[2025:RJ-JP:10605] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Revision Petition No. 93/2019 Uco Bank Through Manager, Opposite MBS Hospital, Nayapura, Kota (Rajasthan) ----Petitioner Versus 1. Vikas Mittal S/o Shri Umesh Mittal R/o Uma Grah, New Post Office Road, Kota Junction, Kota (Raj) Respondent/Plaintiff 2. Umesh Mittal S/o Late Shri Suresh Chand Mittal R/o Uma Grah, New Post Office Road, Kota Junction, Kota (Raj) 3. Akash Mittal S/o Shri Umesh Mittal R/o Uma Grah, New Post Office Road, Kota Junction, Kota (Raj) 4. Smt. Smriti Mittal W/o Shri Akash Mittal R/o Uma Grah, New Post Office Road, Kota Junction, Kota (Raj) ----Respondents For Petitioner(s) : Mr. C.P. Sharma For Respondent(s) : Mr. Ashish Sharma Upadhyay with Mr. Jai Kishan Singh Mr. P.S. Naruka Mr. Rishi Parashar HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 06/03/2025 1. The instant revision petition is preferred by petitioner- defendant/Bank aggrieved from dismissal of application under Order VII Rule 11 CPC on 08.02.2019 in Civil Suit No.643/2018 by learned Civil Judge, Kota (North), Kota. [2025:RJ-JP:10605] (2 of 12) [CR-93/2019] 2. Learned counsel for the petitioner (defendant) while placing reliance upon judgments in case of Jagdish Singh Vs. Heeralal and others : (2014) 1 SCC 479 and State Bank of Patiala Vs. Mukesh Jain and Ors.: AIR 2016 SC 5140 submitted that if a bank or financial institution initiated a process to recover debt advance by it then the jurisdiction of civil court is barred under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘Securitisation Act’). He further submitted that even under Section 17 of Securitisation Act, no proceeding can be initiated in any of Civil Court. He further submitted that Section 35 of Securitisation Act oversides other laws and reading with Section 9 of CPC would make it clear that a Civil Court has no jurisdiction to entertain civil suit of any nature. He further referred judgment in case of Sushma Suri and Anr. Vs. Mahamedha Urban Co-operative Bank Limited and Ors. : 2011 (178) DLT 111 and submitted that under Section 17 of Securitisation Act, any person who is aggrieved, can only approach Debt Recovery Tribunal (DRT) not a Civil Court. He further referred the provision of Section 34 of Securitisation Act and Order VII Rule 11 of CPC and submitted that the suit filed by respondent No.1 (plaintiff) is barred by law and is liable to be rejected. 3. Learned counsel for petitioner further submitted that respondent Nos. 2 to 4 have mortgaged a property in lieu of advance/loan and these loan accounts have become NPA, therefore, the Bank has initiated a recovery process. He further submitted that a recovery certificate was already issued but [2025:RJ-JP:10605] (3 of 12) [CR-93/2019] respondent No.1-plaintiff has challenged the process of recovery before the Civil Court against provision of Section 34 of Securitisation Act. He further submitted that plaintiff-respondent No.1 in connivance with other borrowers and guarantors has executed a fraudulent gift deed and on basis of this fraudulent document respondent No.1 is trying to delay recovery of debt from petitioner-Bank. He further referred the application for credit facility and submitted that this application was filed on 30.05.2016 and guarantee document was executed on 30.05.2016, later with fraudulent intention and without disclosing to the Bank, a registered gift deed was executed by respondent No.2-Umesh Mittal in favour of respondent No.1 (plaintiff). At last, he submitted that a civil suit is not maintainable as the plaintiff was already afforded sufficient opportunity to defend his cause before the Debt Recovery Tribunal. 4. Aforesaid contentions were opposed by learned counsel for the respondent No.1 (plaintiff) and he submitted that the property mentioned in plaint was gifted to plaintiff by his father Umesh Mittal and a registered gift deed was executed on 31.05.2016. He submitted that after 31.05.2016, if any document is executed by any of the borrower or guarantor then it is a nullity and having no effect on rights of the plaintiff. He further pointed out that the search report submitted by a penal lawyer of Bank on 16.06.2016 is itself sufficient to indicate that this report is a manipulative piece of document. He further referred contents of FIR No.680/2019 registered at PS Nayapura, Kota City and submitted that after investigation, police has arrested Akash Mittal and [2025:RJ-JP:10605] (4 of 12) [CR-93/2019] Umesh Mittal for committing fraud. He further submitted that even the Bank officials are involved in fraudulent transaction. At last, he submitted that in case of fraudulent transfer and misrepresentation, only civil court has jurisdiction to decide the litigation between the parties. 5. He further placed reliance upon the judgments in case of Mardia Chemicals and Ors. Vs. Union of India and Ors. AIR 2004 SC 2371, Punjab and Sind Bank Vs. Frontline Corporation Ltd. : 2023 INSC 368, Indian Overseas Bank Vs. M/s. Crescent Engineering Corporation and Ors. : 2018(1) PLR 714, Prabha Jain Vs. Central Bank of India and Ors. [2013] 3 BC 571, Sagar Singh Damor Vs. Deepak Sharma [2022] 1 MPWN 73, ICICI Bank Ltd. Vs. Pramod Kumar Garg [2018] 1 BC 331 and Smt. Nanjamma Vs. Sri N. Narasimhamurthy [2021] 5 KarLJ 354. Learned counsel further submitted that in the instant case the plaintiff has filed a suit only on ground of fraud and plaintiff has able to establish the ground of fraud, therefore, the suit filed by plaintiff is maintainable and trial court has rightly dismissed the application under Order VII Rule 11 CPC. 6. Heard learned counsel for the parties and perused the judgments as referred by learned counsel for the parties. 