ORDER
K. Gnanaprakasam, J.
1. The revision petitioners are the plaintiffs.
2. The plaintiffs filed the suit for partition of the suit properties and allotment of 6/12 shares to the plaintiffs.
3. The plaintiffs' case is that they are brother and sister, and the 2nd defendant is the another brother of the plaintiffs and they are all sons and daughter of Siddhaiyan and Nallammal, the first defendant. Though the suit properties stand in the name of the first defendant, the same had been impressed with and treated as the joint family properties of the first plaintiff, the 2nd defendant and their father, Siddhaiyan, the plaintiffs and the defendants 1 and 2 and the father of the plaintiffs have been treating the suit properties as the joint family properties and in fact, they have also executed a registered mortgage in favour of Salem Fairlands House Building Society for availing house building loan. Siddhaiyan died intestate and therefore, the first plaintiff and the 2nd defendant are the surviving coparceners of the suit properties. The 2nd plaintiff and the first defendant, who are daughter and wife of the deceased, Siddhaiyan are also entitled to their respective shares in the suit properties. While so, the 3rd defendant, viz., M/s. Lakshmi Vilas Bank Limited claimed that they are the creditors of the defendants 1 and 2 and they have mortgaged the item (1) of the suit properties and compelled the plaintiffs to vacate from the said item, but, they have not succeeded. In the said circumstances, the plaintiffs have also prayed for permanent injunction against them.
4. The plaintiffs have also moved an application for grant of injunction against the 3rd defendant in I.A.No. 769 of 2002.
5. The 2nd respondent/defendant filed a counter denying the various allegations made by the plaintiffs in their affidavit and stated that he is always prepared to partition the joint family properties and also to settle the real dues to the 3rd defendant.
6. The 3rd respondent/defendant, M/s. Lakshmi Vilas Bank Limited filed counter, contending that the first respondent was running a business, under the name and style of M/s. Salem Metals and she is the proprietrix of the said concern and she is the owner of the item (1) of the suit properties. The first respondent obtained a loan of Rs. 8 lakhs by way of secured overdraw and he has also created a equitable mortgage in favour of the bank in respect of item (1) of the suit properties and the first respondent and her wife have executed a deed of guarantee and they have not paid the mortgage amount and the amounts are outstanding and they have issued a notice to the first respondent and thereafter, with a mala fide intention to defeat the claim of the 3rd respondent and also to prevent the sale of item (1) of the suit properties under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 (hereinafter referred to 'the Act'), collusively filed the suit. It is contended that as per the provisions of Section 34 of the Act, the Civil Court has no jurisdiction to pass any order of injunction in respect of any action taken in respect of the mortgage to the Bank and prayed for dismissal for the petition.
7. The trial Court is of the view that Section 25 of the Act is a bar to grant an order of injunction against the bank, and dismissed the petition Aggrieved by the same, the plaintiffs have preferred this civil revision petition. Heard the learned Advocate for the revision petitioners and the 3rd respondent.
8. Mrs. P. Bagyalakshmi, the learned Advocate for the revision petitioners would contend that the suit filed by the plaintiffs is one for partition and separate possession of their shares, in which they have filed an application for grant of in junction, not to sell their shares in the suit properties and in respect of the nature of reliefs claimed by the plaintiffs, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (Ordinance has been replaced and Act has been passed) has no application and the trial Court had erroneously interpreted Section 34 of the said Act and dismissed the application and the same is improper.
9. It is further submitted that in respect of the money due to a bank or a financial institution, they have to file an application before the Debt Recovery Tribunal as set forth under Section 19 of the Act and the action commenced by the 3rd defendant to bring the properly for sale without the intervention of the Court is not proper.
10. The learned Advocate for the revision petitioners would further contend that the bar under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Act') is not a total prohibition of the Civil Court's jurisdiction and the provisions of Section 34 has got to be read with Section 9 of C.P.C. and if it is done so, it cannot be held that there is a total bar to entertain a suit by the Civil Court.
11. Now, the question arises for consideration of this Court is, whether the suit filed by the plaintiffs/revision petitioners is barred under Section 34 of the Act, as contended by the 3rd respondent ?
12. The suit filed by the plaintiffs is one for partition and separate possession and allotment of their shares in the suit properties. The defendants 1 and 2 admit the share of the plaintiffs in the suit properties. As such, the defendants 1 and 2 do not have any independent right in the suit properties and their right is a joint right along with the plaintiffs and the rights of the parties have not yet been determined and it could be determined only by the Civil Court and Civil Court alone and not by any other Court. When the rights of the parties in respect of the suit properties is pending adjudication and only on the determination of the rights of the parties, it is contended on behalf of the revision petitioners, that the 3rd defendant could take action against the 2nd defendant in respect of his share and the 3rd defendant cannot take action in respect of the entire suit properties, which would sub serve the interest of the plaintiffs.
