Tuesday 19 July 2016

Whether injunction suit filed by plaintiff before civil court is barred by S 34 of SARFAESI Act?

The   principle   that   emerges   from   the   in­depth
discussion   is that, if remedy is made available statutorily, it

must   be   exhausted   first   before   the   Civil   Court   of   ordinary
jurisdiction can be approached upon afore­emphasized grounds.
Conclusion   is   that   when   the   remedy   is   specifically   made
available and specific remedy of injunction is carved out of the
ordinary jurisdiction of the Civil Court under the special statute,
such  statutory remedy has to be exhausted first by the parties in
accordance with  special statutory provisions  and then only the
aggrieved   party   may   approach   the   Civil   Court   if   there   was
violation of fundamental judicial procedure or if process of law
was abused by the statutory forum/Tribunal or that it acted in
violation   of   the   provisions   of   the   Statute.   This   being   the
position, if, in view of averment in the plaint, the plaintiffs have
statutory remedy, the plaintiffs must first approach the statutory
forum   for   an   order   of   injunctive   reliefs   available   under   the
Statute against the respondents including the Bank concerned.
Scheme and Object/purport of the SARFAESI Act leads us to the
above conclusion.   Hence, no interference is required in the
impugned judgments and orders in the facts and circumstances
of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Second Appeal No.159 of 2013
 Smt. Savita Bhagwantrao Patil,
                   .....       Appellants
                                                                            (Ori.Plaintiffs)
         ::  VERSUS ::
Shyam Pukhraj Asopa,
        .....       Respondents
Ori.Defendants)

CORAM : A. P. BHANGALE, J.
DATE           : APRIL  24, 2014.
Citation:2014(4) Bom C R 825

1.  This   appeal   is   filed   by   the   appellants/original
plaintiffs against Judgment and Order, dated 2.2.2013 passed
by   the   learned   District   Judge­1,   Amravati   in   Regular   Civil
Appeal No.135 of 2006 whereby the appeal was dismissed. The
said appeal arose from the Judgment and Order passed by the
learned 6th Joint Civil Judge (Jr.Dn.),  Amravati in Regular Civil
Suit No.404 of 2005, whereby the suit was dismissed for want of
jurisdiction in view of the finding below preliminary issue under
Section 9­A of the Code of Civil Procedure.
2. The facts, briefly stated, are thus   :­

Appellant No.1 is wife of one Bhagwantrao Patil, who
had purchased an open plot No.32  in the field bearing Survey
No.31/1A,   plot   admeasuring   1150   square   feet   of   mouza
Tarkheda, Taluka and District Amravati.  He had constructed a
house bearing Municipal House No.320 in Ward No.1 on the
said   plot.   Bhagwantrao   Patil   had   abandoned   appellant
No.1/plaintiff No.1 since July 1995; since then he is not heard
as alive.  Appellant No.1 was left without any source of income.
Defendant   No.1,   as   a   friend   of   her   husband,   had   assisted
plaintiff No.1/Savita. In December 1997, defendant No.1 sought
help from plaintiff No.1/Savita to purchase a Truck/Vehicle by
asking her to execute the nominal Sale deed in his favour so
that he can obtain a loan from the Bank. The plaintiffs averred
that the Sale Deed was nominal and void. The Bank (respondent
no.2) has already initiated proceedings for realisation of loan.
On   6.8.2003,   notice   of   attachment   was   issued   on   the   suit
property   (vide   Exh.28)   issued   under   Section   13   (2)  the
Securitization   and   Reconstruction   of   Financial   Assets   and
Enforcement of Security Interest Act, 2002 (hereinafter referred
to as  “the SARFAESI Act”).

3. The suit was filed. The prayer in the suit was; (i) for
relief   of   declaration   that   the   Sale   Deed,   dated   19.12.1997
executed by the plaintiff in favour of defendant no. 1 is void
and,   (ii)   to   restrain   the   defendants   from   dispossessing   the
plaintiffs on the basis of the said Sale Deed. Later relief (ii) was
in effect to restrain the Bank from realising it's non­performing
assets under the SARFAESI Act.   On 12.1.2006,  a preliminary
issue was raised before the trial Court objecting jurisdiction of
the Court to entertain and try the suit.
 4. The   trial   Court   framed   the   preliminary   issue   and
heard the parties.  The trial Court refused to entertain the suit
for seeking the relief (ii) of injunction for want of jurisdiction
but directed the parties to proceed further in view of prayer
clause (i) regarding declaration sought. As the Bank has already
initiated proceedings under the SARFAESI Act, the Civil Court
refused   to   entertain   prayer   for   injunction   by   well­reasoned
order.

