# Smt. Noushad Begam v. Punjab National Bank & Ors

- **Citation:** (2025) 11 ILRA 1141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-25
- **Case number:** First Appeal No. 819 of 2025
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-noushad-begam-v-punjab-national-bank-ors-52625
- **Pages:** 12

## Text

_Characters 0–39,836 of 41,037. This is a partial read: ask again with offset=39836 for what follows._

11 All. Smt. Noushad Begam Vs. Punjab National Bank & Ors.
1141
right or title in the disputed property. The
defendant is bound to hand-over the
possession of the disputed property, as and
when demanded by the plaintiff.

Conclusion

104. In view of the aforesaid analysis,
the trial court has not erred in decreeing the
plaintiff 's suit for the relief of mandatory
injunction. Accordingly, this appeal has got
no merits and is liable to be dismissed.

105.
This
appeal
is
hereby
dismissed. Consequently, the impugned
judgment and decree dated 01.7.2019 of the
trial court in O.S. no.1213 of 2014 is
affirmed. Costs easy.

106. The plaintiff-respondent is also
entitled to get damages @ ₹ 10,000/- per month
from the defendant-appellant, as imposed by
this Court vide order dated 24.9.2019 from the
date of decree of the trial court i.e 01.07.2019,
till the actual and vacant possession of the
disputed property is handed to the plaintiff by
the defendant, in pursuance of the decree of the
trial court, as affirmed by this Court.

107. Interim order, if any, stands
vacated.

108. Office is directed to send back
the original trial court record, forthwith.

109. Office is directed to prepare the
decree, accordingly.
----------
(2025) 11 ILRA 1141
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.
First Appeal No. 819 of 2025

Smt. Noushad Begam ...Appellant
Versus
Punjab National Bank & Ors.
 ...Respondents

Counsel for the Appellant:
Shishir Kumar Tiwari

Counsel for the Respondents:
Sanjai Singh

ISSUE FOR CONSIDERATION
1. Whether the civil court has jurisdiction to
entertain the plaintiff's suit challenging the
alleged
fraudulent
guarantee/mortgage
documents, despite the bar under Section 34 of
the SARFAESI Act, 2002.
2. Whether vague allegations of fraud, without
specific particulars, are sufficient to bypass the
statutory bar and sustain a civil suit.

HEADNOTES
Civil Law - Code of Civil Procedure, 1908 -
Section 96, Order 7 Rule 11(d), Order 6
Rule 4, Order 41 Rule 11, - SARFAESI Act,
2002 - Section - 13(2), 13(4), 14, 17 34, -
Security Interest (Enforcement) Rules,
2002 - Rule 8(1), Rule 8(6) - First Appeal
U/section 96 of the CPC - filed by plaintiff -
challenging the impugned judgment and decree
- passed by the court of Civil Judge in Original
Suit - whereby the application of defendant no.
3 under order 7 Rule 11(d) CPC was allowed -
Civil Suit - against bank - authorized officer of
the bank filed an application under order 7 Rule
11(d) - the issue was whether civil court
jurisdiction is barred under Section 34 of the
SARFAESI Act when the plaintiff alleges fraud in
execution of guarantee/mortgage documents -
settled law that the civil courts may intervene
only in limited cases of clear, particularized
fraud or absurd claims, otherwise remedies lie
before the DRT under Section 17 - the
application showed that the plaintiff, an illiterate
parda-nashin woman, alleged fraud but failed to
plead specific particulars as required under
Order 6 Rule 4 CPC - court finds that - the trial
court rightly rejected the plaint under Order 7
Rule 11(d) CPC - held - the appellate court
affirmed the trial court's order, dismissed the
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal at admission stage under Order 41 Rule
11 CPC, and directed the plaintiff to pursue
remedies before the DRT.(Para 14, 15, 16, 17,
18)

Appeal Dismissed. (E-11)
CASE LAW CITED
1. Mardia Chemicals Ltd. v. Union of India
(2004) 4 SCC 311
2. Punjab & Sind Bank v. Frontline Corporation
Ltd. (2023) 16 SCC 331
3. Bank of Baroda Zonal Officer v. Jagdeep
Singh & Another (2024 AHC 98107)
4. Electrosteel Castings Ltd. v. UV Asset
Reconstruction Co. Ltd. (2022) 2 SCC 573

LIST OF ACTS
Code of Civil Procedure, 1908 (CPC) - SARFAESI
Act, 2002 - Security Interest (Enforcement)
Rules, 2002.

