ORDER
Sanjib Banerjee, J.
1. The reliefs claimed in the suit have been reproduced at paragraph 37 of the petition:
(a) The letter notice dated March 24, 2009 being Annexure 'I' hereof be adjudged null and void and be delivered up and cancelled;
(b) Perpetual injunction restraining the respondent from acting contrary to or in any manner inconsistent with terms of the agreement between the parties as recorded in paragraph 16 above and from effecting recoveries in a manner contrary thereto;
(c) Alternatively decree for determination of the amounts due and payable by the petitioner to the respondent and a decree be made for such sum as may be found upon enquiry, in favour of the respondent;
(d) Receiver;
(e) Injunction;
(f) Attachment;
(g) Costs;
(h) Such further and/or other relief or reliefs.
2. By a letter dated February 28, 2009 the defendant bank issued notice under Section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The bank put the plaintiff on notice in terms of Section 13(2) of the Act that the constituent was not to transfer by way of sale, lease or otherwise the secured assets detailed in schedule 'C' to the notice without obtaining the written consent of the bank. The bank's claim was in excess of Rs. 20 crore.
3. On March 6, 2009 the plaintiff submitted a letter to the bank in response to the notice under Section 13(2) of the Act. The plaintiff proposed restructuring of the debt. Following the receipt of such proposal the bank responded on March 24, 2009 dealing with the merits of the plaintiff's proposal and announcing that it was not viable. The bank duly discharged its obligation under Section 13(3A) in responding to the restructuring proposal.
4. The bank thereafter took steps under Section 13(4) of the Act.
5. The plaintiff instituted this suit with leave under Order 2 Rule 2 of the Code and sought reliefs as indicated hereinabove. The principal relief claimed is in respect of the letter dated March 24, 2009. The mischief that the plaintiff has set afoot is apparent on a reading of Section 13(3A) of the said Act of 2002.
6. Sub-section (3A) 'was introduced in November, 2004 following the observation of the Supreme Court in the Mardia Chemicals case : (2004) 4 SCC 311 : AIR 2004 SC 2371. Prior to the insertion of such sub-section, a secured creditor was not obliged to consider any representation made by a borrower following the receipt of a notice under Section 13(2) of the Act. Section 13(2) provides a 60 day time to the borrower to discharge his liabilities in full to the secured creditor. In the absence of Sub-section (3A), a secured creditor was only to wait for the payment demanded by its notice under Section 13(2) of the Act and if it was not made, on the 61st day after the notice under Section 13(2), such creditor could proceed to take recourse to one or more of the measures referred to in Section 13(4) of the Act to recover the secured debt.
7. With the introduction of Section 13(3A) the secured creditor has now to consider any representation or objection that is made by a borrower after the receipt by the borrower of the notice under Section 13(2) of the Act. Under the new sub-section, in the event a secured creditor finds a representation or objection unworthy, the secured creditor is obliged to communicate the reasons for non-acceptance of the representation or objection to the borrower. The proviso to Sub-section (3A) however precludes a borrower from immediately assailing the rejection by the secured creditor of the representation or objection. The wording of the proviso is such that the challenge to the rejection can be carried at a later stage but not to pre-empt any action that a secured creditor may take under the said Act consequent upon rejection of the representation or objection.
8. Section 17 of the Act of 2002, gives any person aggrieved by any of the measures referred to in Section 13(2) of the Act taken by a secured creditor a right to apply to the appropriate Debts Recovery Tribunal within 45 days from the date on which such measure had been taken. It is the conduct of the secured creditor that is called into question in proceedings under Section 17 of the Act. If a borrower feels that the representation or objection to the notice under Section 13(2) of the Act was adequate to stall the secured creditor's progress to the Section 13(4) stage, such contention can certainly be asserted by the borrower in the proceedings under Section 17 as it would be a ground to sail any measure taken by the secured creditor under Section 13(4) of the Act.
9. The said Act of 2002, in a sense, provides for harsher measure to be taken against borrowers within the meaning of the said Act than had been legally mandated before the introduction of the Act. The right under Section 17 to carry a grievance to the Debts Recovery Tribunal is only upon any measure under Section 13(4) having been adopted by the secured creditor. It is a statutory precondition for the exercise of the jurisdiction under Section 17 of the Act.
10. If a response that a secured creditor is obliged to issue under Section 13(3A) is permitted to be made the subject matter of a civil suit, and particularly before a High Court exercising original jurisdiction, it may cast a shadow both on the measures adopted by the secured creditor under Section 13(4) and on the adjudication of the propriety of the secured creditor's conduct in proceedings that may be brought by the borrower under Section 17 of the Act. If this Court in its original jurisdiction has the authority to receive this suit, it is more than likely that in exercise of its jurisdiction under Article 227 of the Constitution it will exercise superintendence over the Debts Recovery Tribunal that would be authorised to receive the plaintiff's appeal under Section 17 of the Act. That would lead to an embarrassment since the Tribunal would then be seeking to prejudge a matter that may be in issue in the suit instituted before this Court.
11. Section 34 of the said Act of 2002 bars the jurisdiction of the civil Courts in respect of certain matters. The Section provides as follows:
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).
12. The first limb of the section altogether rules out any civil Court receiving a suit in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the Act to determine. As is evident from the wording of the section it does not imply that there must be an action pending before a Debts Recovery Tribunal or Appellate Tribunal for the bar to operate. If a Debts Recovery Tribunal or Appellate Tribunal is empowered by or under the Act to determine any matter - never mind that no proceeding have been brought before either Tribunal - such matter cannot be made the subject matter of a civil suit.
13. The principal relief in the plaint is in respect of a matter that can be canvassed, at the appropriate stage, before the Tribunal under Section 17 of the Act. The right to challenge the rejection by a secured creditor of the representation or objection of a borrower pursuant to Section 13(2) of the Act is merely suspended till such time that the secured creditor resorts to any of the measures specified in Section 13(4) of the Act. There is sound reason for the statute providing thus. A borrower may be aggrieved by the measures taken under Section 13(4) of the Act by the concerned secured creditor but a mere rejection of a representation or objection in response to a notice under Section 13(2) of the Act would not cause any material prejudice to the borrower. The right to challenge the rejection accrues only upon the material prejudice being caused following Section 13(4) being invoked by the secured creditor.
14. The second relief claimed in the plaint, despite it being sugar-coated in innocence, is even more sinister. The plaintiff would have this Court believe that the State Bank entered into an oral agreement with it that would preclude the bank from taking measures to proceed in respect of its security. Even assuming that there was such oral agreement which bound the bank, it is certainly a ground that the plaintiff can carry in its proceedings under Section 17 of the Act; in other words, the Debts Recovery Tribunal is empowered by or under the Act to determine such matter if it is raised by the borrower. That would suffice for the bar under Section 34 of the Act to be attracted.
15. The third relief claimed in the suit is in respect of accounts. Surely, the Debts Recovery Tribunal would be empowered under Section 17 of the Act to assess the quantum of a borrower's indebtedness to the secured creditor.
16. It is evident, therefore, that none of the reliefs that the plaintiff has claimed can be entertained in a civil suit as the matters relating thereto fall within the jurisdiction of the appropriate Debts Recovery Tribunal to determine in accordance with the said Act of 2002.
17. Section 34 of the Act of 2002, does not confer any discretion on the Civil Court. It altogether excludes the jurisdiction of the Civil Court in respect of matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the Act to determine. To allow this suit to progress would be an affront the statutory bar in Section 34 of the Act.
18. CS No. 225 of 2009, along with GA No. 2189 of 2009 are dismissed with costs assessed at 500 GM.
19. Urgent certified photostat copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.