13. Mrs. P. Bagyalakshmi, the learned advocate for the revision petitioners further submitted that Section 9 of C.P.C. is not specifically barred under Section 34 of the Act and as long as no such bar, the Civil Court's jurisdiction neither can be abridged nor taken away and hence, the suit brought out by the plaintiffs is well in its order.
14. On the contrary, the learned advocate for the respondent would contend that by passing of this Act, viz., the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Act'), the Civil Court's jurisdiction has been specifically barred under Section 34 of this Act. It is further argued that only after the issue of the notice to the respondents 1 and 2, they and the plaintiffs have colluded and the suit was filed.
15. Admittedly, the plaintiffs are not the parties to the liabilities, said to have been created by the defendants 1 and 2 in favour of the 3rd defendant. It may be true that the 3rd defendant is the creditor of the defendants 1 and 2, but that does not mean, it is a creditor of the plaintiffs also. As long as the plaintiffs are not the debtors to the 3rd defendant, it is not open to the 3rd defendant to take action in respect of the entire joint family properties. In the instant case, the plaintiffs have filed the suit for partition and allotment of their due shares and as a matter of fact, the 2nd defendant admits the plaintiffs' shares. But, the shares of the parties have not yet been determined and except the Civil Court, no other Court can determine the claim of the shares of the parties. As such, the suit brought out by the plaintiffs cannot be opposed.
16. Now, coming to the bar of Civil Court's jurisdiction as stated in Section 34 of the Act, which states, '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).'
17. The words 'No Civil Court' used in Section 34 of the Act is wider in its meaning and likewise any suit or proceedings also has got wider meaning, thereby, this Section creates a taboo or embargo on filing any suit or proceeding before any Civil Court in respect of any matter which the Debts Recovery Tribunal or Appellate Tribunal is empowered by or under this Act. This Section also clearly prohibits that 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, including the action under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). It is the contention of the 3rd respondent that the plaintiffs' prayer for injunction cannot be granted in view of the said provision. As a matter of fact, the 3rd respondent has also submitted that this Section is applicable not only in respect of any action taken and also in respect of any action to be taken in pursuance of any power conferred under this Act.
18. Incidentally, the 3rd respondent also relies upon Section 35 of the Act, which states,
'The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.'
As it is a provision under the special enactment, it will have a overriding effect over Section 9 of C.P.C. and Section 9 is only a procedure in general and the same is subject to the Sections 34 and 35 of this Act.
19. The learned Advocate for the 3rd respondent would further contend that the secured creditors derive power under Section 13 of this Act, which deals with enforcement of security interest. Section 3(1) states,
Notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or tribunal, by such creditor in accordance with the provisions of this Act.
In this Section also, there is a overriding effect in respect of Section 69 or 69-A of the Transfer of Property Act (4 of 1882), which empowers the secured creditors to enforce its right without the intervention of the Court or Tribunal, in accordance with the provisions of this Act. Sub-section (2) to Section 9 prescribes the procedures that have got to be followed in enforcing the secured credit.
20. By taking through these provisions, the learned advocate for the respondents is trying to impress upon the Court that the power conferred under the Act is wide and as a matter of fact, it is an unlimited power given to the secured creditor, like the 3rd respondent and this power has been granted with an intention for speedy recovery of the amount without the intervention of the Court and to avoid the long drawn process of the litigation and the said power cannot be abridged or mitigated.
21. Reverting back to the submissions made by the learned advocate for the revision petitioners, they say that the powers conferred to the secured creditors under Section 34 of the Act and also under Section 13, are not imposing a total bar, event though the said enactment is a special enactment.
22. The learned advocate for the revision petitioners has relied upon the following judgments.
23. A case arose between Somasundaram v. Liyakat Ali and Anr., : 1997(1)CTC4 , in respect of inter se seniority of employees under the Tamil Nadu Co-operative Societies Act, 1983 and in the said Act also, there is a bar under Section 156 to bring out a civil suit. It was argued in the said case that the civil suit was not maintainable, by pointing out Section 156 of the Tamil Nadu Co-operative Societies Act, 1983; which states,
'Bar of jurisdiction of Civil Courts: Notwithstanding anything contained in any other law for the time being in force nor order or award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any Court and no injunction shall be granted by any Court in respect of anything which is done or intended to be done by or under this Act.'