LIST OF KEYWORDS
SARFAESI Act, Section 34 bar - Civil court
jurisdiction - Fraudulent guarantee/mortgage -
Parda-nashin woman - Debt Recovery Tribunal
(DRT) - Order 7 Rule 11 CPC - Equitable
mortgage
-
Collusion and fraud
- nonperforming asset (NPA) - Auction notice

CASE ARISING FROM
Original Suit No. 382 of 2024: Smt. Noushad
Begam v. Punjab National Bank & Others =
Trial Court: Civil Judge (Senior Division),
Bulandshahar = Impugned Order: 08.05.2025
(plaint rejected under Order 7 Rule 11(d) CPC)
= Appeal: First Appeal under Section 96 CPC
before appellate court.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Shishir Kumar
Tiwari.
Counsel for Respondent(s): Shri Sanjai Singh.

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant first appeal under
section 96 CPC has been filed by the
plaintiff against the impugned judgment
and decree dated 08.5.2025 passed by the
court of Civil Judge(Senior Division)
Bulandshahar in O.S. No. 382 of 2024
Smt.Noushad Begam vs. Punjab National
Bank and others, whereby the application
of defendant no.3 under Order 7 Rule 11(d)
CPC has been allowed and consequently,
the plaint has been rejected on the ground
that the suit was barred under Section 34 of
the Securitisation and Reconstruction of
Financial Assets and Enforcement of
Security Interest Act, 2002( SARFAESI
Act, 2002).

2. The facts leading to the present
appeal in a nutshell are as under:-

(A)The plaintiff-appellant filed
O.S. No. 382 of 2024 in the trial court
against Punjab National Bank(defendant
no.1) and Harish Kumar Verma(defendant
no.5),
the
proprietor
of
Messers
Dharamveer Jewellers(defendant no.4) with
the averments that she is a very poor lady,
whose husband Sabir was a labourer
employed in the occupation of cleaning,
polishing and repairing gold and silver
jewellery with defendant no.4. She further
averred that in the beginning of year 2017
defendant no.5, Harish KumarVerma told
her husband that since he remains in the
possession of valuable gold-silver jewellery
during the process of cleaning and
repairing it, as such, for securing the above
valuable jewellery, surety was required and
then her husband had deposited the sale
deed of a house, which was in her name,
with the above defendant, since her
husband was not having any property in his
name. She further averred that her above
sale deed was kept by defendant no.5 as
surety for giving her husband employment.

(B)The plaintiff further averred in
the plaint that the defendants Punjab
National Bank and Harish Kumar Verma
colluded with each other and consequently,
the bank sanctioned a cash credit loan of ₹
11 All. Smt. Noushad Begam Vs. Punjab National Bank & Ors.
1143
32 lakhs on 6.7.2017 in favour of the above
firm of the defendant, which came into the
knowledge of the plaintiff after having oral
talks
with
the
defendant
Harish
KumarVerma. It was further averred that
the bank sanctioned the above loan to the
defendant no.4 & 5 illegally without
obtaining the consent of the plaintiff. The
sale deed of the plaintiffs house was
deposited in equitable mortgage, fraudulent
guarantee papers were prepared on her
behalf and for causing illegal gain to the
defendant firm and for causing wrongful
loss to the plaintiff, the above loan was
sanctioned by the bank to the defendant
firm.

(C)It was further averred by the
plaintiff that she is a poor, illiterate, pardanashin woman of rural background, who is
unaware of the legal niceties. She neither
deposited the sale deed of her house as a
surety nor stood as a guarantor for the loan
sanctioned by the bank to defendant no. 4
& 5, she never executed any guarantee
agreement, surety agreement etc. in favour
of the bank for the alleged loan and if any
such
document
was
having
her
signature/thumb impression, then it was a
fraudulent
and
fabricated
document
because she never executed any such
agreement/document in favour of the bank.
She further averred that she has only the
disputed house of area 48 square yard, to
reside with her family and as such, she had
no reason to give surety of this house to the
bank.

(D)She further averred that she
was informed by the defendant bank that
she was a guarantor of the loan sanctioned
to defendant no. 4 & 5, to which she had
protested and then, the defendant bank had
assured her in the year 2020 that it will not
take any action against her and she will be
absolved from the guarantee/surety given
by her, to which she had believed.

(E)She further averred that the
defendant
Harish
KumarVerma
had
obtained the sale deed of the house by
practising fraud on her husband, which was
subsequently used malafidely for obtaining
loan from the defendant bank. She further
averred that on the basis of her fraudulent
guarantee, the defendant bank intends to
realise the loan from her disputed house, on
the pretext that the house has been
mortgaged in favour of the defendant bank.