 5. The first Appellate Court in Regular Civil Appeal No.
135 of 2006, decided on 2.2.2013 affirmed the order passed by
the trial Court.
6. The   second   appeal   is  admitted  on   the   substantial
question of law stated as under :­
Whether the Courts below were right in holding that
the suit claiming the consequential relief of injunction
restraining   the   respondents/defendants   from
dispossessing the appellants / plaintiffs from the suit
property is barred by the provisions of the Section 34
of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security interest Act, 2002?
7. On behalf of the appellants, it is submitted that the
Civil Court could not have bifurcated the prayers so as to hold
the suit maintainable for the relief of declaration to determine
validity of the Sale Deed and to hold that the prayer for grant of
injunction to restrain the defendants by an injunction order was
not maintainable for want of jurisdiction.

8. On behalf of the respondents, it is urged that, by the
concurrent   findings,   the   Courts   below   held   that,   in   view   of
appeal provided for under Section 17 of the SARFAESI Act, the
plaintiffs have statutory remedy to pray for injunction before the
special forum under the Act. Section 34 of the Act bars the Civil
Court from granting relief of injunction in respect of the cases
required to be heard under the Act.
9. Let us now consider the Legal position     :
The object of SARFAESI Act is very good aiming at
reducing ‘Non­performing Asset”, the constitutional Courts had
to   interpret   the   provisions   of   the   Act   dealing   with   many
complicated   issues   and   keeping   in   view   the   interest   of   the
borrowers. Many issues under the provisions of the SARFAESI
Act   are   settled   now.   The   two   most   important   cases   in   that
process are Mardia Chemicals Ltd vs. Union of India, (2004)4
SCC 311 and  Transcore v. Union of India   reported in   AIR
2007 SC 712 wherein the Supreme Court has settled the legal
position   substantially   with   regard   to   the   SARFAESI   Act   and

made   the   rigor   of   SARFAESI   Act   for   the   recovery   of   NPAs
effective in letter and spirit. When the Statute  creating rights
and obligations   constituted the forum   to enforce them, such
special forums ordinarily  are considered  right  over and above
the general law. Section 9 of the Code of Civil Procedure makes
the   intention   of   the   Legislature   clear.   Civil   court   does   have
plenary jurisdiction to try all civil suits, unless barred expressly
or by necessary implication. The maxim “Ubi jus ibi remedium”
i.e.  wherever  there  is right there  is remedy denotes plenary
jurisdiction   of   the   Civil   Court   to   decide   about   its   own
jurisdiction on the basis of the averments in the plaint. Ouster of
the jurisdiction is not to be readily inferred. But, at the same
time,   jurisdiction   cannot   be   conferred   where   there   is   none.
Neither parties can confer jurisdiction by consent because if the
court decides without jurisdiction, the decree would be  nullity
ab initio.  When the  special Statute has provided the adequate
or sufficient  alternative efficacious  remedy, jurisdiction of the
Civil Court is excluded expressly or by necessary implication.
Section 34 of the SURFAESI Act mentions expressly that the
Civil Court has no jurisdiction   to entertain the Civil Suit in

relation to the matter required to be determined by the Debt
recovery Tribunal   or the Appellate Tribunal. The Civil Court
cannot grant injunction against an action under the SURFAESI
Act or its Rules. Section 35 mentions the non­obstante clause
which has overriding effect. The crux of the question is as to
which of the rights or obligations are sought to be enforced. If
remedy is available to get the right or obligation adjudicated
under the special Act, the suit would not be entertained by the
Civil Court as it would not lie in the Civil Court.       Plenary
jurisdiction   of   the   Civil   Court   under   general   law     could   be
resorted to when the statutory Authorities/Forum/Tribunal have
acted without jurisdiction or when fundamental principles of the
judicial procedure was not complied with. 
10.    A Constitution Bench of the Hon'ble Supreme Court in
the case of  Firm of Illury Subbayya Chetty and Sons   ..vs..
State of Andhra Pradesh, reported at AIR 1964 SC 322, placing
reliance upon the judgments in the cases of the Privy Council
Secretary of State  ..vs..  Mask and Co., reported at AIR 1940
Privy Council 105 and Raleigh Investment Co. Ltd.  ..vs.. The