7. Brief facts of the case are that respondent No.1-plaintiff has filed a civil suit inter alia challanging the proceedings initiated by petitioner Bank under the Securitisation Act by filing suit for declaration and mandatory injunction under Sections 34 and 38 of Specific Relief Act. The plaintiff has averred that he is owner of [2025:RJ-JP:10605] (5 of 12) [CR-93/2019] first floor of house knows as “Uma Grah” admeasuring 2714.24 sq. ft. The plaintiff has further averred that this floor was gifted to him by his father Umesh Mittal by a registered gift deed on 31.05.2016 and since than this property is in ownership and possession of plaintiff. As per plaintiff-defendant No.2-Umesh Mittal and defendant No.3-Akash Mittal have committed fraud and they have taken loan of sixty lakhs rupees from defendant No.1- Bank after mortgaging the property which was already gifted to plaintiff. The plaintiff has further averred that on default the Bank has initiated recovery proceedings under the Securitisation Act and after knowledge of Securitisation Act, the plaintiff has filed a suit for declaration and mandatory injunction. 8. The defendant No.1 (petitioner herein) has filed an application under Order VII Rule 11 CPC on 08.01.2019 and same was dismissed by the trial court on 08.02.2019. Therefore, this revision petition is preferred. 9. The documents referred and submitted by petitioner clearly indicate that application for loan was submitted by Akash Mittal on 30.05.2016 and form of guarantee was also submitted by Umesh Mittal on 30.05.2016. After these two documents, Umesh Mittal has executed a registered gift deed on 31.05.2016. The documents also indicate that Mr. Kamal Nayan Saxena has submitted non-encumbrance certificate and detailed report of title to the Bank on 16.06.2016. Aforesaid indicates that a loan application was submitted on 30.05.2016 and guarantee form was also submitted on 30.05.2016, thereafter, on 31.05.2016 a registered gift deed was executed, by Umesh Mittal. [2025:RJ-JP:10605] (6 of 12) [CR-93/2019] 10. A perusal of document submitted by learned counsel for the respondent No.1-plaintiff also indicates that UCO Bank has filed a recovery proceedings before the Debt Recovery Tribunal, Jaipur and respondent plaintiff Vikas Mittal was a party to these proceedings. It also indicates that Vikas Mittal has not only filed reply but also filed affidavit of one of the defendants Samriti Mittal. It is an admitted position that Vikas Mittal is neither a guarantor nor a debtor. 11. Here in this case, an FIR No.680/2019 was also registered on 05.11.2019 by Vikas Mittal through a complaint filed under Section 156(3) of CrPC. Police has investigated the matter and further found criminal involvement of Akash Mittal and others. 12. The question before us is whether a civil court has jurisdiction even assuming the contention of respondent No.1 to be true particularly ground of fraud etc. on given facts. 13. Section 34 of Securitisation Act is reproduced as under:- “34. Civil court not to have jurisdiction.—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). 14. In cases of Jagdish Singh Vs. Heeralal (supra) and State Bank of Patiala Vs. Mukesh Jain and Ors. (supra), Hon’ble Supreme Court has categorically held that no civil court has jurisdiction to entertain any suit or proceeding in respect of any [2025:RJ-JP:10605] (7 of 12) [CR-93/2019] matter which a Debt Recovery Tribunal or Appellate Tribunal is empowered by or under this Act to determine. 15. Learned counsel for the respondent No.1 has heavily placed reliance upon a three judges bench judgment in case of Mardia Chemicals Ltd. Vs. Union of India and Ors. (supra) wherein Hon’ble Supreme Court after considering the provision of Securitisation Act has observed that a borrower can also approach civil court in case of fraud and absurdity. The case of Mardia Chemicals Ltd. Vs. Union of India and Ors. (supra) was considered by Hon’ble Supreme Court in case of Jagdish Singh Vs. Heeralal (supra) and State Bank of Patiala Vs. Mukesh Jain and Ors. (supra) and held that a civil court has no jurisdiction to entertain any suit or proceeding in respect of any matter which has Debt Recovery Tribunal or Debt Recovery Appellate Tribunal is empowered to determine the dispute. 16. Section 17 of Securitisation Act provides that any person not necessarily a borrower or a guarantor, aggrieved by any of measures taken by secured creditor in exercise of powers conferred by Securitisation Act may approach Debt Recovery Tribunal. Section 17 of Securitisation Act is reproduced as under:- “17. [Application against measures to recover secured debts].—(1) Any person (including borrower), aggrieved by any of the measures referred to in sub- section(4) of Section 13 by the secured creditor or his authorised officer under this Chapter, [may make an application along with such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken: [Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.] [2025:RJ-JP:10605] (8 of 12) [CR-93/2019] [Explanation.