(F)She further averred that the
defendant bank had assured her that they
will firstly realise the loan from the
mortgaged shop of the defendant no.5 and
other
property
situated
in
Sarai
Ghasi,pargana and tehsil Sikandrabad,
District Bulandshahar, which was currently
valued at about ₹ 80 lakhs, on which the
first charge is of the defendant bank, from
which the defendant bank may realise its
loan, in accordance with law.

(G)She further averred that the
defendant bank and Harish KumarVerma
has practised fraud on her and also betrayed
her, malafidely and illegally gave her
notice dated 22.3.2024 which was received
by her on 5.4.2024, and by reading it, she
became aware that the defendant bank has
not absolved her as guarantor, who intends
to illegally auction her house for realising
the unpaid loan. She averred that the
principal borrower of the alleged cash
credit loan of ₹ 32 lakhs obtained from the
defendant bank, are defendant no. 4 & 5,
who are solely responsible for paying the
above loan under equitable mortgage. The
plaintiff has been served with the above
illegal notice by the defendant bank, under
which the defendants have got no right to
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
sell her disputed house. She further averred
that her liability can never be joint and
several with defendant no. 4 & 5.

3. The plaintiff has claimed the
following reliefs from the court:-

(a)By
a
declaratory
decree
granted in favour of the plaintiff against the
defendant's, it be declared that the alleged
guarantee/surety executed by the plaintiff
for securing cash credit loan sanctioned on
6.7.2017 was fabricated, fraudulent, fake,
void and ineffective, which was not binding
on the plaintiff and on the basis of these
documents, the defendant no.1 to 3 do not
have any legal right to auction her disputed
house, in pursuance of alleged illegal and
void notice dated 22.3.2024.

(b)By
decree
of
permanent
injunction granted in favour of the plaintiff
against the defendant no.1 to 3, the above
defendants be restrained from auctioning
her house for realisation of the alleged
loan sanctioned on 6.7.2017 in favour of
defendant no.4 & 5 ,in pursuance of
fraudulent and fabricated surety/guarantee
documents
and
illegal
notice
dated
22.3.2024.

4. The defendant no.3, the authorised
officer of the Bulandshahar Divisional Office
of the defendant Punjab National Bank,
moved an application under Order 7 Rule 11
CPC before the trial court on the ground that
the defendant no.4 had obtained a loan from
the defendant Punjab National Bank of ₹ 32
lakhs in the year 2017, and as guarantee, the
disputed property was mortgaged with the
defendant bank by the plaintiff on the request
of defendant no.4. It was further submitted
that since the loan was not repaid by the
defendant no.4, as such his loan account was
declared non performing asset (NPA) and
then, the defendant bank gave a demand
notice under Section 13(2) of the SARFAESI
Act,2002 to the defendant no.4. Thereafter,
the defendant bank had given a notice of
taking possession under Section 13(4) of the
above Act read with Rule 8(1) of the Security
Interest(Enforcement) Rules, 2002.

5. It was further submitted by the
defendant that on 20.8.2019 the defendant
bank, for obtaining the physical possession of
the disputed property, had moved an
application before the District Magistrate
under Section 14 of the above Act, which
was allowed on 23.1.2020 and thereafter, the
Senior Supdt. of Police, Bulandshahar was
directed to provide the police force to the
defendant bank on demand. It was further
submitted that on 22.3.2024 the defendant
bank for auctioning the disputed property
under Rule 8(6) of the above Rules of 2002
had given notice to the defendant no.4 and
the plaintiff. It was further submitted that
under Section 34 of the SARFAESI
Act,2002, if any action was taken under this
Act, then the civil court has got no
jurisdiction to interfere and grant an
injunction or issue any declaratory decree.
The only remedy was to prefer an appeal
under Section 17 of the SARFAESI Act,2002
before
the
concerned
Debt
Recovery
Tribunal(DRT). It was specifically submitted
by the defendant that since regarding the
disputed property proceedings under the
SARFAESI Act,2002 have been initiated by
the bank as such, under Section 34 of the
above Act, the Court has got no jurisdiction
to try and decide the suit. The suit was not
legally maintainable and was liable to be
dismissed at the threshold.

