff
no.
2,
loans
were
sanctioned by defendant No.1 (revisionist)
to two persons, without any document
proving that suit property was mortgaged
for those loans - In instant case, Court has
to see averments in plaint, while rest
matter to be decided during trial - Plaint is
clearly
abuse
of
process
of
Court,
designed to avoid bar under Section 34 of
SARFAESI Act - Plaint is clearly barred on
wholesome understanding of plaintiffopposite parties' case, including that
deliberately suppressed, under Section 34
of SARFAESI Act - Application for rejection
of plaint allowed, plaint rejected. (Para
15, 38, 39)

Revision allowed. (E-13)

List of Cases cited:

1. St. Bank of Patiala Vs Mukesh Jain & anr.,
(2017) 1 SCC 53

2.
Urvashiben
&
anr.
Vs
Krishnakant
Manuprasad Trivedi, (2019) 13 SCC 372

3. Mardia Chemicals Ltd. & ors. Vs U.O.I. & ors.,
(2004) 4 SCC 311

4. Nahar Industrial Enterprises Ltd. vs Hong
Kong and Shanghai Banking Corporation, (2009)
8 SCC 646

5. Leelamma Mathew Vs Indian Overseas Bank
& ors., 2022 SCC OnLine SC 1601, (Para 25)

6. Rajasthan Ltd. Vs VCK Shares & Stock
Broking Services Ltd., (2023) 1 SCC 1

7. T. Arivandandam Vs T.V. Satyapal & anr.,
(1977) 4 SCC 467, (Paras 5, 6)

8. R.V. Homes (India) Pvt. Ltd. Vs Housing
Development Finance Corporation Ltd., 2021 0
Supreme (Telangana) 408, (Paras 11, 13)

(Delivered by Hon'ble J.J. Munir, J.)

1. This revision is directed against an
order of Mr. Mohd. Firoz, Civil Judge (Sr.
Div.), Aligarh dated August the 22nd, 2022,
rejecting
the
defendant-revisionist'
application under Order VII Rule 11 of the
Code of Civil Procedure, 1908 (for short,
'the Code') made in Original Suit No.985
of 2021.

2. The plaintiff-opposite party Nos.1
and 2, Smt. Malka Bansal and Km. Keshvi
Bansa, who shall hereinafter be called 'the
plaintiffs' (unless the context requires a
different reference), instituted O.S. No.985
610 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2021 in the Court of the Civil Judge (Sr.
Div.), Aligarh on 13.12.2021 for the relief
of permanent prohibitory injunction.

3. The facts leading to the suit and the
plaintiffs' case shortly put is that House
No.2/473,
Vishnupuri,
Lane
next
to
Sumangalam Nursing Home, Police Station
Quarsi, District Aligarh (for short, 'the suit
property') was built on a part of land taken
on lease by Shiv Prasad Bansal on 06.10.1937.
It bore Plot No.40. Shiv Prasad Bansal died on
20.04.1973. He was survived by his heirs and
LRs, to wit, Satyendra Kumar Bansal,
Devendra Kumar Bansal and Vipin Kumar
Bansal. In a family settlement, the suit property
was acknowledged to the share of Satyendra
Kumar Bansal. His name was recorded in the
records of the Vishnupuri Sahkari Awas Samiti
Limited on 20.07.1995. Satyendra Kumar
Bansal expired on 01.11.2005. After his demise,
the name of his heirs was not mutated in the
revenue records. Amongst the plaintiffs, Smt.
Malka Bansal is Satyendra Kumar Bansal's
widow whereas Km. Keshvi Bansak is his
daughter. According to the plaintiffs' case, they
are residents in the suit property. Both the
plaintiffs are women. Smt. Malka Bansal is 82
years old and a widow. She is permanently
handicapped. Km. Keshvi Bansal is an
unmarried woman. It is the plaintiffs' case that
defendant No.1, the Aryavart Bank, Branch
Ramghat, Aligarh, represented by its Branch
Manager intend to illegally occupy the suit
property whereas the said property has never
been mortgaged with defendant No.1, the
Aryavart Bank. According to the plaintiffs, no
one has mortgaged the said property to secure
any kind of loan, availed from defendant No.1.

