- 1 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.1521 OF 2025 (INJ) BETWEEN: MRS. HEMA H.M, AGED ABOUT 51 YEARS, D/O MARIYAPPA, PERMANENT RESIDENT OF HANAKERE VILLAGE, KASABA HOBLI, MANDYA TALUK AND DISTRICT NOW RESIDING AT NO.3, 1ST CROSS, OPP. TO PIPELINE ROAD PREMANAGARA, LAGGERE BANGALORE - 560 058. …APPELLANT (BY SRI. H.C. SHIVARAMU, ADVOCATE) AND: YASHASWINI MAHILA SOUHARDA CREDIT CO-OPERATIVE BANK LTD., HAVING ITS REGISTERED OFFICE AT NO.107, PIPELINE MAIN ROAD, OFFICERS COLONY, T. DASARAHALLI, BANGALORE - 560 054. REPRESENTED BY AUTHORISED SIGNATORY MR. KUMBHI NARASIMHAIAH. …RESPONDENT (RESPONDENT - SERVED AND UNREPRESENTED) Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE ORDER DATED 04.06.2025 PASSED ON I.A.NO.4 IN O.S.NO.137/2024 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE I.A.IV FILED UNDER ORDER VII RULE 11(a) AND (d) R/W SEC.151 OF CPC, FOR REJECTION OF PLAINT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT This appeal by the plaintiff in O.S.No.137/2024, is directed against the impugned order dated 04.06.2025 passed by the XIV Additional City Civil and Sessions Judge, Bengaluru (CCH-28), whereby the application-I.A.No.4 filed by the sole defendant under Order VII Rule 11(a) and (d) of the C.P.C., which rejected the plaint and dismissed the suit as not maintainable. Aggrieved by the impugned order and decree, the appellant-plaintiff is before this Court by way of the present appeal. 2. As stated supra, the sole respondent having been served with notice of the appeal, has chosen to remain unrepresented and has not contested the suit. - 3 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 3. A perusal of the material on record will indicate that the only point that arises for my consideration in the present appeal is, as to whether the Trial Court was justified in allowing I.A.No.4 and thereby rejecting the plaint and consequently, dismissing the suit filed by the appellant-plaintiff. 4. A perusal of the material on record will indicate that in the plaint, the plaintiff has specifically contended that she is neither borrower nor a guarantor and the appellant was only a tenant, who was in lawful possession and enjoyment of the suit schedule property. In this context, it is pertinent to extract the plaint averment, which reads as under: "2.1 The Plaintiff submit that the Plaintiff are the tenant under one Mr.Eshwar Rao Pawar.L S/o Late.Lakshman Rab Pawar who is the absolute owner of the immovable property bearing Site No.3 Assessment No.47, Khata No.388, situated at Laggere Village, Yeshwanthpur Hobli, Dasarahalli, CMC Ward No.31 now within the revenue administrative jurisdiction of Ward No.73, measuring East to West 43 Feet and North to South 15 Feet, which is morefully described in the schedule hereunder and schedule premises bearing Site No.3, First Floor, Northern portion, Assessment No.47. Khata No.388, situated at Laggere Village, Yeshwanthpur Hobli, Dasarahalli, CMC Ward No.31 now - 4 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 within the revenue administrative jurisdiction of Ward No.73, measuring East to West 43 Feet and North to South 15 Feet. 3. The Plaintiff submits that, the Plaintiff is an women and she was inducted by the landlord in the year 2013 by virtue of the lease agreement and under the said agreement, the Plaintiff has paid a sum of Rs.5,00,000/- as lease amount to the landlord by way of cash and the lease period was determined for a period of 10 years. The Plaintiff submits that after the lease period is completed, the landlord above named Mr.Eshwar Rao Pawar.L had requested the Plaintiff to renew the lease agreement and continue the lease for further period of two years and hence, after the negotiations, is completed, the landlord had executed lease Agreement dated 26.06.2023 in favor of the Plaintiff and had received a sum of Rs.7,00,000/- as a lease amount which was an interest free refundable deposit and not rent was payable in respect of the property mentioned in the schedule hereunder and which is more fully described in the schedule hereunder. The copy of the lease Agreement dated 26.06.2023 is produced herewith as ANNEXURE-A. The copy of the payment receipts of lease amount is produced as ANNEXURE-A1. 