Governor General in Council, reported  AIR 1947 PC 78, held
as under :
"...................there   is   a   general   presumption   that
there must be a remedy in the ordinary civil court to
a   citizen   claiming   that   an   amount   had   been
recovered from him illegally and that such a remedy
can be held to be barred only on very clear and
unmistakable   indication   to   the   contrary.   The
exclusion   of   the   jurisdiction   of   a   civil   court   to
entertain civil cause will not be assumed unless the
relevant   Statute   contains   an   express   provision   to
that effect or leads to a necessary and inevitable
implication of that nature.............."
11. The Constitution Bench of the Hon'ble Supreme Court
in the case of  Ram Swarup and Ors. v. Shikar Chand and
Another.,   reported   at  AIR   1966   SC   893,   held   that   the
jurisdiction of the Civil Courts to deal with civil causes can be
excluded by the Legislature by Special Act which may deal with
special   subject­matters,   but   the   statutory   provision   must
expressly provide for such exclusion or must necessarily and
impliedly lead to that inference.  However, the said bar would
not be relevant if the plea raised before the Civil Court goes to
the   root   of   the   matter   and   would,   if   upheld,   lead   to   the
conclusion that the impugned order is a nullity.

12. The Constitution Bench of the Hon'ble Supreme Court
in the case of  Dhulabhai and Anr.   ..vs..   State of Madhya
Pradesh  and  Anr.,   reported   at  AIR  1969  SC   78,   held   that
exclusion of jurisdiction of the Civil Court by express provision
may not be a complete bar to entertain a suit if party satisfies
the  Civil Court that the Statutory  Tribunal has not acted in
conformity   with   the   fundamental   principles   of   judicial
procedure.  More so, the Statutory Tribunal must be competent
to provide all the remedies normally associated with the actions'
in Civil Courts, which are either prescribed by the said Statute
or not. More so, the exclusion of jurisdiction of the Civil Court is
not readily to be inferred unless the aforesaid conditions are
fulfilled.     In   the   case   of  Dhulabhai   and   Anr.  (cited  supra),
Hidayatullah, C.J., speaking for the Court on an analysis of the
various   decisions   cited   before   the   Court   expressing   diverse
views,   laid   down   as   many   as   seven   principles   regarding
exclusion of jurisdiction of Civil Court, out of which at least two
principles being germane to the  controversy involved in this
petition are excerpted below :

"(a) Where the statute gives a finality to the orders of
the special Tribunal the civil court's Jurisdiction must
be held to be excluded if there is adequate remedy to
do what the civil courts 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.
(b) Where there is an express bar of the jurisdiction
of the Court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court."
13. In   the   case   of  Sardara Singh (dead) by LRs and
another  ..vs..  Sardara Singh (dead) and others reported at
(1990) 4 SCC 90, the Hon'ble Supreme Court has held that Civil
Court's jurisdiction is available wherever action is taken without
jurisdiction under any Statute.
14. In the case of D.R.Chawla and others ..vs.. Municipal
Corporation   of   Delhi  reported   at  (1993)   3   SCC   162,   the

Supreme Court has held that where statutory enactments only
create   rights   or   liabilities   without   providing   forums   for
remedies,   any   person   having   a   grievance   that   he   had   been
wronged   or   his   right   is   being   affected,   can   approach   the
ordinary Civil Court, but in case a Special Forum is provided for
enforcement of such right or for protection or enforcement of a
liability without any authority in law, the ouster of the Civil
Court's jurisdiction can be upheld on the finding that the rights
and liabilities in question have been created by the Act without
touching   the   existing   Common   Law   rights   and   the   remedy
provided therein is adequate and complete. But where adequate
redressal machinery is not provided under the Statutory Forum,
the Civil Court can still examine the correctness of the order
passed under the Statute.
15. In   the   case   of  Pavitter   Singh   and   others   ..vs..
Niranjan Lal Malhotra reported at JT 2001(8) SC 641, the Apex
Court has held that Section 46 of the Administration of Evacuee
Property Act, 1950 bars the jurisdiction of Civil Court in certain
cases. The Court has held that, in such an eventuality, the Civil