4. It is the plaintiffs' case that the suit
property is a house, built on land, which is
leased for a duration of 80 years. For the said
reason, it cannot be the subject matter of a
mortgage to secure a loan. The land on which
the suit property, comprising the plaintiffs'
residential house stands, is owned by defendant
No.2 to the suit, the Vishnupuri Sahkari Awas
Samiti Limited, Surya Marg, Vishnupuri,
Aligarh. The land comprising the suit property
was taken on lease through a registered lease
deed 06.10.1937 by Smt. Malka Bansal's
husband's father, Shiv Prasad Bansal. There are
then allegations, already set out hereinbefore,
showing devolution of the suit property on his
three sons and heirs followed by a family
settlement. The settlement, where the suit
property was acknowledged to have come to
the share of Smt. Malka Bansal's husband, the
late Satyendra Kumar Bansal, was declared in a
suit between the three sons of Shiv Prasad
Bansal being O.S. No.118 of 1986, decided by
the Civil Judge, Aligarh. Satyendra Kumar
Bansal was mutated, again as already said, in
the records of the Vishnupuri Sahkari Awas
Samiti Limited on 24.07.1975 as a lessee.
In the assessment records of the Nagar
Nigam, the late Satyendra Kumar Bansal
was recorded as owner of the suit property.
Upon the demise of Satyendra Kumar
Bansal on 01.11.2005, the name of his heirs
have not been recorded in the annual
assessment register, relating to house tax.
The suit property continues to be recorded
in the name of Satyendra Kumar Bansal. It
is also pleaded that in all relevant records,
Satyendra Kumar Bansal continues to be
recorded as the lessee of the suit property.
The plaintiffs' case is that the Aryavart
Bank, defendant No.2 is on the look out to
grab the plaintiffs' property. On 18.11.2021
at 12 noon, the employees of the said Bank
alighted and placed locks on the main door
of the residential house, and, further, on the
factory manufacturing bags, located in the
suit property. The office of the factory was
also sealed by putting it under a lock. The
Bank posted two private security guards.
According to the plaintiffs, for the purpose
of their residence, two rooms, a kitchen,
10 All. Aryavrat Bank, Aligarh Vs. Smt. Malka Bansal & Ors.
611
toilet and a small window fixed in the main
gate, were left open.

5. It is the plaintiffs case that on
account of posting of the security guards by
the Aryavart Bank, defendant No.1 in the
suit property, their privacy is being
violated. In addition, it is pleaded that Smt.
Malka Bansal's medicines were also placed
in the room, which defendant No.1 has
illegally sealed. According to the plaintiffs,
they are not the owners of the suit property,
which defendant No.1 have sealed. They
are the widow and daughter of the lessee,
Satyendra Kumar Bansal. The suit property
is an old house, which, according to law,
without a no objection certificate granted
by defendant No.2, the Vishnupuri Sahkari
Awas Samiti Limited, cannot be mortgaged
to secure a loan. Still, the defendants
(perhaps a reference to defendant No.1
alone) unlawfully and illegally has caused
the suit property to be sealed and in
connivance with land mafiosi as well as
antisocial elements, the said defendant
would soon put the suit property to auction.

6. The plaintiffs has further on
pleaded that according to defendant No.1,
the suit property has been mortgaged to
secure a loan, and, before the said loan was
granted, the Bank Counsel, vide his report
dated 26.11.2016, opined that there was no
requirement of a no objection certificate by
the Vishnupuri Sahkari Awas Samiti
Limited, in order to secure the loan
sanctioned
with
the
suit
property
mortgaged. It is pleaded further that in the
same connection when the Oriental Bank of
Commerce was approached, the Bank
Counsel there vide report dated 27.06.2016
has opined that since the suit property is a
lease-hold, permission of the lessor, that is
to say, the Vishnupuri Sahkari Awas Samiti
Limited is essential. The Oriental Bank of
Commerce had declined to sanction a loan
on the security of the suit property, it being
a lease-hold. The locks placed on the
house, comprising the suit property, are
illegal and defendant No.1, the Bank have
no legal authority to keep the said property
sealed. The plaintiffs have asserted that
they have asked defendant No.1 to cause
their locks and seals to be removed and
also to withdraw their security men, but
they
have
refused.
Accordingly,
the
plaintiffs have been compelled to institute
the suit. The plaintiffs have sought a
permanent prohibitory injunction in the
following terms (translated into English
from Hindi):

"That defendant No.1, their agents and
servants etc. be ordered to remove the
unlawfully and illegally placed locks,
remove seals and withdraw the security
guards placed/ deployed on the plaintiffs'
residential House No.2/473, Vishnupuri,
Lane next to Sumangalam Nursing Home,
Police Station Quarsi, District Aligarh and
further not to interfere in the plaintiffs'
privacy or use of the house in any manner."