—For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub-section.] [(1A) An application under sub-section (1) shall be filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction— (a) the cause of action, wholly or in part, arises; (b) where the secured asset is located; or (c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being.] [(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. [(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,— (a) declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditor as invalid; and (b) restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13.] (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding [2025:RJ-JP:10605] (9 of 12) [CR-93/2019] anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section 13 to recover his secured debt. (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,— (a) has expired or stood determined; or (b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.] (5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application: Provided that the Debts Recovery Tribunal may, from time to time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under sub-section (1). (6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any part to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal. [2025:RJ-JP:10605] (10 of 12) [CR-93/2019] (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder.] 17A. [Making of application to Court of District Judge in certain cases.] Omitted by the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, vide notification No. S.O. 1123(E) dated (18-3-2020) and Vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O. 3774(E), dated (23-10-2020).” 17. Here in this case, learned counsel for the respondent has further relief upon judgment of Punjab and Sind Bank Vs. Frontline Corporation Ltd. (supra) wherein Hon’ble Supreme Court has observed that the scope in which civil suit is maintainable as determined in the case of Mardia Chemicals Ltd. Vs. Union of India and Ors. (supra) is very limited. After considering all aspects, an appeal preferred by financial institution was allowed by Hon’ble Supreme Court. 18. In cases of Indian Overseas Bank Vs. M/s. Crescent Engineering Corporation and Ors. (supra), Prabha Jain Vs. Central Bank of India and Ors. (supra), Sagar Singh Damor Vs. Deepak Sharma (supra), ICICI Bank Ltd. Vs. Pramod Kumar Garg (supra) and Smt. Nanjamma Vs. Sri N. Narasimhamurthy (supra) different High Courts have considered the provisions of Securitisation Act and in facts and circumstances of the case has passed an order but herein we are having judgment of Hon’ble Supreme Court which clearly laid down that a civil suit is maintainable only on very limited ground and not otherwise. The documents on record indicate that the [2025:RJ-JP:10605] (11 of 12) [CR-93/2019] property belongs to Umesh Mittal and without making a disclosure to the Bank he registered a gift deed in favour of his son Vikas Mittal and now Vikas Mittal has turned up against the Bank. 19. A perusal of plaint at the stage of Order VII Rule 11 CPC clearly indicate that the financial institution has initiated proceedings under the Securitisation Act, therefore, the remedy lies only under the Act. The documents submitted by respondent No.1 (plaintiff) indicate that the respondent No.1-plaintiff has participated before the Debt Recovery Tribunal and when the respondent No.1-plaintiff has participated before the Debt Recovery Tribunal, then he has option to file an appeal before the Debt Recovery Appellate Tribunal (DRAT), a further proceeding as provided under the law but herein he opted to file a civil suit. 20. The facts narrated by plaintiff clearly indicate that only on basis of registered gift deed executed on 31.05.2016, the plaintiff is making a claim over the first floor of the house which was mortgaged to the Bank by his predecessor-in-title and father of plaintiff. The documents indicate that the guarantor deed was signed on 30.05.2016. Therefore, the right of plaintiff is still not a perfect right which requires adjudication. Herein, it may be possible that on 16.06.2016 when a search report was prepared by Mr. Kamal Nain Saxena then same may be with connivance of other defendants but connivance of financial institution is not apparent on record rather the execution of loan application and guarantee deed on 30.05.2016 made it clear that subsequent gift of the property already mentioned in the document is itself [2025:RJ-JP:10605] (12 of 12) [CR-93/2019] sufficient to disbelieve and discard the case of the plaintiff based on fraud. 21. In view of aforesaid, when the plaintiff has already availed forum of the Debt Recovery Tribunal under Section 17 of Securitisation Act and after being unsuccessful before the Debt Recovery Tribunal, the plaintiff cannot approach civil court on similar grounds. 22. Herein looking to provision of Sections 34 and 35 of Securitisation Act, a suit for declaration and injunction is not maintainable before the civil suit. Thus, the trial court has committed serious error while dismissing the application under Order VII Rule 11 CPC. 23. In view of discussion made hereinabove, the revision petition is hereby allowed and impugned order dated 08.02.2019 is set aside and an application under Order VII Rule 11 of CPC is also allowed and the suit preferred by respondent No.1-plaintiff is hereby rejected under Order VII Rule 11 CPC, as barred by law. 24. Misc application(s), if any, also stand disposed of. (ASHOK KUMAR JAIN),J MR/211