1. Admit.
2. Heard finally with the consent of the learned counsel for the parties.
3. The applicant is the original defendant no.2 in the suit that is filed by the non applicant no.1 for grant of temporary injunction seeking to restrain the
defendants from evicting the plaintiff from the suit premises without following the due process of law. In that suit, the defendant no.2 filed an
application under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, 1908, (for short, the Code) seeking rejection of the plaint.Â
By the impugned order dated 21.03.2018 that application has been rejected.
4. In the suit, it is case of the original plaintiff that he has entered into a tenancy agreement in respect of flat no. CÂ702 on 10.10.2015 with the
defendant no.1. That agreement was for a period of four years and the plaintiff was paying Rs.8,000/Âper month as rent. On 31.07.2017, the
Additional Collector passed an order permitting the defendant no.2Âpresent applicant to take vacant possession of the flat in question. According to
the plaintiff, as he is the tenant of defendant no.1, he is not liable to be evicted from the suit premises on the basis of order dated 31.07.2017. On
that basis, the aforesaid suit came to be filed.
5. The defendant no.2 which is a Bank and a creditor of the defendant no.1 filed an application under the provision of Order VII Rule 11 of the Code
on the ground that in the light of provisions of Section 17(4ÂA) read with 13(4) of the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short, the Act of 2002), the Civil Court had no jurisdiction to entertain the suit. That application was
opposed by the original plaintiff. The trial Court by the impugned order held that on perusal of the plaint, it could not be said that the suit was barred
by law. The application was accordingly rejected. Being aggrieved, the defendant no.2 has challenged the said order.
6. Shri S.D.Khati, learned counsel for the applicant submitted that on a plain reading of the plaint, it was clear that the suit was not maintainable and
the plaint was liable to be rejected. In the plaint, it was pleaded that there was a tenancy agreement in respect of flat no. CÂ702 and with regard to
the same flat, the Additional Collector had passed an order on 31.07.2017 in proceedings under Section 13 of the Act of 2002. The plaintiff was
claiming right on the basis of the tenancy agreement and in view of the provisions of Section 17 (4ÂA) of the Act of 2002, that right could be
determined only in proceedings under Section 17(1) of the Act of 2002. He also referred to the provisions of Section 34 of the Act of 2002 to urge
that the jurisdiction of the Civil Court to entertain such claim was specifically barred. It was further submitted that the decision relied upon by the
trial Court in the case of Vishal N. Kalsaria Vs. Bank of India and others, reported in 2016(5) Mh.L.J. 321, would not be applicable considering the
fact that the provisions of Section 17 have been subsequently amended. It was thus submitted that the plaint was liable to be rejected.
7. Shri H.F.Karbhari, learned counsel for the nonÂapplicant no.1plaintiff supported the impugned order. According to him, the suit was maintainable
before the trial Court as the plaintiff was not a party to the alleged transaction between defendant no.1 and defendant no.2. Merely because the
tenancy agreement was not registered, the same would not be a reason for rejecting the plaint. The plaintiff was seeking to protect his possession
and his prayer was that he should not be evicted without following the due process of law. The plaintiff was not concerned with the dispute between
defendant no.1 and defendant no.2. It was submitted that the trial Court rightly considered the law in this regard and rejected the application. There
was no jurisdictional error committed by the trial Court.
8. I have heard learned counsel for the parties and I have perused the plaint averments in the suit. As per the averments made in the plaint,
defendant no.1 and the plaintiff entered into a tenancy agreement in respect of flat No. CÂ702 on 10.10.2015. That agreement was for a period of
four years.
However, according to the plaintiff on 31.07.2017, the Additional Collector passed an order permitting the defendant no.2 to obtain possession of the
suit premises. One of the prayers made in the plaint is to restrain the defendant no.2 from evicting the plaintiff on the basis of that order dated
31.07.2017.
From the pleadings in the plaint, it is clear that the plaintiff claims to be a tenant of the suit property and according to him, he has been inducted by the
defendant no.1. The order dated 31.07.2017 has been passed in favour of the defendant no.2 which entitles it to recover possession by having
recourse to the provisions of the Act of 2002.
9. The provisions of Section 17 of the Act of 2002 have been amended by Act No.44 of 2015 and subÂsection 4(A) has been added to Section 17.Â
As per this provision, any person including a borrower, who is aggrieved by any of the measures referred to in Section 13(4) of the Act of 2002 being
taken by a secured creditor can approach the Debts Recovery Tribunal and can raise grievance in that regard. A person claiming tenancy or
leasehold rights is also entitled to make such application under Section 17 of the Act of 2002. As per the provisions of Section 34 of the Act of
2002, the Civil Court has no jurisdiction to entertain any suit or proceedings with regard to any matter which the Debts Recovery Tribunal is
empowered under the Act of 2002 to adjudicate. Thus, on reading of the provisions of Section 17(4ÂA) and Section 34 of the Act of 2002, it
becomes clear that a person claiming tenancy or leasehold rights with regard to a secured asset if aggrieved by any measure taken under Section
13(4) of the Act of 2002 can approach the Debts Recovery Tribunal and seek relief. To that extent, the jurisdiction of the Civil Court has been
excluded. On a plain reading of the plaint, it is obvious that the plaintiff seeks to restrain the defendant no.2 from evicting him on the basis of the
order dated 31.07.2017 that is passed by the Additional Collector in exercise of the powers under Section 13 of the Act of 2002 at the instance of the
defendant no.2.
10. The decision in Vishal N.Kalasaria (supra) was rendered on 20.01.2016. As noted above, the provisions of Section 17(4ÂA) of the Act of 2002
have been amended on 01.09.2016 and hence in view of the amended provisions, the ratio of aforesaid decision cannot be made applicable to the case
in hand. The trial Court without considering the provisions of Section 17(4ÂA) of the Act of 2002, rejected the application below Exhibit 18 and thus
committed jurisdictional error.Â
11. Hence for aforesaid reasons, the order passed below Exhibit 18 dated 21.03.2018 is liable to be quashed and set aside. Accordingly, the
application that was filed by defendant no.2 below Exhibit 18 is allowed in terms of its prayer. Plaint in R.C.S.No.33/2018 is rejected under the
provisions of Order VII Rule 11 (d) of the Code. It is open for the plaintiff to take such other steps as are permissible in law to ventilate his
grievances.Â
12. Civil Revision Application is allowed in the aforesaid terms leaving the parties to bear their own costs.