Court   cannot   entertain  and   try  a  suit  as  its  jurisdiction   has
expressly been barred and the only remedy in such cases, if any
person is aggrieved by the order passed under the Act in respect
of those evicted, is to resort to writ jurisdiction  of the Writ
Court.
 16. The Hon'ble Supreme Court, while dealing with the
provisions of The Motor Vehicles Act, 1939, in the cases of Shri
Chand   ..vs.. Government of U.P. and Ors.  reported in  AIR
1986 SC 242,   and  Anwar   ..vs..   First Addl. District Judge,
Bulandshahr and Ors.,  reported   in  AIR   1986   SC  1785,   has
observed that, in most of the matters pertaining to the Motor
Vehicles   Act,   the   jurisdiction   of   the   Civil   Court   is   impliedly
barred   as   the   matter   can   be   adjudicated   upon   by   the   State
Transport Appellate Tribunal only.
17. In the case of Sankaranarayanan Potti (dead) by LRs
..vs.. K. Sreedevi and Ors., reported at (1998) 3 SCC 751, the
Hon'ble Supreme Court has observed as under :

"It is obvious that in all types of civil disputes, civil
courts have inherent jurisdiction as per Section 9 of
the   Code   of   Civil   Procedure   unless   a   part   of   that
jurisdiction   is   carved   out   from   such   jurisdiction,
expressly or by necessary implication, by any statutory
provision   and   conferred   on   any   other   Tribunal   or
authority."
18. Similar view has been reiterated in the case of  Shri
Panch   Nagar   Parakh,   Mandsaur     ..vs..   Purushottam   Das,
reported in AIR 1999 SC 3071.
19. In the case of  P. A. Ahammed Ibrahim   ..vs.. Food
Corporation   of   India  reported   in  AIR   1999   SC   3033,  the
Hon'ble Supreme Court has held that the applications under the
provisions   of   various   Statutes   cannot   be   treated   as   suits   or
claims unless such possibility is specifically provided for under
those particular statutes.
 20. In the case of Bhanu Construction Co.(P.) Ltd.  ..vs..
Andhra Bank, Hyderabad  reported at  AIR 2001 SC 477, the
Hon'ble   Supreme   Court   has   considered   the   provisions   of

Recovery of Debts Due to Banks and Financial Institutions Act,
1993 and held that, after commencement of the provisions of
the said Act ever since it came into force, the suit could not be
instituted as conferring the jurisdiction upon the Tribunal under
the Act would take away the jurisdiction of the Civil Court.
21. In   the   case   of  Vannattankandy   Ibrayi   ..vs..
Kunhabdulla Hajee reported in (2001) 1 SCC 564, the Hon'ble
Supreme   Court   has   considered   the   provisions   of   the   Kerala
Building   and   Lease   Control   Act,   1965,   which   barred   the
jurisdiction   of   the   Civil   Court   for   recovery   of   premises   on
various grounds by the landlord before the Authority prescribed
under the Act and that the suit was not maintainable. The Court
held   that   where   the   building   stood   washed   off   because   of
natural   calamity;   possession   of   the   remaining   land   may   be
recovered before the Civil Court.   The Court held that under
such circumstances, the Civil Court may have jurisdiction, but
had   the   building   been   there,   its   jurisdiction   was   barred   by
Section 9 of the Code because it ceased to be a building and

remained land and in such a situation, only the Civil Court was
competent to entertain and try the suit.
22. In the case of Shri Ram and Anr.  ..vs..  First Addl.
District Judge and Ors. reported in  AIR 2001 SC 1250, the
Apex Court has held that, in tenancy matters, generally revenue
Court   has   the   jurisdiction,   but   in   case   a   suit   is   filed   for
cancellation of a void document, Section 9 of the Code does not
impliedly   bar   such   a   suit   because   the   document   has   been
obtained by fraud or impersonation, as in such a case mere
declaration of title is required and the document, being void, is
merely   to   be   ignored   for   giving   relief   for   declaration   and
possession.
 23. In the case of Ghulam Qadir  ..vs..  Special Tribunal
and others. reported in (2002) 1 SCC 33, the Hon'ble Supreme
Court has held that ­ in case the title is to be established, the
remedy of Civil Court is available and in such case, Section 9 of
the   Code   would   not   bar   the   Civil   Suit   and   would   ask   the