In the said case, S.S. Subramani, J. had observed,
'A reading of the above Section makes it clear that to get protection under that Act, the authorities under that Act must pass order or award for which they are empowered under the Act. It is only those powers which they are asked to do under that Act and impounded from civil action, cannot be called in question in a civil suit. I asked learned counsel for the appellant whether the Registrar has got jurisdiction to decide the inter se seniority between the two employees. He was not in a position to show me the provision of law regarding the same. He brought to my notice various Rules framed under the Co-operative Societies Act. But they are not concerned with dispute as regards inter se seniority between two employees. The powers given to the Registrar are only of disciplinary character, where he can withhold promotion, etc, Admittedly, this is not a case of disciplinary proceedings. Once it is found that the registrar was not acting under any provision of the Act, he has to decide the inter se seniority only in accordance with law. It is a common law right. Hence, the bar under Section 156 of the Cooperative Societies Act has no application to the facts of this case.'
24. Reliance also placed upon the case of V.S. Lakshminarayanan Iyengar and eight Ors. v. M.C. Arunachala Pillai and eight Ors., : 1999(2)CTC635 , in which a case arose under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. In that case, the suit was filed for declaration that the plaintiffs are hereditary Archahas or Stanigars in the suit temple and that they are entitled to receive 'Padi Arisi' which is being given by the devotees and collected by the plaintiffs and for consequential mandatory injunction, directing to remove Hundi for collection of Padi Arisi and for consequential permanent injunction. There is a bar under Section 55 of the said Act for the plaintiffs to seek the relief of declaration of status as hereditary Archahas. In dealing with the said matter, this Court (E. Padmanabhan, J.) relied upon the earlier judgment in the case of Mooka Velar v. Baluchami, 1977 (90) L.W. 615, wherein (Sethuraman, J.) has held,
'The provisions of Section 63 of the Act will not bar the suit claim there to restrain the defendants from interfering with the right of the plaintiffs to be in management of the suit trust as joint hereditary trustees of the temple, which hereditary trusteeship has already been declared'
and the learned judge also relied upon the case of Sri Thulukka Choodamani Mariamman Temple, etc. v. Subramanian Pandaram, 1986 (99) L. W. 606, wherein (Venkataswamy, J., as he then was) has held
'The claim of the plaintiffs will not fall under Section 63 and the offerings being in the nature of appeasing the God through the medium of Poojari and that too originally on special occasions, which in course of time came to be a regular event, but, not on daily basis, this Court has to uphold the claim of the poojaries that they are entitled to the offering of padi arisi which will not come within the purview of Section 63 of the Act',
After following several other judgments, this Court came to the conclusion that the suit for declaration that the plaintiffs are entitled to receive padi arisi and for consequential relief of mandatory injunction and permanent injunction is maintainable.
25. Easwaramoorthy Velar v. Parvathammal, : 2000(1)CTC412 deals with a case under the Tamil Nadu Debts Reliefs Act (Act 40 of 1979, 13 of 1980 and 50 of 1982), wherein, the learned Judge (S.S. Subramani, J.) has observed,
'14. The Tamil Nadu Debt Relief Act, 1982, was passed by the Legislature to give benefit to the indebted agriculturists. Merely because a summary remedy is provided before the tribunal, the law does not say that the debtor cannot invoke the jurisdiction of Civil Court. Right of redemption is a common law remedy. The Tamil Nadu Debt Relief Act, 1982 has not excluded the common law remedy'.
Reliance was placed on the decision in Dhulabhai v. State of M.P., : [1968]3SCR662 , wherein the Apex Court enunciated various principles regarding exclusion of jurisdiction of Civil Court, which reads thus:
(1) Where the statute give a finality to the orders of the Special Tribunals, the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act of find the adequacy of the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said rights and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply; Case law discussed.'
After considering several decisions, the Court ultimately came to the conclusion that the Civil Court's jurisdiction is not barred and the right of redemption through Court is not taken away under the Act.