6. The plaintiff opposed the above
application of the defendant bank on the
ground that she has not obtained the loan,
she has been fraudulently made guarantor
11 All. Smt. Noushad Begam Vs. Punjab National Bank & Ors.
1145
of the alleged loan whereas, she had not
executed any guarantee deed in favour of
the defendant bank. She further submitted
that a fraud was practised upon her, which
has been elaborately mentioned by her in
the plaint, as such, suit was cognizable by
civil court because the DRT was not vested
with the right to decide a case where there
were allegations of fraud and collusion. She
further averred that the officials of the
defendant
bank
had
colluded
with
defendant no. 4 & 5, who had prepared
fraudulent guarantee papers of the plaintiff
which was used by the defendant no. 4 for
obtaining loan from the defendant bank
with malafide intention as guarantor, which
has been challenged by her in the suit. She
specifically stated that since she has filed
the suit on the ground of collusion and
fraud practised on her by the defendants as
such the suit was not barred under Section
34 of the SARFAESI Act,2002. She further
submitted that the relief claimed by her can
only be granted by a civil court, which
cannot be granted by the DRT. The
defendant's application under Order 7 Rule
11 CPC was not legally maintainable and
was liable to be dismissed.

7. The trial court by impugned order
dated 8.5.2025 has allowed the application
of defendant no. 3 under Order 7 Rule 11
CPC on the ground that it is the admitted
case of the plaintiff that a notice has been
issued to her under Section 13 of the
SARFAESI Act,2002 for auctioning the
disputed property, against which an appeal
under Section 17 of the above Act lies
before the Debt Recovery Tribunal (DRT).
The trial court further opined that the
plaintiff has cleverly drafted the plaint
without specifically stating in which
manner, how and when a fraud was
practised upon her so as to enable her to
circumvent the prohibition of Section 34 of
the above Act. The trial court concluded
that it lacked jurisdiction to hear and decide
the suit, since the suit was barred under
Section 34 of the SARFAESI Act,2002 and
accordingly, the plaint was rejected under
Order 7 Rule 11(d) CPC, aggrieved against
which, the plaintiff has filed the instant first
appeal under section 96 of the CPC.

8. Learned counsel for the plaintiffappellant submitted that the plaintiff being
an
illiterate,parda-
nashin
woman
belonging to a rural background, a fraud
was practised upon her by the defendant
Punjab National Bank and Harish Kumar
Verma,
the
proprietor
of
Messers
Dharamveer Jewellers. He submitted that
the plaintiff never went to the bank to
mortgage her house for securing the alleged
loan obtained by the defendant firm, from
the bank. He further submitted that the
deceased husband of the plaintiff was a
labourer, who used to clean and repair gold
- silver jewellery of the defendant firm and
in order to secure the above jewellery, the
sale deed of the plaintiffs house was given
as surety to the defendant firm, but the
alleged house of the plaintiff was never
mortgaged in favour of the defendant bank
for securing the loan obtained by the firm,
from the defendant bank. Learned counsel
further submitted that since a fraud was
practised on the plaintiff by the defendants,
the civil court had jurisdiction in this matter
as such, the suit could not have been
dismissed at the threshold under Order 7
Rule 11(d) CPC, moreso when a triable
issue was raised by the plaintiff. It was
prayed that the appeal be admitted, allowed
and the matter be remanded to the trial
court for deciding it on merits.

9. Learned counsel for the defendantrespondent
Punjab
National
Bank
submitted that the plaintiffs plea of fraud
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
was false, which was not substantiated
from any documentary evidence. The
plaintiff had willingly mortgaged her
disputed house in favour of the defendant
bank for securing the loan obtained by the
defendant firm. The plaintiff had also stood
guarantor for the loan obtained by the
defendant firm, from the bank and had also
executed mortgage deed, guarantee deed
and other papers in favour of the defendant
bank willingly, without any coercion, as
such, the plea of the plaintiff that a fraud
was practised upon her and the alleged
documents executed by her in favour of the
defendant bank are fraudulent, is untenable.
He further submitted that the case set up by
the plaintiff in the plaint is unbelievable
and improbable. Learned counsel submitted
that even in such cases, the jurisdiction of
the civil court is barred under Section 34 of
the
SARFAESI
Act,2002
since,
proceedings under Section 13(4) of this Act
have
already
been
initiated
by
the
defendant bank, and consequently, the
possession of the disputed house, which
was mortgaged by the plaintiff in favour of
the bank, has already been legally taken by
the bank, which was put to auction as such,
the plaintiff can challenge the above
proceedings under Section 17 of the above
Act,
by
initiating
appropriate
legal
proceedings before the concerned Debt
Recovery Tribunal (DRT). In support of his
above contention, he has relied upon the
case law of Punjab and Sind Bank vs.
Frontline Corporation Ltd. (2023) 16 SCC
331 and Bank of Baroda Zonal officer vs.
Jagdeep Singh and another, Neutral
Ctation 2024 AHC 98107. With these
submissions it was prayed that the appeal is
meritless and be dismissed at the admission
stage.

10. I've heard the learned counsel of
the parties, perused the impugned judgment
and documents submitted with the appeal
and the case law submitted by the parties.