7. Defendant No.1, the Aryavart
Bank, apart from putting in their written
statement contesting the suit, filed an
application under Order VII Rule 11 of the
Code. In the application, it is urged that
plaintiff No.1's son and brother of the
second plaintiff, Nakul Bansal, son of the
late Satyendra Kumar Bansal, is the sole
proprietor of the firm called, M/s. Sai
Refrigeration. Nakul Bansal applied for a
cash credit limit to the Bank in the sum of
Rs.65 lacs and a further sum of Rs.24 lacs,
to be sanctioned by way of a term loan.
These were sanctioned and bear loan
account
Nos.
120530110000029
and
120570210000002, respectively. A personal
guarantee for repayment of the loans was
612 INDIAN LAW REPORTS ALLAHABAD SERIES
given by Nakul Bansal as proprietor of the
firm, last mentioned. In addition, personal
guarantees were given by his brothers,
Saurabh Bansal, mother, Smt. Malka
Bansal (plaintiff No.1) and sister Km.
Keshvi Bansahl (plaintiff No.2) to secure
the cash credit limit and the term loan
sanctioned by the Bank. In order to further
secure the loan, the necessary memo dated
24.01.2017 was executed by Nakul Bansal,
Saurabh Bansal, Smt. Malka Bansal and
Km. Keshvi Bansal, mortgaging the suit
property with the Bank on 24.01.2017.
Along with the memo aforesaid, the title
deed dated 06.10.1937 in original was
deposited with the Bank by the persons
aforesaid.

8. The other son of plaintiff No.1,
Saurabh Bansal and the second plaintiff's
brother, who is the sole proprietor of the
firm, known as M/s. Medical Business
House, applied for a cash credit limit for
the purpose of his business to the Bank,
worth Rs.60 lacs. This cash credit limit was
sanctioned and assigned Account No.
120530110000031. This cash credit limit
was secured by the personal guarantees of
Saurabh Bansal's brother Nakul Bansal, his
mother Smt. Malka Bansal (plaintiff No.1)
and sister Km. Keshvi Bansal (plaintiff
No.2).
In
addition,
a
memo
dated
21.02.2017
was
jointly
executed
by
Saurabh Bansal, Smt. Malka Bansal, Km.
Keshvi
Bansal
and
Nakul
Bansal,
mortgaging the suit property in favour of
the Bank. For the purpose of creating the
mortgage, the title deed relating to the suit
property dated 06.10.1937 was deposited
with
regard
to
Loan
Account
No.
120562610000143, as well. In short,
therefore, according to the Bank, the suit
property has been mortgaged with the Bank
to secure two cash credit limits and one
term loan - two of these availed by Nakul
Bansal, and, the other, by Saurabh Bansal,
sons of plaintiff No.1 and brothers of
plaintiff No.2. The original title deed of
06.10.1937 has been deposited with the
Bank to create an equitable mortgage.

9. Defendant No.1 has said that the
loanees, Nakul Bansal and Saurabh Bansal
failed to maintain financial discipline and
their loan accounts became irregular. In
consequence, these Bank accounts were
declared non-performing assets. It is the
case of defendant No.1 that these material
facts have been suppressed by the plaintiffs
completely, while instituting the present
suit. It is further on said that in
consequence of the loan accounts of Nakul
Bansal and Saurabh Bansal being declared
non-performing assets by defendant No.1,
the plaintiffs were served with a notice
under Section 13(2) of the Securitisation
and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(for short, 'the SARFAESI Act) on
10.04.2019 and 24.07.2019. Later on,
plaintiff Nos.1 and 2 were served with
notices under Section 13(4) of the Act last
mentioned
dated
29.08.2019
and
27.11.2019, respectively, taking symbolic
possession of the suit property. These
notices were published on 30.08.2019 and
29.11.2019 in two newspapers. After these
measures, defendant No.1 applied to the
Collector under the SARFAESI Act to take
physical possession.

10. The two applications made for the
purpose came up before the Additional
District Magistrate (Finance and Revenue),
Aligarh, who vide orders dated 20 &
27.01.2021 allowed the same and directed
physical possession to be taken. The
necessary police aid was directed to be
given. It is in pursuance of aforesaid orders,
passed under Section 14 of the SARFAESI
10 All. Aryavrat Bank, Aligarh Vs. Smt. Malka Bansal & Ors.
613
Act, that the Additional City Magistrate-II,
Aligarh along with the Police, assisted
defendant
No.1
in
taking
physical
possession
of
the
suit
property
on
18.11.2021. At the time of taking physical
possession, the plaintiffs and the two
loanees, Saurabh Bansal and Nakul Bansal
made
a
written
application
dated
18.11.2021 to retain physical possession of
necessary accommodation. It is on the said
application that these plaintiffs and the two
loanees were given permission to use two
rooms, a kitchen, toilet and a bathroom for
a period of 15 days. At the time of taking
physical possession, the City Magistrate-II,
Aligarh along with the Police sealed the
entire property, mentioned in Paragraph
No.7 of the plaint, and, for the purpose of
security, deputed security guards there. It is
submitted that possession of the suit
property being taken in proceedings under
Section 13(2), 13(4) and 14 of the
SARFAESI Act, the suit is barred under
Section 34 of the Act last mentioned,
necessitating a rejection of the plaint under
Order VII Rule 11 of the Code. It is also
mentioned in the application that the suit has
been instituted on 13.12.2021, after possession of
the secured assets/ suit property was taken on
18.11.2021 by defendant No.1, whereas the
plaintiffs had their remedies under Section 17 of
the SARFAESI Act, before the Debts Recovery
Tribunal, against measures taken under Sections
13(4) and 14 of the said Act. According to
defendant No.1, the plaintiffs have no right to
maintain the suit, which is clearly barred by law.

