Page No.# 1/8 GAHC010146232025 2025:GAU-AS:9250 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RFA/36/2025 SMTI MANJU SAIKIA @ MONJU SAIKIA AND ANR W/O LATE SUREN SAIKIA 2: SMTI PINKI SAIKIA D/O LATE SUREN SAIKIA BOTH ARE R/O VILL. BORAGADHOI 16 NO. TIN ALI BISHNU NAGAR P.O. AND P.S. DULIAJAN DIST. DIBRUGARH ASSAM PIN 78660 VERSUS SRI BULBUL SAIKIA AND 3 ORS S/O LATE SUREN SAIKIA, R/O GANDHI NAGAR, P.O. AND P.S. DIBRUGARH, DIST. DIBRUGARH, ASSAM, PIN 786001 2:STATE BANK OF INDIA THANA CHARIALI BRANCH P.O. DIBRUGARH ASSAM PIN 786001 3:STATE BANK OF INDIA STRESSED ASSETS RECOVERY BRANCH NA-ALI M.G. ROAD OPPOSITE ASEB BUILDING JORHAT ASSAM Page No.# 2/8 PIN 785001 4:STATE BANK OF INDIA LOCAL HEAD OFFICE BHANGAGARH GUWAHATI ASSAM PIN 78100 Advocate for the Petitioner : MR. N N UPADHAYA, MR. B B KAKATI,MR. D K BAGCHI Advocate for the Respondent : MR. K K NANDI, FOR CAVEATOR,MS A SAHA,MS S DEY BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 18.07.2025 Heard Mr. D.K. Bagchi, learned counsel for the appellants. Also heard Ms. S. Dey, learned counsel for the respondent nos.2 to 4. 2. By filing this regular first appeal, the appellants have laid challenge to the order dated 03.06.2025, passed by the learned Civil Judge (Sr. Div.), Dibrugarh in Misc.(J) Case No. 227/2023 (in T.S. No. 65/2023). By the said order, the learned Trial Court had allowed an interlocutory application filed by the respondent nos. 2 to 4 under Order VII, Rule 11, read with section 151 of the CPC, for rejection of plaint, amongst others, on the grounds that the suit is barred by section 9 of the CPC and section 34 of the SARFAESI Act, 2002. 3. From the submissions made by the learned counsel for the appellants, it appears that the projected case of the appellants is that they are the legal heirs of late Suren Saikia and they claim to be entitled to one-third share of the residential building described in Schedule-B of the plaint. It is the further case of Page No.# 3/8 the appellants that though the land in question belonged to late Suren Saikia, the respondent no. 1, who is the son of late Suren Saikia, had surreptitiously and illegally got a sale deed of the said land registered in his favour and then he had mortgaged the land against loan availed from the respondent no. 2, i.e. the State Bank of India, Thana Chariali Branch, Dibrugarh. 4. The learned counsel for the appellants project that though the land was purportedly mortgaged to the State Bank of India, but not the residential building and therefore, the State Bank of India had no right to take over the residential building of the appellants, who have one-third share each over the said residential building. It is further projected case of the appellants that after the bank officials started coming to their house, only then they came to learn that late Suren Saikia had sold the land to the respondent no.1 vide sale deed bearing deed no. 122 dated 21.01.2014, registered with the Sub-Registry at Dibrugarh. It is claimed that the appellants were never informed about the transfer of ownership of land and thus it is projected that as only the land was sold and not the residential building. In other words, it is submitted that the said residential building, described in Schedule-B of the plaint was not the subject matter of any mortgage. 5. Accordingly, claiming that the appellants have a right to retain the residential building to the extent of their respective shares, and by projecting that the cause of action arose on 26.10.2020, after creation of the mortgage over Schedule-A land and on 27.03.2023, the date of confirmation of loan, the appellants have filed a suit valued at Rs.1,18,12,070/- (Rupees one crore eighteen lakh twelve thousand seventy only), thereby claiming the following reliefs: Page No.# 4/8 “a. for Declaration that the Plaintiffs and the Defendant No.1, being the legal heirs of the said deceased Suren Saikia, are entitled to get 1/3td share each from the "Residential Building" as given in the Schedule-B below by right of inheritance. b. For a declaration that the "Residential Building" as given in the Schedule -B below is not the subject-matter of any mortgage against any loan outstanding or debt of the Defendant no.2 to 4 or State Bank of India as such, they have no right to take over the possession of the said residential building for any purpose till determination of their rights over the same. c. For an injunction restraining the Defendant No.2, 3 & 4 i.e., SBI from disturbing the peaceful possession and enjoyment of the said residential building or to do any act prejudicial to the interest of the Plaintiffs till determination of their rights over the same. d. For cost of the suit; e. For any other relief or reliefs to which the plaintiffs are entitled to under the law and equity.” 6. The respondent nos.2 to 4 have contested the suit by filing written statement. They also filed an application for rejection of plaint. The learned counsel for the said respondents has further submitted that initially a recovery application was filed before the Debts Recovery Tribunal, Guwahati against the respondent no.1, which was registered and numbered as OA 262/2018, in which Recovery Certificate was issued in favour of the State Bank of India on 14.11.2018. In the meanwhile, notice dated 03.04.2018 under section 13(2) of the SARFAESI Act, 2002, was issued against the respondent no.1, intimating that the total outstanding dues is to the extent of Rs.1,25,22,604.62 (Rupees one crore twenty five lakh twenty two thousand six hundred four and paise six Page No.