11. The Apex Court in the case of
Mardia Chemicals Ltd. and others vs.
Union of India and others (2004)4 SCC
311(by 3 Judges), while analysing the
provisions of SARFAESI Act,2002, held as
under:-

50. It has also been submitted
that an appeal is entertainable before the
Debts Recovery Tribunal only after such
measures as provided in sub-section (4) of
Section 13 are taken and Section 34 bars to
entertain any proceeding in respect of a
matter which the Debts Recovery Tribunal
or the Appellate Tribunal is empowered to
determine. Thus before any action or
measure is taken under sub-section (4) of
Section 13, it is submitted by Mr Salve, one
of the counsel for the respondents that
there would be no bar to approach the civil
court. Therefore, it cannot be said that no
remedy is available to the borrowers. We,
however, find that this contention as
advanced by Shri Salve is not correct. A
full reading of Section 34 shows that the
jurisdiction of the civil court is barred in
respect of matters which a Debts Recovery
Tribunal or an Appellate Tribunal is
empowered to determine in respect of any
action taken "or to be taken in pursuance
of any power conferred under this Act".
That is to say, the prohibition covers even
matters which can be taken cognizance of
by the Debts Recovery Tribunal though no
measure in that direction has so far been
taken under sub-section (4) of Section 13. It
is further to be noted that the bar of
jurisdiction is in respect of a proceeding
which matter may be taken to the Tribunal.
Therefore, any matter in respect of which
an action may be taken even later on, the
civil court shall have no jurisdiction to
11 All. Smt. Noushad Begam Vs. Punjab National Bank & Ors.
1147
entertain any proceeding thereof. The bar
of civil court thus applies to all such
matters which may be taken cognizance of
by the Debts Recovery Tribunal, apart from
those matters in which measures have
already been taken under sub-section (4) of
Section 13.

51. However, to a very limited
extent jurisdiction of the civil court can
also be invoked, where for example, the
action of the secured creditor is alleged to
be fraudulent or his claim may be so
absurd and untenable which may not
require any probe whatsoever or to say
precisely to the extent the scope is
permissible to bring an action in the civil
court in the cases of English mortgages.
We find such a scope having been
recognized in the two decisions of the
Madras High Court which have been relied
upon heavily by the learned Attorney
General as well appearing for the Union of
India, namely, V. Narasimhachariar [AIR
1955 Mad 135] , AIR at pp. 141 and 144, a
judgment of the learned Single Judge
where it is observed as follows in para 22:
(AIR p. 143)

"22.
The
remedies
of
a
mortgagor against the mortgagee who is
acting in violation of the rights, duties and
obligations are twofold in character. The
mortgagor can come to the court before
sale with an injunction for staying the sale
if there are materials to show that the
power of sale is being exercised in a
fraudulent or improper manner contrary to
the terms of the mortgage. But the
pleadings in an action for restraining a
sale by mortgagee must clearly disclose a
fraud or irregularity on the basis of which
relief is sought: Adams v. Scott [(1859) 7
WR 213, 249] . I need not point out that
this restraint on the exercise of the power
of sale will be exercised by courts only
under the limited circumstances mentioned
above because otherwise to grant such an
injunction would be to cancel one of the
clauses of the deed to which both the
parties had agreed and annul one of the
chief
securities
on
which
persons
advancing moneys on mortgages rely. (See
Ghose, Rashbehary: Law of Mortgages,
Vol. II, 4th Edn., p. 784.)"

12. The Apex Court in the case of
Punjab and Sind Bank(supra) while
analysing section 34 of the SARFAESI
Act,2002, held as under:-

20. The issue as to the exclusion
of the jurisdiction of a civil court is no
more res integra. The provisions of Section
34 of the Sarfaesi Act have been considered
by a Bench of three Judges of this Court in
Mardia Chemicals Ltd. v. Union of India
[Mardia Chemicals Ltd. v. Union of India,
(2004) 4 SCC 311] . It will be relevant to
refer to the following observations of this
Court in the said case : (SCC pp. 349-50,
paras 50-51)