11. The learned Trial Judge by the
impugned order dated 22.08.2022 has rejected
the first defendant's application under Order VII
Rule 11 of the Code and directed the suit to
proceed.

12. Aggrieved, defendant No.1 has
instituted this revision.

13. Heard Mr. Mata Prasad, Advocate
holding brief of Mr. Ramesh Kumar Shukla,
learned Counsel for defendant No.1/ revisionist,
Mr. Ashok Pandey, learned Counsel for the
plaintiff-opposite party Nos.1 and 2 and Mr.
Akarsh Dwivedi, learned Counsel for respondent
No. 3-Vishnupuri Sahkari Awas Samiti Limited
and perused the records.

14. The records of the suit summoned
from the Trial Court have been perused.

15. The Trial Judge has remarked in the
order impugned that a perusal of the plaint shows
that it is not averred there that the suit property is
mortgaged with defendant No.1 to secure a loan.
Rather, the property is held on lease, on account
of which it cannot be mortgaged. The residential
house standing on the suit property was
constructed by the first plaintiff's husband's
father after taking land on lease. The said
property was mutated in the name of the first
plaintiff's husband and the second plaintiff's
father as its lessee on 24.07.1995. After demise
of the first plaintiff's husband the second
plaintiff's father on 01.05.2010, no partition of
the property has taken place and none of his heirs
have been mutated. The Trial Court has
remarked that from these averments in the plaint,
it is evident that the suit property is said to be in
the name of Satyendra Kumar Bansal, the
husband of plaintiff No.1 and the father of the
second plaintiff, whereas defendant No.1
has sanctioned loans in favour of Nakul
Bansal and Saurabh Bansal. The said
defendant has not produced any document
to show that at the time of sanction of the
loan, it was the suit property that was
mortgaged to secure it. The learned Trial
Judge distinguished the principle laid by
the Supreme Court in State Bank of
Patiala v. Mukesh Jain and another,
(2017) 1 SCC 53, holding that wherever
proceedings are initiated under Section 13
of the SARFAESI Act, a suit to challenge
614 INDIAN LAW REPORTS ALLAHABAD SERIES
the same before the Civil Court would be
barred under Section 34 of the said Act on
ground that the said authority proceeds on
the assumption that the suit has been
instituted after initiation of proceedings
under the SARFAESI Act, whereas in the
present suit, the plaintiffs say that the suit
property neither stands in the loanees' name
nor the guarantors. On the said reasoning, it
is remarked that the facts of their
Lordships' holding in Mukesh Jain (supra)
are very different from those obtaining in
the present suit. It is also remarked by the
Trial Judge that according to the plaintiffs,
the suit property is said to be in the name of
the first plaintiff's husband, who passed
away in the year 2005. It is further
observed that how the suit property, that
was one recorded in the name of the
deceased Satyendra Kumar Bansal could be
mortgaged, is a matter to be determined on
evidence to be led during trial. At this
stage, the averments in the plaint alone
have to be seen. The objections raised on
behalf of defendant No.1 do not fall within
the purview of Order VII Rule 11 of the
Code.