Authority only to avail the remedy under the provisions of J & K
State Evacuees (Administration of Property) Act, 1949.
24. In the case of  M/s. Pearlite Liners Pvt. Ltd.   ..vs..
Manorma Sirsi reported in 2004 (1) AWC 764 (SC), the Apex
Court has held that, as contract of service (Private) cannot be
enforced in Court, the suit for declaration/permanent injunction
that termination was bad, would not be entertained.
25. A   party   is   bound   either   by   provisions   of   the
Constitution, statutory provisions or any rule or under the terms
of the contract which is not against the public policy. In case,
parties under their own agreement expressly agree that their
dispute shall be tried by only one of several forums available to
them, then the party can only file the suit in that Court alone to
which   they   had   agreed   vide  Shriram   City   Union   Finance
Corporation Ltd.  ..vs..  Rama Mishra reported in AIR 2002 SC
2402.
 26. In the case of Abdul Waheed Khan  ..vs.. v. Bhawani
and Ors.  reported in  AIR 1966 SC 1718, the Apex Court has

held that a statute ousting the jurisdiction of a Civil Court must
be strictly construed. In fact, it is the pith and substance of the
plaint which is to be seen   to determine : whether the suit is
maintainable   in   a   Civil   Court   or   before   other   competent
Authority, as the language might be used in such a way that it
may oust the jurisdiction of a particular Court. The form of
action  in relation to void document or instrument regarding
agricultural   land   depends   on   the   real   cause   of   action   with
reference to the facts averred.
 27. In   the   case   of  Smt.  Bismillah    ..vs..     Janeshwar
Prasad and Ors. reported in  AIR 1990 SC 540, the Hon'ble
Supreme Court has observed as under:
"It is true that the question of jurisdiction depends
upon the allegations in the plaint and not the merits
or   the   result   of   the   suit.   However,   In   order   to
determine   the   premise,   the   nature   of   action,   the
pleadings should be taken as a whole................The
real point is not the stray or loose explanations which
abound   in inartistically   drafted  plaint but  the  real
substance of the case is gathered by construing the
pleadings as a whole."

28. In the case of  Azhar Hasan and Ors.  ..vs.. District
Judge. Saharanpur and Ors. reported in AIR 1998 SC 2960, the
Apex Court has held that the rights of tenancy are determinable
by the Revenue Authorities; in a case where the sale deed is
being questioned on the basis of fraud, the executor of the sale
deed must be necessarily impleaded and whether the matter can
be decided by the  Revenue Court or the Civil  Court, would
depend upon the pleadings taken in the plaint and the relief
sought in the suit.
 29. In the case of Ramaswamy (dead) by LRs  ..vs..   M.
Lobo  (dead)  by LRs.,   reported   in  (2001)   10   SCC   176,   the
Hon'ble Apex Court rejected the contention that a suit in respect
of   the   agricultural   land   could   be   entertained   only   by   the
Revenue Court and not by the Writ Court on the ground that the
use of the land stood changed as it was having the residential
buildings.
30. In   the   case   of  Shri   Ram   and   Anr.     ..vs..     Ist
Additional District Judge and Ors. reported in  AIR 2001 SC

1250, while deciding a similar issue, the Hon'ble Supreme Court
has held that suit by a recorded tenure holder in possession for
cancellation of a sale deed being void would be before the Civil
Court.
 31. A seven Judges' Bench of the Hon'ble Supreme Court
in the case of  Kamla Mills Limited   ..vs..   State of Bombay,
reported in AIR 1965 SC 1942 has considered the issue ­  under
what  circumstances a  suit  of  civil  nature can be held to be
barred by special statute. The Court has held that, for deciding
the issue, the Court is to be very conscious about the words used
in   the   statutory   provisions   on   which   the   plea   is   rested,   the
scheme of the relevant provision, their object and purpose. The
issue   becomes   more   important   when   the   bar   is   pleaded   by
necessary implication and it becomes pertinent to inquire as to
whether   remedy   is   normally  associated   with  actions   in  Civil
Courts are prescribed by the said institute or not.
 32. In   the   case   of  Dhruv   Greenfield   Limited     ..vs..
Hukam Singh and Ors. reported in   AIR 2002 SC 2841, the