"50. It has also been submitted
that an appeal is entertainable before the
Debts Recovery Tribunal only after such
measures as provided in sub-section (4) of
Section 13 are taken and Section 34 bars to
entertain any proceeding in respect of a
matter which the Debts Recovery Tribunal
or the Appellate Tribunal is empowered to
determine. Thus before any action or
measure is taken under sub-section (4) of
Section 13, it is submitted by Mr Salve, one
of the counsel for the respondents that
there would be no bar to approach the civil
court. Therefore, it cannot be said that no
remedy is available to the borrowers. We,
however, find that this contention as
advanced by Shri Salve is not correct. A
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
full reading of Section 34 shows that the
jurisdiction of the civil court is barred in
respect of matters which a Debts Recovery
Tribunal or an Appellate Tribunal is
empowered to determine in respect of any
action taken "or to be taken in pursuance
of any power conferred under this Act".
That is to say, the prohibition covers even
matters which can be taken cognizance of
by the Debts Recovery Tribunal though no
measure in that direction has so far been
taken under sub-section (4) of Section 13. It
is further to be noted that the bar of
jurisdiction is in respect of a proceeding
which matter may be taken to the Tribunal.
Therefore, any matter in respect of which
an action may be taken even later on, the
civil court shall have no jurisdiction to
entertain any proceeding thereof. The bar
of civil court thus applies to all such
matters which may be taken cognizance of
by the Debts Recovery Tribunal, apart from
those matters in which measures have
already been taken under sub-section (4) of
Section 13.

51. However, to a very limited
extent jurisdiction of the civil court can
also be invoked, where for example, the
action of the secured creditor is alleged to
be fraudulent or his claim may be so
absurd and untenable which may not
require any probe whatsoever or to say
precisely to the extent the scope is
permissible to bring an action in the civil
court in the cases of English mortgages.
We find such a scope having been
recognised in the two decisions of the
Madras High Court which have been relied
upon heavily by the learned Attorney
General as well appearing for the Union of
India, namely, V. Narasimhachariar [V.
Narasimhachariar
v.
Egmore
Benefit
Society, 1954 SCC OnLine Mad 352 : AIR
1955 Mad 135] , AIR at pp. 141 & 144, a
judgment of the learned Single Judge
where it is observed as follows : (SCC
OnLine Mad para 22 : AIR para 22)

'22. The remedies of a mortgagor
against the mortgagee who is acting in
violation
of
the
rights,
duties
and
obligations are twofold in character. The
mortgagor can come to the court before
sale with an injunction for staying the sale
if there are materials to show that the
power of sale is being exercised in a
fraudulent or improper manner contrary to
the terms of the mortgage. But the
pleadings in an action for restraining a
sale by mortgagee, must clearly disclose a
fraud or irregularity on the basis of which
relief is sought : Adams v. Scott [Adams v.
Scott, (1859) 7 WR 213, 249] . I need not
point out that this restraint on the exercise
of the power of sale will be exercised by
courts only under the limited circumstances
mentioned above because otherwise to
grant such an injunction would be to cancel
one of the clauses of the deed to which both
the parties had agreed and annul one of the
chief
securities
on
which
persons
advancing moneys on mortgages rely. (See
Ghose, Rashbehary : Law of Mortgages,
Vol. II, 4th Edn., p. 784.)'"

21. It could thus be seen that this
Court in Mardia Chemicals [Mardia
Chemicals Ltd. v. Union of India, (2004) 4
SCC 311] has held that the jurisdiction of
the civil court is barred in respect of
matters which a DRT or an Appellate
Tribunal is empowered to determine in
respect of any action taken "or to be taken
in pursuance of any power conferred under
this Act". The Court has held that the
prohibition covers even matters which may
be taken cognizance of by the DRT though
no measure in that direction has so far
been taken under sub-section (4) of Section
11 All. Smt. Noushad Begam Vs. Punjab National Bank & Ors.
1149
13 of the Sarfaesi Act. It has been held that
the bar of jurisdiction is in respect of a
proceeding which matter may be taken to
the Tribunal. It has categorically been held
that any matter in respect of which an
action may be taken even later on, the civil
court shall have no jurisdiction to entertain
any proceeding thereof. The Court held
that the bar of civil court thus applies to all
such
matters
which
may
be
taken
cognizance of by the DRT, apart from those
matters in which measures have already
been taken under sub-section (4) of Section
13 of the Sarfaesi Act.

22. This Court has further held in
Mardia Chemicals [Mardia Chemicals Ltd.
v. Union of India, (2004) 4 SCC 311] that,
to a very limited extent jurisdiction of the
civil court can also be invoked, where for
example, the action of the secured creditor
is alleged to be fraudulent or his claim may
be so absurd and untenable which may not
require any probe whatsoever or to say
precisely to the extent the scope is
permissible to bring an action in the civil
court in the cases of English mortgages.

23. In the present case, it cannot
be said that the action of the secured
creditor i.e. the appellant is either
fraudulent or that its claim is so absurd or
untenable which may not require any probe
whatsoever. It is further to be noted that the
Sarfaesi Act itself provides remedies to an
aggrieved party in view of the provisions of
Sections 17 and 18.

