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Judgment
Sudhanshu Dhulia, J.
The appellant has filed the present appeal under Order 43 Rule 1 CPC challenging the order dated 07.04.2017 passed by Civil Judge (Senior
Division), Vikasnagar, Dehradun in Original Suit No.17 of 2017, by which the application of the appellant for temporary injunction has been rejected.
The application of the appellant was rejected on the ground that admittedly the property has been mortgaged to the respondent no.1/bank which is
defined as a secured creditor in terms of Section 2 (zd) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (from hereinafter referred to as the “Actâ€) and proceedings under the Act have already been initiated by the bank against the
borrower. Appellant is admittedly a subsequent purchaser of the property in question.
The application of the appellant for temporary injunction has been rejected by the court below considering that there is a bar of Section 34 of the
Act. Section 34 of the Act reads as under:-
“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).â€
Moreover, the court below was also of the opinion that the appellant has a remedy to file an appeal under Section 17 of the Act before the Debts
Recovery Tribunal, inasmuch as any person who is affected can file an appeal before the Debts Recovery Tribunal.
Admittedly, as of now, the Debts Recovery Tribunal is functioning at Dehradun. The appellant has an equally efficacious remedy to file an appeal
before the Debts Recovery Tribunal.
In view of the above, the appeal stands dismissed on the ground of alternative remedy. Interim order dated 18.04.2017 stands vacated.
However, on consideration of the fact that the property which has been mortgaged on which possession is being sought by the secured creditor is a
residential house, status quo shall be maintained on the property in question for a period of forty-five days, from today, in order to enable the appellant
to file an appeal before the Debts Recovery Tribunal. It is made clear that appellant would always be at liberty to make an application for suitable
interim relief before the Debts Recovery Tribunal. Since this matter is time barred, the appellant would also be at liberty to move an application for
condonation of delay before the Debts Recovery Tribunal, which shall be considered in accordance with law.