26. A case arose under Delhi Co-operative Societies Act, 1972, in Prakash Narain Sharma v. Burmah Shell Co-operative Housing Society Limited, 2002 (3) C.T.C. 795, wherein the jurisdiction of the Civil Court under Section 9 of C.P.C., came up for consideration. The question arose in that case, was whether the Civil Court has got right to pass a restraint order and the society obtained an interim order from the Civil Court restraining the arbitrator from proceeding ahead with arbitration proceedings and in view of the same, the arbitrator stated that his hands are tied and he shall not proceed ahead. It was observed,
'7. It would have been better if the society, through its representative or counsel, would have made appearance before the arbitrator either for apprise the arbitrator with order passed by the Civil Court or at least to ascertain whether the order was communicated or brought to the knowledge of the arbitrator. In spite of such lapse on the part of the society, it is not so much a question of legality or availability of jurisdiction with the Civil Court in passing the restraint order as it is the question of finding out the availability of sufficient cause for non appearance of the society before the arbitrator on the appointed date of hearing. We do not agree with the reasoning of the Division Bench of the High Court that a Civil Court cannot under any circumstances entertain a civil suit in respect of proceedings pending before the Registrar, Co-operative Society. Even where exclusion of jurisdiction of the Civil Court is statutorily provided still on availability of requisite grounds the Civil Court can entertain a civil suit on well defined parameters settled by constitution Bench of this Court in Dhulabhai v. State of M.P., : [1968]3SCR662 .' Ultimately, the Apex Court held,
'The appropriate course in such case is for the person aggrieved first to approach the Civil Court inviting its attention to the relevant provisions of law and call it upon to adjudicate upon the question of its own jurisdiction and to vacate or recall its order if it be one which it did not have jurisdiction in law to make. So long as this is not done, the order of competent Court must be obeyed and respect by all concerned.'
But, in our case, in the suit filed by the petitioners for partition, in a Civil Court, the 3rd respondent, filed a counter and on consideration of the matter, the trial Court came to the conclusion that in view of Section 34 of the Act, the Civil Court has no jurisdiction and the same is challenged before this Court.
27. A case arose under the Arbitration and Conciliation Act, 1996 for consideration of the Apex Court in Sukanya Holdings Private Limited v. Jayesh H. Pandya and Anr., : [2003]3SCR558 . In that case, Section 8 of the Arbitration and Conciliation Act, 1996 was considered, which says,
'(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement, shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in Sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof and
(3) Notwithstanding that an application has been made under Sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.'
It was stated that there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the arbitral tribunal, if:
(1) the parties to the arbitration agreement have not filed any such application for referring the dispute to the arbitrator;
(2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof.
This would, therefore, mean that Arbitration Act does not oust the jurisdiction of the Civil Court to decide the dispute in a case where parties to the Arbitration Agreement do not take appropriate steps as contemplated under Sub-sections (1) and (2) of Section 8 of the Act. In fact in this case, Section 89 of C.P.C. was also referred and the Apex Court had observed,
'In our view Section 89 of C.P.C. cannot be resorted to for interpreting Section 8 of the Act as it stands on a different fooling and it would be applicable even in cases where there is no arbitration agreement for referring the dispute for arbitration. Further, for that purpose, the Court has to apply its mind to the condition contemplated under Section 89, C.P.C. and even if application under Section 8 of the Act is rejected, the Court is required to follow the procedure prescribed under the said Section.'
28. In A.R. Ponnusamy v. Thoppalan, : AIR2004Mad147 Section 46 of the Air (Prevention and Control of Pollution) Act, 1981 came up for consideration and Section 46 bars the jurisdiction of the Civil Court in respect of the matters covered by the said section. Section 46 of the said Act deals, 'Bar of jurisdiction', which states,
'No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an appellate authority constituted under this Act 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'.
The learned judge, of this Court P. Sathasivam, J. had observed,
'It is clear from the above position that in respect of any matter which an appellate authority in this Act is empowered, Civil Court has no jurisdiction to entertain any suit and no injunction shall be granted in respect of any action taken or to be taken by the authority concerned. Though prior to the filing of the suit, the plaintiff was having permission from the Pollution Control Board to use Crusher, admittedly, on the date of the suit, he was not having any order from the Board. In such a circumstances, as rightly contended by the learned counsel for the respondent, the plaintiff has to approach the Civil Court to vindicate his grievance, if any, relating to air pollution. Ultimately, this Court held that though there is a bar under Section 46 of the Air (Prevention and Control of Pollution) Act, 1981, in the light of the language used in the said section, and that the plaintiff has not challenged any order or proceedings of the Pollution Control Board or authority constituted under the Act, the suit as instituted by the plaintiff is maintainable.
29. A case also arose under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and Section 29 of the Income Tax (Certificate Proceedings) Rules, 1962 in A. Stephen Samule, Proprietor, Industrial Security Agency, Coimbatore and Anr. v. Union of India, New Delhi, : (2003)2MLJ220 , wherein, power of Recovery Officer to direct eviction of tenant of building sold in auction for recovery of debt came up for consideration before a Division Bench of this Court. It was held,
'Rule 40 of the Income Tax (Certificate Proceedings) Rules, 1962 contemplates only symbolical delivery and not actual delivery and the tenants are not defaulters to Bank and the defaulters are lawful tenants and the auction purchaser is entitled to symbolical delivery only and not actual possession'.