13. The Apex Court in the case of
Electrosteel Castings Ltd. vs. UV Asset
Reconstruction Co. Ltd. and others
(2022)2 SCC 573, while analysing whether
plaintiff has raised the plea of fraud to
circumvent the provision of Section 34 of
the SARFAESI Act,2002, held as under:-

7.1. It is the case on behalf of the
plaintiff-appellant herein that in the plaint
there are allegations of "fraud" with
respect to the assignment agreement dated
30-6-2018 and it is the case on behalf of
the
plaintiff-appellant
herein
that
assignment agreement is "fraudulent"
inasmuch as after the full payment as per
the approved resolution plan under IBC
and the original corporate debtor is
discharged, there shall not be any debt by
the
plaintiff-appellant
herein
as
a
guarantor and therefore assignment deed is
fraudulent. Therefore, it is the case on
behalf of the plaintiff-appellant herein that
the suit in which there are allegations of
"fraud" with respect to the assignment
deed shall be maintainable and the bar
under Section 34 of the Sarfaesi Act shall
not be applicable.

7.2. However, it is required to be
noted that except the words used "fraud"/
"fraudulent"
there
are
no
specific
particulars pleaded with respect to the
"fraud". It appears that by a clever
drafting and using the words "fraud"/
"fraudulent"
without
any
specific
particulars with respect to the "fraud", the
plaintiff-appellant herein intends to get out
of the bar under Section 34 of the Sarfaesi
Act and wants the suit to be maintainable.
As per the settled proposition of law mere
mentioning and using the word "fraud"/
"fraudulent" is not sufficient to satisfy the
test of "fraud". As per the settled
proposition of law such a pleading/using
the word "fraud"/ "fraudulent" without
any
material
particulars
would
not
tantamount to pleading of "fraud".

8.
In
Bishundeo
Narain
[Bishundeo Narain v. Seogeni Rai, 1951
SCC 447 : 1951 SCR 548] in para 22, it is
observed and held as under : (SCC p. 454)
1150 INDIAN LAW REPORTS ALLAHABAD SERIES

"22. ... Now if there is one rule
which is better established than any other,
it is that in cases of fraud, undue influence
and coercion, the parties pleading it must
set forth full particulars and the case can
only be decided on the particulars as laid.
There can be no departure from them in
evidence.
General
allegations
are
insufficient even to amount to an averment
of fraud of which any court ought to take
notice however strong the language in
which they are couched may be, and the
same applies to undue influence and
coercion. See Order 6 Rule 4, Civil
Procedure Code."

8.1. Similar view has been
expressed in Ladli Parshad Jaiswal [Ladli
Parshad Jaiswal v. Karnal Distillery Co.
Ltd., (1964) 1 SCR 270 : AIR 1963 SC
1279] and after considering the decision of
the Privy Council in Bharat Dharma
Syndicate Ltd. v. Harish Chandra [Bharat
Dharma Syndicate Ltd. v. Harish Chandra,
1937 SCC OnLine PC 24 : (1936-37) 64 IA
143] , it is held that a litigant who prefers
allegation of fraud or other improper
conduct must place on record precise and
specific details of these charges. Even as
per Order VI Rule 4 in all cases in which
the
party
pleading
relies
on
any
misrepresentation, fraud, breach of trust,
wilful
default,
or
undue
influence,
particulars shall be stated in the pleading.
Similarly in K.C. Sharma & Co. [Union of
India v. K.C. Sharma & Co., (2020) 15
SCC 209] it is held that "fraud" has to be
pleaded with necessary particulars. In Ram
Singh [Ram Singh v. Gram Panchayat
Mehal Kalan, (1986) 4 SCC 364] , it is
observed and held by this Court that when
the suit is barred by any law, the plaintiff
cannot be allowed to circumvent that
provision by means of clever drafting so as
to avoid mention of those circumstances by
which the suit is barred by law of
limitation.

8.2. In T. Arivandandam v. T.V.
Satyapal
[T.
Arivandandam
v.
T.V.
Satyapal, (1977) 4 SCC 467] , it is
observed and held in para 5 as under :
(SCC p. 470)

"5. We have not the slightest
hesitation in condemning the petitioner for
the gross abuse of the process of the court
repeatedly and unrepentantly 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."

8.3. A similar view has been
expressed by this Court in the recent
decision in P. Selathal [Canara Bank v. P.
Selathal, (2020) 13 SCC 143] .