4. The Plaintiff submit that from the date of acquisition the Plaintiff are paying the electricity charges as well as water bill in respect of the respective portions and they are in actual possession and enjoyment of the schedule properties respectively. The copy of the electricity bill and water bill are herewith produced as ANNEXURE-B Series. - 5 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 5. The Plaintiff submit that the land lord of the Plaintiff had secured a loan from the Defendant financial institution, which fact is not known to the Plaintiff and the Defendant had initiated recovery proceedings and the Defendant had issued a notice under Section 13 (2) of SURFAESI Act 2002 and also issued possession notice dated 02.01.2024 under Section 13 (12) read with Rule No.3 of Security Interest (Enforcement) Act against the land lord for attachment of the schedule property belonging to the land lord of the Plaintiff and instructed the Plaintiff to vacate the premises on or before 10 days from the date of issuance of notice since the Defendant had taken the legal action to sell the schedule property in a public auction. The Plaintiff submit that the Plaintiff have been in possession of the schedule property since 2013, which is more than a decade and the public auction to be conducted by the Defendant under the supervision of the Defendant has no right to evict the Plaintiff, who is lessee and the alleged future successful bidder who may purchased the schedule property under an auction, automatically step into the shoes of the land lord under whom the lessee (Plaintiff) had obtained the possession in the year 2013 on payment of the lease amount and that the Plaintiff who have not acquired right or interest by way of induction in the schedule property on or after the issue of the possession notice and hence the Plaintiff, who are in lawful possession cannot be summarily evicted by the Defendant. The copy of the legal notice dated 20.10.2023 and possession notice 02.01.2024 are produced as ANNEXURE-C Series. The Plaintiff submits that though the - 6 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 land lord of the Plaintiff is in the receipt of the legal notice issued by the Defendant neither he filed his objections to the claims before the Defendant nor he had taken any further legal action for stay of sale proclamation issued by the Defendant and therefore the demand legal notice and possession notice are subject to the subsisting lawful claims of the plaintiffs. The Plaintiff submits that it is noticed under the preliminary notice dated 20.10.2023 that the Defendant Bank had stated that, the Bank had taken the symbolic possession of the property on 27.07.2022. Dispite of the p proper information given by the Bank to the landlord, he had suppressed the whole things and never complied the demand made by the Defendant nor informed to the occupants who are in possession of the property as a lessees. 6. The Plaintiff submits that the Defendant acting under extraneous considerations through the future bidders directing the Plaintiff to be evicted forcibly even though the Defendant is aware of the fact that the Plaintiff is in possession of the Schedule Property since 2013 and not on or after the issue of the Annexure-C. The Plaintiff submit that the law is very clear on the subject which is recorded in law in force which contemplates that any rights charge or encumbrances created after the issue of Possession notice or sale proclamation by the Defendant shall be null and void and that the Plaintiff is bonafide occupants of the Schedule Property from the year 2013 and that the proceedings initiated by the Defendant is during the year 2024 and therefore, the Defendant has no right to taken the - 7 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 possession of the schedule property by evicting the Plaintiff, directing the summery dispossession of the Plaintiff from the Schedule Property. The Plaintiff is in lawful possession and enjoyment as bonafide lessee under Annexure-A and the Defendant in order to circumvent the Civil Code. Procedure have devised the short cut method of misusing the powers of the SARFASEI Act and hence the Annexure-C.Series are inoperative and in-executable. 7. The Plaintiff submits that the Defendant has no authority or jurisdiction to evict the Plaintiff from the suit schedule property since the borrower and the co-borrower are still available for recovery of the loan amount and hence the Defendant can recover the loan amount in accordance with law and hence, the threat of dispossession in the hands of the Defendant is imminent and hence, the Plaintiff has sought for an order of permanent injunction restraining the Defendant from dispossessing the Plaintiff from the suit schedule property except through the due process of law and muchless, the provisions of SARFASEI Act will not be apply to the landlord since, she neither borrower nor the defaulter under the Defendant who are tho secured creditor 8. The Plaintiff have a prima facie case and are in lawful possession and enjoyment of the suit schedule property since 2013 as