# 5/8 two only). In the said notice, the security documents had been described in Schedule-B thereto, and the list of hypothecated properties had been described in Schedule-C (Part-I) thereto along with creation of equitable mortgage on the immovable properties being described in Part-II to the Schedule-C thereto. 7. It is further submitted that against the SARFAESI notice issued to the respondent no.1, the said respondent filed a SARFAESI Application before the learned Debts Recovery Tribunal, Guwahati, which was registered as SA No. 81/2019, which was dismissed by order dated 30.08.2019. It is submitted that no appeal was preferred against the order dated 30.08.2019. However, the respondent no.1, thereafter, filed a writ petition, which was registered as WP(C) No. 7790/2022 to assail the order dated 21.10.2022, passed by the District Magistrate, Dibrugarh as well as to assail the vacation notice dated 29.10.2022, passed by the Authorized Officer, SARB, SBI, Jorhat Branch and further seeking time till March, 2023 to make payment of the dues under One Time Settlement dated 31.01.2022. The said writ petition was closed by allowing the respondent no.1 to file a fresh OTS to the bank within 10 (ten) days in respect of his 3 (three) accounts and thereafter, the bank would intimate to the respondent no.1 as to whether they are agreeable to such proposal of One Time Settlement and it was provided that if the bank accepts the OTS proposal, the respondent no.1 would do the needful according to the OTS. However, till such communication by the bank, it was directed that no coercive action shall be taken against the respondent no.1. There is no material in this memo of appeal regarding OTS proposal. Thereafter, the appellants herein have filed the suit, being TS No. 65/2023. 8. The learned counsel for the appellants has submitted that the Page No.# 6/8 respondent no.1, who is the son of appellant no.1, has left the household. 9. The issues raised by the learned counsel for the appellants that whether the residential building would be covered by the definition of land is an issue which is required to be adjudicated and decided by the learned Civil Court as to whether the issues relating to absence of mortgage of the residential building are best left to be decided by the competent Court/forum having jurisdiction as any comment by this Court may have a tendency to prejudice either of the parties. The documents available on record reveal that the owner of the land, who is the husband of the appellant no.1 and the father of appellant no.2, had sold the land vide sale deed dated 21.01.2014, which is not under challenge when the State Bank of India had accepted the mortgage of the said land as its security asset against grant loan to the respondent no.1. Therefore, the Court is of the considered opinion that whatsoever action is proposed to be taken by the State Bank of India i.e. respondent nos. 2 to 4 are squarely covered within the scope of section 13 the SARFAESI Act, 2002. Therefore, the Court is of the considered opinion that the learned Trial Court has correctly taken note of the provisions of section 34 of the SARFAESI Act, 2002 which bars Civil Court of any jurisdiction to entertain a suit where the subject matter relates to the SARFAESI Act or actions taken thereunder. The impugned order is affirmed. 10. In the case of United Bank of India v. Satyawati Tondon & others -III (2010) BC 495 (SC): (2010) 8 SCC 110 it has been held with reference to the provisions of Section 34 of the SARFAESI Act that the said provision lays down that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Tribunal or Appellate Authority is empowered to Page No.# 7/8 determine. 11. Similarly, in light of the provisions of Sections 34 and Section 13 of the SARFAESI Act, it has been reiterated by the Supreme Court of India in the case of SBI v. Allwyn Alloys Pvt. Ltd., (2018) 8 SCC 120 that mandate of Section 13 and in particular Section 34, bars filing of a civil suit and no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which DRT or DRAT is empowered by or under 2002 Act to determine. 12. In the case of Sree Anandhakumar Mills Ltd. v. Indian Overseas Bank, (2019) 14 SCC 788, following the case of Jagdish Singh v. Heeralal, (2014) 1 SCC 479, considering the provisions of Section 34, read with Sections 2(zf), 2(ze), 13(1), 13(4), 17, 18 and 35 of the SARFAESI Act, the Supreme Court of India had held that suit for partition was not maintainable when action under SARFAESI Act stands initiated. It was further held that remedy lies before Debts Recovery Tribunal by way of proceeding under Sections 17 and 18 of SARFAESI Act. 13. From the payers of the suit, extracted hereinbefore, there is no payer in the said plaint regarding fraud, if any, committed by respondent no.1 in mortgaging the secured assets or any fraud committed by the State Bank of India in accepting the mortgage. Thus, the issues raised in the plaint can effectively be adjudicated before the Debts Recovery Tribunal having jurisdiction or any action taken by the Bank under the SARFAESI Act. 14. Having arrived at the said conclusion, the Court does not find any merit in the challenge. 15. Accordingly, the impugned order dated 03.06.2025, passed by the Page No.# 8/8 learned Civil Judge (Sr. Div.), Dibrugarh in Misc.(J) Case No. 227/2023, stands affirmed and this appeal stands dismissed at the admission stage without issuance of notice on the respondents. 16. The Registry shall transmit a copy of this order to the Court of the learned Civil Judge (Sr. Div.), Dibrugarh to make it a part of the record in Misc. (J) Case No. 27/2023 and T.S. No. 65/2023. JUDGE Comparing Assistant