9.
Having
considered
the
pleadings and averments in the suit more
particularly the use of word "fraud" even
considering the case on behalf of the
plaintiff, we find that the allegations of
"fraud" are made without any particulars
and only with a view to get out of the bar
11 All. Smt. Noushad Begam Vs. Punjab National Bank & Ors.
1151
under Section 34 of the Sarfaesi Act and by
such a clever drafting the plaintiff intends
to bring the suit maintainable despite the
bar under Section 34 of the Sarfaesi Act,
which is not permissible at all and which
cannot be approved. Even otherwise it is
required to be noted that it is the case on
behalf of the plaintiff-appellant herein that
in view of the approved resolution plan
under IBC and thereafter the original
corporate debtor being discharged there
shall not be any debt so far as the plaintiffappellant herein is concerned and therefore
the assignment deed can be said to be
"fraudulent".

10. The aforesaid cannot be
accepted. By that itself the assignment deed
cannot be said to be "fraudulent". In any
case, whether there shall be legally
enforceable debt so far as the plaintiffappellant herein is concerned even after
the approved resolution plan against the
corporate debtor still there shall be the
liability of the plaintiff and/or the assignee
can be said to be secured creditor and/or
whether any amount is due and payable by
the plaintiff, are all questions which are
required to be dealt with and considered by
the DRT in the proceedings initiated under
the Sarfaesi Act.

11. It is required to be noted that
as such in the present case the assignee has
already initiated the proceedings under
Section 13 which can be challenged by the
plaintiff-appellant
herein
by
way
of
application under Section 17 of the
Sarfaesi Act before the DRT on whatever
the legally available defences which may
be available to it. We are of the firm
opinion that the suit filed by the plaintiffappellant
herein
was
absolutely
not
maintainable in view of the bar contained
under Section 34 of the Sarfaesi Act.
Therefore, as such the courts below have
not committed any error in rejecting the
plaint/dismissing the suit in view of the bar
under Section 34 of the Sarfaesi Act.

12. In view of the above and for
the reasons stated above, the present
appeal fails and the same deserves to be
dismissed and is accordingly dismissed.
However, it will be open for the appellant
herein to initiate appropriate proceedings
before the DRT under Section 17 of the
Sarfaesi Act against the initiation of the
proceedings by the assignee-Respondent 1
herein under Section 13 of the Sarfaesi Act
inter alia on the ground : (1) that the
assignee cannot be said to be secured
creditor so far as the appellant is
concerned; (2) that there is no amount due
and payable by the plaintiff-appellant
herein on the ground that in view of the
proceedings
under
IBC
against
the
corporate debtor and the corporate debtor
being discharged after the approved
resolution plan, there shall not be any
enforceable debt against the appellant. If
such an application is filed within a period
of two weeks from today the same be
considered in accordance with law and on
merits after complying with all other
requirements which may be required while
filing the application under Section 17 of
the Sarfaesi Act.

14. From the law laid down by the
Apex Court in the case of Mardia
Chemicals Ltd.(supra)and Punjab and
Sind Bank(supra) it is apparent that in
cases where the secured creditor has
initiated proceedings under SARFAESI
Act,2002, against the borrower/guarantor,
then only to a very limited extent
jurisdiction of the civil court can also be
invoked, where the action of the secured
creditor is alleged to be fraudulent or his
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
claim may be so absurd and untenable
which
may
not
require
any
probe
whatsoever or to say precisely to the extent
the scope is permissible to bring an action
in the civil court in the cases of English
mortgages. Otherwise, the jurisdiction of
the civil court is barred under Section 34 of
the above Act.

15. From the law laid down by the
Apex Court in the case of Electrosteel
Castings Ltd.(supra) it is evident that if the
allegations of fraud are made without any
particulars,only with a view to get out of
the bar enacted under Section 34 of the
SARFAESI Act,2002 and by such a clever
drafting the plaintiff intends to make the
suit maintainable despite the above bar, it is
neither permissible nor it can be approved.
It was further held by the Apex Court that
the plaintiff can avail the remedy by
moving application under Section 17 of the
above Act before the DRT, on all legal
defences available to it.

16. In the instant case the plaintiff -
appellant has also raised a plea of fraud
being practised on her in her plaint but
the essential particulars of fraud such as
when, in which manner and by whom
fraud was practised on her, while
sanctioning the loan by the defendant
bank in favour of the defendant firm, has
not been disclosed by the plaintiff. It is
apparent that only in order to circumvent
the bar of Section 34 of the SARFAESI
Act,2002 the plaintiff has raised the plea
of fraud in the plaint, which is not
substantiated by essential particulars of
fraud in accordance with Order 6 Rule 4
CPC, as such, the trial court has not
committed any illegality in allowing the
application of the defendant bank under
Order
7
Rule
11(d)
CPC
and
consequently, rejecting the plaint.

17.