In the said case, the persons borrowed the amount from the financial institutions did not pay the loan amount and the creditor filed the suit for recovery of the outstanding amount and on the formation of the Debt Recovery Tribunal, the said suit was transferred to the file of Debt Recovery Tribunal, Chennai and an order was passed by the DRT, directing the borrowers to repay the same and since they failed to repay the same as ordered, the DRT has directed the issuance of recovery certificate. In the execution of the recovery certificate the properties which are under occupation of the appellants/tenants were sold in public auction and the purchaser in the auction, requested the Recovery Officer to deliver vacant possession of the properties and the Recovery Officer passed an order, directing the tenants, who are in occupation of the properties to hand over vacant possession of the properties and in the order, it is stated that if they fail to hand over the vacant possession of the properties, suitable action will be taken for their eviction and the said order was challenged by the tenants in writ petitions and the learned single judge dismissed the said petitions, giving liberty to the tenants to move the appellate authority under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and the learned single Judge further held that the Recovery Officer is authorised under the Recovery of Debts Act to evict any person from any property sold in public auction and the said order of the learned single Judge was challenged by the tenants in A. Stephen Samule, Proprietor, Industrial Security Agency, Coimbatore and Anr. v. Union of India, New Delhi, : (2003)2MLJ220 , the Division Bench of this Court after considering relevant Rules 39 and 40 of the Income Tax (Certification Proceedings) Rules and Section 29 of the Recovery of Debts Act and also Rules 42 and 43 of the said rules and also Order 21, Rule 95, C.P.C., which deals with the delivery of possession in occupancy of judgment debtor and also taking into consideration the judgment of Apex Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, : [1997]1SCR463 and Tanzeem-E-Sufia v. Bibi Haliman and Ors., 2002 (4) C.T.C. 179 : 2003 (2) L.W. 16, held
'9. The tenants are not defaulters to the Bank. They do not claim to be in possession of the properties under a title created by the judgment-debtor subsequent to the attachment of the properties by the Recovery Officer, nor do they claim that they entered into possession subsequent to the Recovery Certificate issued by the Recovery Officer. There is no doubt that the appellants/tenants are the lawful tenants of the defaulter to the bank even before the initiation of the proceedings by the Bank against the defaulter. Therefore, when the property was in the occupation of tenants at the time when it was sold, the auction purchaser would be entitled to symboligical possession of such property, but he would not be entitled to claim that the tenants should be directed to hand over actual possession of the respective portions of the property in their possession. In our view, it is impermissible for the auction purchaser to get actual possession of the property by throwing the tenants out of the property.'
30. Section 9, C.P.C. and bar of jurisdiction created under relevant Sections in respect of the Co-operative Societies Act, Arbitration and Conciliation Act, 1996 and also Section 29 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and under Rule 40 of the Income Tax (Certificate Proceedings) Rules, 1962 an also the bar under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 were all considered by this Court and the Apex Court as referred supra and now, it is manifestly clear that the power under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act is not absolute and the same is subject to certain restrictions, they are:
(1) that the parties, who filed the suit must be a party to the liabilities created in favour of the secured creditor,
(2) the disputes between the parties could be resolved under the provisions of the Act itself,
(3) that if the claim made by the parties is outside the jurisdiction of the Debts Recovery Tribunal or the appellate tribunal or any action taken or to be taken under this Act and also under the Recovery of Debt due to Banks and Financial Institutions Act, 1993 and the dispute raised by the parties can not be adjudicated by any of the tribunal or authority, created under the act or under any other Act, the right of the parties to approach the Civil Court for appropriate relief cannot be deprived and taken away.
31. Admittedly, in our case, the petitioners have filed the suit for partition including the item, in respect of which, the 3rd respondent taken out proceedings to bring the same for sale without the intervention of the Court and till the rights of the parties are determined by the Civil Court, and the Civil Court alone could decide and determine the rights of the parties in respect of their respective claims in the suit for partition, the 3rd defendant, though a secured creditor, cannot bring the property for sale by invoking the bar under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act or the bar under Section 13 of the Act. The Court below has not taken into consideration of these aspects and as a matter of fact, these salient features were not brought to the notice of the Court below, which resulted in passing of an erroneous order, which is liable to be set aside.
32. In the result, the civil revision petition is allowed. No costs. Consequently, connected C.M.P. is closed.