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Judgment
The subject revision petition has been preferred u/S.115 of the CPC impugning the order dated 29.1.2026 passed by II Civil Judge, Sr. Division, Depalpur, Distt Indore in RCSA 29 of 2025 whereby the application filed by the petitioner u/O. 7 Rule 11 of the CPC for rejection of plaint was dismissed.
The short facts of the case are that the respondent No.2 mortgaged the house with the petitioner bank and obtained loan. Upon default, the bank has taken action under the provisions of SARFAESI Act and also applied u/S.14 to the District Magistrate for providing the help to take possession of the secured assets. The application filed u/S.14 was allowed by order dated 27.11.2024 by ADM, District Indore and in compliance of the order, the Tehsildar has sealed the house and handed over the possession of the suit house to the petitioner bank on 26.3.2025.
The respondent No.1 - plaintiff who is sister of the respondent No.2 filed a suit for declaration, possession, partition and permanent injunction against the bank and the respondent No.2 on the ground that the suit house was bequeathed by her grandfather through a will and 50% share in the suit house was bequeathed to her and balance 50% to the respondent No.2. It is alleged in the suit that the respondent No.2 without any knowledge and consent of the respondent No.1, mortgaged the property with the bank and obtained the loan and now the bank wants to auction the property, in which the respondent No.1 - plaintiff is having 50% share. The suit has been filed seeking decree of declaration of 50% share in the suit house, partition and permanent injunction.
The petitioner bank after appearing in the suit, filed an application u/O.7 Rule 11(d) of CPC for rejection of plaint on the ground that as per the provisions of Sec. 34 of the SARFAESI Act, the jurisdiction of the Civil Court is barred and the person aggrieved from any action taken by the secured creditor u/S.13(4) or Sec.14 may file an application u/S.17 before DRT. The trial court by impugned order dated 29.1.2026 dismissed the application on the ground that the relief of declaration of title, partition and permanent injunction cannot be granted by the DRT and, therefore, the civil suit filed by the respondent No.1 - plaintiff is maintainable and the plaint cannot be rejected at this stage. The said order is under challenge in the instant civil revision petition.
Counsel for petitioner bank submits that the provisions of Sec.34 of SARFAESI Act 2002 creates a bar and the civil court is precluded from entertaining any suit in respect of any secured asset. He submits that this bar is applicable to the third parties also as Sec.17 provides remedy to all the persons except the secured creditor to approach the DRT, if they are aggrieved by the action taken by the secured creditor u/S.13(4) or 14 of the Act. He submits that the claim put up by the respondent No.1 - plaintiff is frivolous and the suit has been filed by the plaintiff in collusion with the borrower. He prays for allowing the application filed u/O.7 Rule 11 of the CPC by setting aside the impugned order dated 29.1.2026.
Counsel for respondent No.1 - plaintiff opposed the revision petition and supported the impugned order passed by the trial court and submits that the suit has been filed for declaration of share in the subject property and also for partition and permanent injunction. These reliefs cannot be granted by the DRT and DRT has no jurisdiction to entertain any suit for partition of the property and declaration of tile and permanent injunction and, therefore, the trial court has not committed any error in dismissing the application filed by the petitioner u/O.7 Rule 11 of the CPC. He relied on the judgment delivered by the Supreme Court in the matter of Central Bank of India & another Vs. Prabha Jain & Ors (2025) 4 SCC 38 and submits that even if one of the reliefs is barred u/S.34 of the SARFAESI Act, the plaint cannot be rejected u/O.7 Rule 11 of the CPC. He prays for dismissal of the revision petition.
The Supreme Court in the matter of Central bank (supra) has held as under:-
"23.Even if we would have been persuaded to take the view that the third relief is barred by Section 17(3) of the Sarfaesi Act, still the plaint must survive because there cannot be a partial rejection of the plaint under Order 7 Rule 11CPC. Hence, even if one relief survives, the plaint cannot be rejected under Order 7 Rule 11CPC. In the case on hand, the first and second reliefs as prayed for are clearly not barred by Section 34 of the Sarfaesi Act and are within the civil court's jurisdiction. Hence, the plaint cannot be rejected under Order 7 Rule 11CPC.
24.If the civil court is of the view that one relief (say relief A) is not barred by law but is of the view that relief B is barred by law, the civil court must not make any observations to the effect that relief B is barred by law and must leave that issue undecided in an Order 7 Rule 11 application. This is because if the civil court cannot reject a plaint partially, then by the same logic, it ought not to make any adverse observations against relief B."
No doubt that the relief of declaration of share in the disputed property and partition is not maintainable before DRT and the jurisdiction of civil court is not barred by any provisions of law in respect of suit for declaration, partition and permanent injunction. The respondent No.1 -plaintiff has prayed for decree of permanent injunction against the petitioner bank seeking injunction against the bank from taking any action in respect of the suit house. Counsel for petitioner has emphasised the said relief and submits that this relief is barred before the civil court in view of Sec.34 of SARFAESI Act.
After considering the law laid down by the Supreme Court in the matter of Central Bank (supra), this Court is of the view that the trial court has not committed any error in not rejecting the plaint at this stage and consequently the impugned order cannot be set aside. The petitioner bank will be at liberty to raise the issue of maintainability of the suit during trial by filing the written statement as well as at the time of opposing the application for grant of temporary injunction.
In view of the above, the civil revision petition is dismissed. No order as to costs.