Supreme Court has held that ­ for ousting the jurisdiction of the
Civil Court, the other statute should provide for an adequate
and   satisfactory   alternative   remedy   to   a   party   that   may   be
aggrieved by the relevant order under its material provision.
33. In   the   case   of  Sahebgouda   (Dead)   by   L.Rs.   and
Ors.  ..vs..  Ogeppa and Ors. reported in AIR 2003 SC 2743, the
Apex Court has held that ­ to prove that the Civil Court does not
have jurisdiction, a very heavy onus lies on the party seeking
ouster of Civil Court Jurisdiction as exclusion of jurisdiction is
not to be easily inferred.
34. In the case of Dwarka Prasad Agrawal  ..vs.. Ramesh
Chandra Agrawal and Ors. reported in 2003 (3) SCCD 1210 :
AIR 2003 SC 2696, the Hon'ble Supreme Court has considered a
case   as  to   whether   the   jurisdiction   of   the   Civil   Court   stood
barred by the Companies Act.   In that case, the owner of the
Printing Press leased out the premises to a company, of which
he himself had been one of the members. Another member of
the   Company wanted to disposses the   lessor  of  the  Printing

Press. In such circumstances, eviction suit filed by the lessor
against the said other member of the Company was held to be
maintainable   in   view   of   the   provisions   of   Section   6   of   the
Specific Relief Act, 1963 in spite of the fact that the provisions
of Sections 9 and 10 of the Companies Act, 1956 barred the
jurisdiction of the Civil Court. The Court held that, in such an
eventuality, the statutory provisions ousting the jurisdiction of a
Civil Court requires very strict interpretation.
35. In   the   case   of  Chhedi Lal  Gupta  and Ors.    ..vs..
Mohammad Sattar reported in  AIR 1963 SC 448 ­ a suit under
Section 73 of the Trade Marks Act had been filed in the Civil
Court and the objection had been filed regarding jurisdiction,
which   was   dismissed   by   the   Civil   Court.   However,   in   Writ
Petition, the High Court issued the writ of prohibition to the
learned Civil Court not to proceed with the trial of the suit and
issued further direction to return the plaint under Order VII,
Rule 10 of the Code of Civil Procedure to enable the plaintiff to
file the same in a Court/Authority of having the jurisdiction in
the matter.

 36. In the case of Auto Engineering Works  ..vs.. Bansal
Trading Company and Ors. reported in (2001) 10 SCC 630, the
Hon'ble Supreme Court has held that once the Civil Court comes
to the conclusion after having heard on the issue of jurisdiction
that it does not have the jurisdiction to entertain the suit, the
Court must return the plaint to present the same before the
Court of competent jurisdiction.
37. In the case of  S. Govinda Menon   ..vs.. Union of
India and Ors. reported in  AIR  1967 SC 1274, the  Hon'ble
Supreme Court has held that there is no prohibition for the Writ
Court to issue the writ of prohibition to the inferior Court if it
assumes a jurisdiction which it does not possess or this is to
prevent   it   from   exceeding   the   limits   of   its   jurisdiction,   the
purpose   of   issuing   such   a   writ   is   to   keep   the   inferior
Court/Tribunal within their bounds of limited jurisdiction. Writ
may also be issued in case of departure from the principles of
natural justice.

 38. In the case of M/s. East India Commercial Co. Ltd.,
Calcutta   and   Anr.     ..vs..     Collector   of   Customs,   Calcutta
reported in AIR 1962 SC 1893, the notice issued by the statutory
Authority had been challenged being without jurisdiction.   In
the instant case, it does not involve the similar feature; hence,
none of the judgments relied upon by the learned Counsel for
the petitioner has any application in the instant case.
39. The Hon'ble Supreme Court in the case of Thirurnala
Tirupati   Devasthanams   and   Anr.     ..vs..   Thallappaka
Ananthacharyulu and Ors. reported in AIR 2003 SC 3209 has
considered   the   issue   at   length   and   also   had   taken   into
consideration the earlier judgments, particularly, in the cases of
G.Veerappa Pillai   ..vs.. Raman and Raman Ltd., reported in
AIR 1952 SC 192; T.C. Basappa  ..vs.. T. Nagappa, reported in
AIR 1954 SC 440;  Hari Vishnu Kamath   ..vs.. Syed Ahmad
Ishaque, reported in  AIR 1955 SC 233;  Nanduri Yogananda
Lakshminarasimhachari   ..vs..   Sri   Agastheswaraswamvaru,
reported in AIR 1960 SC 622; Ujjam Bai  ..vs..  State of U.P.,
reported   in  AIR   1962   SC   1621;  Gulabchand   Chhotalal