lawful lessees and have not acquired any right or interest in the schedule property on or after the issuance of the Annexure-C Series and the documents produced by the Plaintiff prima facie establishes the right of the Plaintiff to continue in possession until they are evicted in accordance with law and the balance of convenience is in favour of the - 8 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 Plaintiff who are lawful lessees and unless the determination of lease as per the provision of law in force, the Defendant cannot invoke the provisions of the SARFASEI Act against the lawful lessees and by granting an order as prayed for, no harm or injury will be caused to the Defendant and on the other hand if the relief sought for is not granted, the Defendant will be embolderied to misuse the process of law through illegally and unlawfully dispossess the Plaintiff from the suit schedule property and thereby it will lead to multiplicity of proceedings. Hence, the suit. 9. Hence, the suit. 9. The Plaintiff submit that she was not a party in the proceedings held before the Defendant as the Plaintiff is not borrower of the Defendant and therefore, SARFASEI Act is not applicable and since, the legal rights of the Plaintiff is being affected and jeopardize by the orders of the Defendant, the Plaintiff have sought a decree of permanent injunction against the Defendant. 10. The cause of action for the above suit arose on 02.01.2024 when the official of the Defendant have tried to dispossess the Plaintiff illegally from the schedule property and subsequently with every threat held out by the Defendant, is within the jurisdiction of this Hon'ble Court. The suit is in time." 5. A perusal of the plaint averment will indicate that it is specifically contended by the appellant-plaintiff that the loan having been taken by the borrower in 2018, the appellant- plaintiff - 9 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 has been a tenant under the borrower from 2013 onwards and the provisions of Section 34 of the SARFAESI Act, 2002 was not applicable to the facts of the instant case despite which the Trial Court has erroneously rejected the plaint on the ground that the same is barred under Section 34 of the SARFAESI Act, 2002, which is factually and legally incorrect and the same deserves to be set aside and the matter be remitted back to the Trial Court for reconsideration afresh after conducting a full fledged trial. 6. As rightly contended by the learned counsel for the appellant-plaintiff, a holistic reading of the plaint averment will indicate that the question as to the suit was barred by the provisions contained under Section 34 of the SARFAESI Act, 2002, would be mixed question of fact and law, warranting full fledged trial and the plaint could not have been rejected at the threshold by invoking Order VII Rule 11(a) and (d) of the C.P.C., the provisions of which, would not be applicable to the facts of the instant case. 7. 7. Under these circumstances, having regard to the fact that plaint averments and document produced along with the plaint, - 10 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 which are the only material available to the Trial Court for purpose of consideration of an application under Order VII Rule 11(a) and (d) of the C.P.C., and not any defense written statement, objections etc., put-forth by the respondent-defendant, I am of the considered opinion that the Trial Court misdirected itself in invoking Order VII Rule 11(a) and (d) of C.P.C., and consequently, the impugned order and decree deserves to be set aside and the matter is remitted back to the respondent for reconsideration afresh, in accordance with law by giving an additional opportunity in favour of the appellant and by leaving open all contentions. 8. In the result, I pass the following: ORDER [i] Regular First Appeal is allowed. [ii] The impugned order and decree dated 04.06.2025 passed in O.S.No.137/2024 passed by the XIV Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside. [iii] The matter is remitted back to the respondent for reconsideration afresh, in accordance with law. - 11 - HC-KAR NC: 2025:KHC:42475 RFA No. 1521 of 2025 [iv] All rival contentions between the parties on all aspects of the matter including the various contentions urged in the application - I.A.No.4 and all other contentions are kept open to be decided by the Trial Court after a full fledged trial and no opinion is expressed on the merits/demerits of the rival contentions. [vi] Liberty is reserved to the parties to adduce oral and documentary evidence in support of their respective claims. Sd/- (S.R.KRISHNA KUMAR) JUDGE SJK List No.: 1 Sl No.: 4 CT: BHK