16. Learned Counsel for defendant
No.1-revisionist has argued that the suit is
ex facie barred by Section 34 of the
SARFAESI Act, because in whatever
manner
presented,
the
plaintiffs,
in
substance, seek to challenge measures
taken by the Bank under Section 13(4) of
the Act, last mentioned. It is further
submitted that by suppressing a reference
to the three loans, that were availed by the
two other heirs of Satyendra Kumar Bansal,
the last recorded lessee of the suit property,
that is to say, the first plaintiff's sons and
the second plaintiff's brothers, the suit
cannot be maintained by the plaintiffs. It is
urged that there is hardly any quarrel on
facts that the property was inherited by the
late Satyendra Kumar Bansal from his
father and he was duly mutated. After his
demise, two plaintiffs and the two loanees
are his heirs, who have jointly inherited the
suit property. It matters little if they have
formally partitioned it, or more particularly,
the fact which the plaintiffs emphasize, got
themselves mutated in Satyendra Kumar
Bansal's stead. It is also urged that there is
on record of the Trial Court, copy of an
affidavit annexed as Annexure No.1 to the
written
statement,
which
shows
that
plaintiff No.1, Smt. Malka Bansal, plaintiff
No.2, Km. Keshvi Bansal, Saurabh Bansal
and Nakul Bansal, non-parties, all heirs of
the late Satyendra Kumar Bansal, have
affirmed the fact that they are owners of the
suit property, which has not been acquired
under any law or vested in any official
assignee or receiver.

17. It is pointed out that a perusal of
the affidavit shows that the plaintiffs, along
with the two loanees, entered into a loan
transaction with the Bank, where they
mortgaged suit property. It is emphasized
that though the affidavit does not mention
the factum of the loan or the mortgage, it
carries an affirmation of the joint title held
by the plaintiffs together with the two
loanees to the suit property. The learned
Counsel submits that there is no earthly
reason why the plaintiffs would subscribe
an affidavit of the kind i.e. Annexure No.1
to the written statement, unless they were
to approach defendant No.1, the Aryavart
Bank, for some kind of a loan.

18. The attention of the Court has
been drawn by the learned Counsel for
defendant No.1-revisionist to the plaintiffs'
reply, paper No.24-C, put in, in answer to
the application under Order VII Rule 11 of
the Code, made by defendant No.1revisionist. In paragraph No.2 of the reply,
10 All. Aryavrat Bank, Aligarh Vs. Smt. Malka Bansal & Ors.
615
the fact that Nakul Bansal, one of the two
loanees, is the first plaintiff's son and the
second plaintiff's brother, is admitted to the
plaintiffs, as also the fact that this man
availed a cash credit limit and a term loan
from defendant No.1-revisionist. The other
facts have been denied. The same stand has
been taken in paragraph No.3 of the reply
aforesaid in answer to paragraph No.3 of
the application under Order VII Rule 11 of
the Code. Here, the plaintiffs admit the fact
that Saurabh Bansal, the other loanee, is the
first plaintiff's son and the second plaintiff's
brother, and the fact that he has taken a
loan from defendant No. 1- revisionist.

19. It is argued by the learned
Counsel for defendant No.1-revisionist that
it is telltale upon a wholesome reading of
the plaint and the attendant circumstances
that what the plaintiffs seek to do, is to set
up a sham cause of action, with themselves
acting as proxies for the loanees Nakul
Bansal and Saurabh Bansal, in order to
defeat the statutory proceedings taken
under the SARFAESI Act before the Civil
Court, resorting to patent abuse of the
process of Court. It is urged that there are
obvious
features,
which
show
that
proceedings have been taken by defendant
No.1-revisionist under the SARFAESI Act
in order to enforce their security interest in
the suit property.

20. These proceedings have reached
culmination with measures being taken
under Section 13(4), including symbolic
possession.
Symbolic
possession
has
subsequently turned to physical possession
with enforcement of the secured creditor's
rights under Section 14 of the SARFAESI
Act. If the two loanees, who are non-parties
to the suit, and have set up the plaintiffs, or
the plaintiffs themselves by virtue of
holding an undivided interest in the
property, are aggrieved in any manner by
the measures taken under Section 13(4) of
the SARFAESI Act, the remedy is before
the Debts Recovery Tribunal under Section
17 of the SARFAESI Act. The jurisdiction
of the Civil Court against measures taken
under Section 13(4) or their enforcement
under Section 14 is barred by the
provisions of Section 34 of the SARFAESI
Act.