Parikh  ..vs..  State of Gujarat reported in AIR 1965 SC 1153
and  Naresh Shridhar Mirajkar   ..vs..   State of Maharashtra,
reported in   AIR 1967 SC 1, and has summarized the law as
under :
" On the basis of the authorities it is clear that the Supreme
Court   and   the   High   Courts   have   power   to   issue   writs,
including a writ of prohibition.   A writ of prohibition is
normally issued only when the inferior court or Tribunal
(a) proceeds to act without or in excess of jurisdiction; (b)
proceeds to act in violation of the rules of natural justice;
(c) proceeds to act under law which is itself ultra vires or
unconstitutional, or (d) proceeds to act. in contravention of
fundamental   rights.   The   principles,   which   govern   the
exercise of such power, must be strictly observed. A writ of
prohibition must  be issued   only   in rarest  of  rare  cases.
Judicial discipline of the highest order has to be exercised
whilst issuing such writs. It must be remembered that the
writ   jurisdiction   is   original   Jurisdiction   distinct   from
appellate Jurisdiction.  An appeal cannot be allowed to be
disguised in the form of a writ. In other words, this power
cannot be allowed to be used "as a cloak of an appeal in
disguise".  Lax use of such a power would impair the dignity
and integrity of the subordinate court and could also lead to
chaotic consequences. It would undermine the confidence of
the subordinate court.   It was not even argued that there

was total lack of jurisdiction in the Civil Court. It could not
be dented that the Civil Court, before which the suit was
pending, had powers to decide on the maintainability of the
suit and to decide on questions of its jurisdiction. The Civil
Court had jurisdiction to decide whether the suit was barred
by Section 14 of the said Act or on the principles of res
judicata/estoppel. Thus unless there was some very cogent
or strong reason the High Court should not have prevented
the   Court   of   competent   Jurisdiction   from   deciding   these
questions.  In other words, the High Court should not usurp
the jurisdiction of the Civil Court to decide these question in
the   case   of  Firm   Seth   Radha   Kishan     ..vs..
Administrator,   Municipal   Committee,   Ludhiana,
reported at AIR 1963 SC 1547, the Honourable Apex Court
held that in a case where Jurisdiction of Civil Court has
expressly been barred, a suit should not be entertained even
If it is impliedly barred under Section 9 of the Code, but a
suit in the Civil Court will always lie to question the order
of a Tribunal created by a Statute, even if its order is,
expressly or by necessary implication, made final if the said
Tribunal abused its power or does not act under the Act but
in violation of Its provisions.(emphasis mine)”
40. The   principle   that   emerges   from   the   in­depth
discussion   is that, if remedy is made available statutorily, it

must   be   exhausted   first   before   the   Civil   Court   of   ordinary
jurisdiction can be approached upon afore­emphasized grounds.
Conclusion   is   that   when   the   remedy   is   specifically   made
available and specific remedy of injunction is carved out of the
ordinary jurisdiction of the Civil Court under the special statute,
such  statutory remedy has to be exhausted first by the parties in
accordance with  special statutory provisions  and then only the
aggrieved   party   may   approach   the   Civil   Court   if   there   was
violation of fundamental judicial procedure or if process of law
was abused by the statutory forum/Tribunal or that it acted in
violation   of   the   provisions   of   the   Statute.   This   being   the
position, if, in view of averment in the plaint, the plaintiffs have
statutory remedy, the plaintiffs must first approach the statutory
forum   for   an   order   of   injunctive   reliefs   available   under   the
Statute against the respondents including the Bank concerned.
Scheme and Object/purport of the SARFAESI Act leads us to the
above conclusion.   Hence, no interference is required in the
impugned judgments and orders in the facts and circumstances
of the case.  The substantial question is answered accordingly.

The second Appeal is dismissed with costs.
                                                          JUDGE
41. Now the learned Counsel for the appellants prays for
staying operation of this Judgment and Order. Although I am
not inclined for staying operation of the Judgment and Order,
since   it   is   stated   that   there   was   interim   relief   pending   the
appeal,   operation   of   this   Judgment   and   Order   shall   remain
stayed till expiry of four weeks from today.

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