21. The learned Counsel for the
plaintiffs/ opposite parties, on the other
hand, submits that this suit is maintainable
because in order that the plaint may be
rejected under Order VII Rule 11(d) of the
Code, it must appear to be barred from a
statement of facts made in the plaint; not
upon considering what the defendant No.1revisionist sets up as his defence. It is
foreign to the scope proceedings under
Order VII Rule 11 of the Code that the
Court may consider what the defendant
No.1-revisionist has to say in reply. It is not
just that the defendant No.1-revisionist's
written statement is not to be read. It is that,
that
the
defendant
No.1-revisionist's
defence in any manner put forward has to
be kept out of consideration while judging
a motion under Order VII Rule 11 of the
Code.
The
defendant
No.1-revisionist
cannot be permitted to introduce his
defence through the application under
Order VII Rule 11 of the Code. The pleas
raised in the application under Order VII
Rule 11 of the Code, must be confined to
the defendant No.1-revisionist pointing out
from the averments in the plaint, as to how
a cause of action is not disclosed or how
the suit is ex facie barred by some
provision of law. In support of his
contention, he has relied upon the decision
of the Supreme Court in Urvashiben and
another v. Krishnakant Manuprasad
Trivedi, (2019) 13 SCC 372. It is next
616 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted by the learned Counsel for the
plaintiff-opposite
parties
that
the
jurisdiction of the Civil Court is not at all
barred, where the action of the secured
creditor is actuated by fraud. According to
him, this is one of the known exceptions to
the rule of ouster laid down by the Supreme
Court in the case of Mardia Chemicals
Ltd. and others v. Union of India and
others, (2004) 4 SCC 311. The learned
Counsel for the plaintiff-opposite parties
has drawn the Court's attention in this
connection to the plaintiff-opposite parties'
reply to the application under Order VII
Rule 11 of the Code.

22. He has taken the Court through
the contents of paragraph No.17 of the said
reply to say that it is the plaintiffs' case that
defendant No.1-revisionist's proceedings
taken under the SARFAESI Act are
founded on false documents and incorrect
facts leading to an inference of fraud.
Reliance is also placed by the learned
Counsel for the plaintiffs-opposite parties
upon the decision of the Supreme Court in
Nahar Industrial Enterprises Limited v.
Hong Kong and Shanghai Banking
Corporation, (2009) 8 SCC 646. In
addition, further reliance has been placed
upon the decision of their Lordships of the
Supreme Court in Leelamma Mathew v.
Indian Overseas Bank and others, 2022
SCC OnLine SC 1601. The last mentioned
case has been cited to buttress the principle
that in cases of fraud the jurisdiction of the
Civil Court is not ousted. Learned Counsel
for the plaintiff-opposite parties has in the
last pressed in aid of his submissions about
jurisdiction being available to the Civil
Court in matters, where there is fraud etc.
by the secured creditor while taking
possession of a secured asset under the
SARFAESI Act, the decision of the
Supreme Court in Bank of Rajasthan
Limited v. VCK Shares & Stock Broking
Services Limited, (2023) 1 SCC 1.

23. The question for consideration in this
revision is: Whether jurisdiction of the
Civil Court to try the suit is barred by
Section 34 of The Securitisation And
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002,
rendering the plaint liable to be rejected
under Order VII Rule 1(d) of the Code of
Civil Procedure, 1908? This question was
formulated at the time when the revision
was admitted to hearing.

24. It is broadly on the aforesaid
question that the learned Counsel for
parties have addressed the Court, albeit
highlighting different aspects that may
compel the Court to travel into some alleys
of reasoning leading to an accurate answer
to the issue.

25. The submission of the learned
Counsel for the defendant No.1-revisionist
is that the bar under Section 34 of the
SARFAESI Act would clearly be attracted,
notwithstanding the fact that nothing is
expressly said in the plaint that may bring
in
an
ouster
of
the
Civil
Court's
jurisdiction. The emphasis by the learned
Counsel for the plaintiff-opposite parties on
the principle that nothing can be looked
into, except averments in the plaint for
judging a motion under Order VII Rule 11
of the Code, is a sound principle of general
resort, which does not apply to cases,
where by a camouflage, subterfuge or
clever drafting, a suit otherwise clearly
barred by the provisions of an express
provision of the law, is attempted to be
taken out of its teeth. There is no doubt that
the plaint allegations alone have to be read
in order to find out if the suit is barred by
some provision of the law, but this does not
10 All. Aryavrat Bank, Aligarh Vs. Smt. Malka Bansal & Ors.
617
mean that the principle has to be carried to
absurd extremes, where a plaintiff, who has
deliberately suppressed facts, created a
sham cause of action and camouflaged his
plaint, should be given the liberty to have
his action tried. It is not just the form of the
allegations in the plaint, but the substance
of it that has to be seen, and, if this Court
may dare say, the immediate and obvious
circumstances that have been manipulated
out of the contents of the plaint to keep the
jurisdictional bar at bay.

26. The locus classicus on the issue is
the decision of the Supreme Court in T.
Arivandandam v. T.V. Satyapal and
another, (1977) 4 SCC 467. Though,T.
Arivandandam (supra) was a case that
was more about the lack of a cause of
action on account of the repeat litigation,
where rights of the parties had already been
settled in earlier rounds - not so much
about a statutory bar to the suit envisaged
under Order VII Rule 11(d) of the Act - the
crux of the principle is that the plaint has to
be meaningfully and wholesomely read to
understand if indeed it discloses a tribal
cause of action; or else, as it is said, creates
just an illusion by resort to clever drafting.
This Court would think that the principle
would apply not only to a case of creation
of an illusory cause of action, where none
exists, to abuse the process of Court
repeatedly, but also to cases where
otherwise a clear statutory bar is got around
by the plaintiff to save the Civil Court's
jurisdiction, that is otherwise clearly barred
by statute. In this connection, the following
observations in T. Arivandandam are
enlightening:

"5. We have not the slightest hesitation
in condemning the petitioner for the gross
abuse of the process of the court repeatedly
and unrepentently resorted to. From the
statement of the facts found in the
judgment of the High Court, it is perfectly
plain that the suit now pending before the
First Munsif's Court, Bangalore, is a
flagrant misuse of the mercies of the law in
receiving plaints. The learned Munsif must
remember that if on a meaningful - not
formal - reading of the plaint it is
manifestly vexatious, and meritless, in the
sense of not disclosing a clear right to sue,
he should exercise his power under Order
7, Rule 11 CPC taking care to see that the
ground mentioned therein is fulfilled. And,
if clever drafting has created the illusion of
a cause of action, nip it in the bud at the
first hearing by examining the party
searchingly under Order 10, CPC. An
activist Judge is the answer to irresponsible
law suits. The trial courts would insist
imperatively on examining the party at the
first hearing so that bogus litigation can be
shot down at the earliest stage. The Penal
Code is also resourceful enough to meet
such men, (Cr. XI) and must be triggered
against them. In this case, the learned Judge
to his cost realised what George Bernard
Shaw remarked on the assassination of
Mahatma Gandhi:

"It is dangerous to be too good."

6. The trial court in this case will
remind itself of Section 35-A CPC and take
deterrent action if it is satisfied that the
litigation
was
inspired
by
vexatious
motives and altogether groundless. In any
view, that suit has no survival value and
should be disposed of forthwith after giving
an immediate hearing to the parties
concerned."

27. In the present case, what has been
done by the plaintiff-opposite parties is that
in order to maintain the action, there is a
complete suppression of two facts, to wit,
the fact that the suit property was indeed
mortgaged, if not by the plaintiff-opposite
618 INDIAN LAW REPORTS ALLAHABAD SERIES
parties, by the other two co-owners, the
sons and brothers of plaintiff Nos.1 and 2,
Nakul Bansal and Saurabh Bansal; and, the
other facet of the same fact that the
plaintiffs were privy to the transaction and
guarantors of the loan that Nakul Bansal
and Saurabh Bansal had taken, creating an
equitable mortgage on the suit property by
depositing the original title deed. The other
distinct fact, that has been suppressed by
the plaintiff-opposite parties in the plaint,
are the proceedings that were taken by
defendant
No.1-revisionist
under
the
SARFAESI Act, commencing from the
notice under Section 13(2), the measures
under Section 13(4) and the taking of
physical possession of the secured asset/
the suit property by resort to the provisions
of Section 14.

28. This Court does not think that it is
correct principle in circumstances, such as
these for the Court to sit blindfolded or
with shielded spectacles that read the plaint
alone. The Court must, when it is pointed
out by defendant No.1-revisionist, look to
those features, which if mentioned in the
plaint, would have clearly brought in the
statutory bar. Here, if the plaintiff-opposite
parties had mentioned the facts in the plaint
about the three loan transactions by
Saurabh Bansal and Nakul Bansal, where
the suit property was mortgaged, and the
further facts that the plaintiff-opposite
parties were guarantors of the said loans,
the Trial Judge would certainly have
thought differently in construing the
statutory bar. He would have most certainly
thought against maintainability of the
action, if the entire gamut of proceedings
under the SARFAESI Act were pleaded in
the plaint, that led to the ultimate physical
take over the secured asset/ suit property by
defendant No.1-revisionist. There is no way
that the plaint disclosing the notice under
Section 13(2), the notice under Section
13(4) and the proceedings under Section
14, the Trial Judge would still have held the
suit not barred by Section 34 of the
SARFAESI Act. If these facts have not
been cleverly but dishonestly kept out of
the plaint by the plaintiff-opposite party
Nos.1 and 2, it is the considered opinion of
this Court that the learned Trial Judge
should have taken cognizance of them
when
apprised
by
defendant
No.1revisionist about these. I am fortified in the
view that I take by a decision of the
Telangana High Court in R.V. Homes
(India) Pvt. Ltd. v. Housing Development
Finance
Corporation
Ltd.,
2021
0
Supreme (Telangana) 408. In R.V. Homes
(India) Pvt. Ltd. (supra), it is observed by
B. Vijaysen Reddy, J.:

"11. Though there is no: specific
averment in the plaint that the proceedings
under the SARFAESI Act have been
initiated, since admittedly notice dated
31.08.2015 has been issued under Section
14 of the SARFAESI Act, the Civil Court is
empowered to reject the plaint under Order
VII Rule 11(d) CPC, on being satisfied that
the suit is barred under Section 34 of the
SARFAESI Act. A statement in the plaint
would not mean that there has to be an
admission by the plaintiff or there should a
specific statement as such to be made by
the plaintiff. It is not an uncommon practice
for a legal brain to make a clever drafting
to escape the rigours of the provision under
Order VII Rule 11(d) CPC. It is stated in
the plaint that possession notice dated
31.08.2015 (under Section 14 of the
SARFAESI Act) was issued and the copy
of the notice is filed alongwith the plaint
documents. In fact, in the plaint cause of
action it is specifically stated that the
defendant tried to interfere with the
plaintiffs possession pursuant to notice
10 All. Aryavrat Bank, Aligarh Vs. Smt. Malka Bansal & Ors.
619
dated 30.08.2015. The documents filed
alongwith the plant will have to be treated
as part and parcel of the plaint and can be
looked into by the Trial Court while
deciding an application under Order VII
Rule 11 CPC.

13. The phraseology "suit appears
from the statement in the plaint" under
Order VII Rule 11(d) CPC denotes that if
the Court on reading the contents of the
entire plaint forms an opinion that the
plaint is barred under any law, the Court is
within its jurisdiction to reject the plaint. In
the present case, as evident from the plaint
pleadings, the petitioner has cleverly
avoided to refer to any proceedings
initiated under the provisions of the
SARFAESI Act; that would not mean that
the Court should shut its eyes and does not
have to look into the documents annexed to
the plaint. Admittedly, the notice dated
31.08.2015 was issued under Section 14 of
the SARFAESI Act. Thus, the Court below
has rightly held that the proceedings under
the SARFAESI Act have been initiated and
there is a bar under Section 34 of the
SARFAESI Act. Further, it appears that the
Court below invoked its jurisdiction under
Section 151 CPC and returned the plaint to
be presented before the proper forum. Thus,
it cannot be said that the petitioner is left
without any remedy. For that matter, even
the relief of injunction or any other
prohibitory relief can be sought for by the
petitioner before the DRT."

29. The facts in R.V. Homes (India)
Pvt. Ltd. would show that the defendant
stood on a better foot so far as the classical
principles governing a motion under Order
VII Rule 11(d) of the Code is concerned,
inasmuch as the documents annexed to the
plaint did reveal that proceedings under the
SARFAESI Act had been taken, but
cleverly avoided mention of in the plaint.
The Court held that the papers filed along
with the plaint also ought to be looked into.
The case here goes a step ahead of that.
Nothing was said in the plaint about the
loan transaction affecting the suit property
between the plaintiff-opposite parties' sons
and
brothers,
and
defendant
No.1revisionist.
There
was
a
brazen
concealment of all that has already been
said. In a situation like this, it is not for the
Court to feel its hands tied down, for the
duty of the Court is not only to read the
plaint
meaningfully,
but
wholesomely
understand the case, in the circumstances,
that the suit has been instituted.

30. This Court is, therefore, of
opinion that it would be absolutely
permissible for the Court to look into
circumstances that are brought to its notice
vide an application under Section VII Rule
11 of the Code, short of considering the
defendant's pleas to understand what the
plaint is really about. If there are
circumstances pointed out by the defendant
that show that the plaintiff by brazen
suppression of very material facts has
indulged not just in clever drafting, but a
dishonest one, the Court would not be
powerless to look into those facts for the
purpose of exercising its jurisdiction under
Order VII Rule 11 of the Code.

31. The fact that the plaintiff-opposite
parties in their reply to the application
under Order VII Rule 11 of the Code have
admitted the fact that the two loanees are
their sons and brothers, the fact that they
have admitted that loans were availed by
Saurabh Bansal and Nakul Bansal, besides
that proceedings under the SARFAESI Act,
for a fact were also admitted, leave not the
slightest of doubt that all these facts were
deliberately suppressed in the plaint to
escape the rigors of Section 34 of the
620 INDIAN LAW REPORTS ALLAHABAD SERIES
SARFAESI Act, which otherwise attach to
bar the suit. The Trial Judge ought to have
considered it notwithstanding that these
facts were not mentioned in the plaint.

32.