Whether creditor can seek more than one remedy simultaneously?

 We may only end by saying that cases like the present one have to be decided by balancing the interest of creditors to whom money is owing, with a debtor company which will now go in the red since a winding up petition is admitted against it. It is not open for persons like the appellant to resist a winding up petition which is otherwise maintainable without there being any bona fide defence to the same. We may also hasten to add that the respondent cannot be said to be blowing hot and cold in pursuing a remedy under the Recovery of Debts Act and a winding up proceeding under the Companies Act, 1956 simultaneously. Here, it is important to refer to the judgment of Lord Atkin in Lissenden v. C.A.V Bosch, Ltd., [1940] 1 All E.R 425, at 436-437, which says:

“The doctrine of election could have no place in the present case. The applicant is not faced with alternative rights. It is the same right that he claims, but in larger degree. In Mills v. Duckworth, [1938] 1 All E.R 318, a plaintiff who had been awarded damages for negligence had taken the judgment sum out of a larger sum paid into Court and had then appealed against the quantum of damages, and was met by a similar objection to his appeal. Greer, L.J, in overruling the objection, pointedly said, at p. 321:

“He [the plaintiff] said: “I am not going to blow hot and cold. I am going to blow hotter.”

Here the applicant is not faced with a choice between alternative rights. He has exercised an undisputed right to compensation, and claims to have a right to more. One has not lost one's right to a second helping because one has taken the first.”

30. When secured creditors like the respondent are driven from pillar to post to recover what is legitimately due to them, in attempting to avail of more than one remedy at the same time, they do not “blow hot and cold”, but they blow hot and hotter. The appeals are accordingly dismissed with no order as to costs.

In the Supreme Court of India

(Before R.F Nariman and Navin Sinha, JJ.)

Civil Appeal No. 1291 of 2019

Swaraj Infrastructure Pvt. Ltd.v.  Kotak Mahindra Bank Ltd

Citation: 2019 SCC OnLine SC 92

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How to determine whether particular dispute falls within jurisdiction of civil court or debt recovery tribunal?

 In view of above, the sum and substance of the decision is
that :
(i) The jurisdiction of the Civil Court to entertain,
try and decide any suit or proceeding in respect of
the property, which is the subject matter of security
interest created in favour of a secured creditor, is
barred only to the extent of the matters, which the
Debts Recovery Tribunal or the Appellate Tribunal is
empowered by or under the Act to determine.
(Para 18)
(ii) The jurisdiction of the Civil Court in respect of
the matters, which do not fall within the jurisdiction
of the Debts Recovery Tribunal or its Appellate

Tribunal under Sections 17 and 18 of the said Act, is
not ousted or barred under the provision of
Section 34 of the said Act and the Civil Court
continues to exercise such jurisdiction. (Para 18)
(iii) In order to decide the question as to whether
the jurisdiction of the Civil Court under Section 9 of
the Civil Procedure Code is ousted or not, the real
test would be to find out whether the Debts
Recovery Tribunal under Section 17, is empowered
to hold an enquiry on a particular question and to
grant relief in respect thereof. The extent of
jurisdiction of the Debts Recovery Tribunal under
Section 17 shall decide the extent of exclusion of
jurisdiction of Civil Court to decide the dispute in
respect of the suit property. (Para 18)
(iv) The jurisdiction of the Civil Court to entertain,
try and decide a civil suit challenging the action of
the defendant no.3-Bank to take possession of the
suit property and to sell the same to recover its
debts by enforcing security interest in the suit
property in accordance with the provisions of
Section 13 of the said Act, is completely barred by
Section 34 of the said Act. (Paras 19, 20 and 23)
(v) The jurisdiction of the Civil Court to entertain,

try and decide the suit for partition and separate
possession of the property in respect of which
security interest is created in favour of secured
creditor, is not barred under Section 34 of the Act.
(Para 21)
(vi) The jurisdiction of Civil Court to entertain, try
and decide the Civil Suit claiming relief of
declaration that the action of the secured creditor
to take possession of the property and to sell the
same, is fraudulent and void, as has been held by
the Apex Court in Mardia Chemical's case, is not
barred by Section 34 of the said Act. (Para 23)
(vii) The jurisdiction of the Civil Court to entertain,
try and decide Civil Suit simpliciter for permanent
injunction to permanently restrain the defendant
No.3-Bank from taking possession of the suit
property and selling the same or to create any
third-party interest without any substantive relief of
declaration that the creation of security interest in
favour of a secured creditor was fraudulent and
void ab initio, is completely barred under the
second part of Section 34 and hence
consequentially, the jurisdiction of Civil Court to
pass an order of temporary injunction in such suit,
restraining the defendant No.3-Bank from alienating

the suit property or creating any third-party interest
therein, is also barred. (Para 25)
(viii) Once it is held that the jurisdiction of Civil
Court is not ousted under Section 34, to grant
substantive relief of declaration that creation of
security interest in favour of a secured creditor, was
fraudulent and void, its jurisdiction to grant
consequential relief of permanent injunction and
the relief of temporary injunction in such suit, is not
ousted. (Para 26)
(ix) Once it is held that the jurisdiction of the Civil
Court to entertain, try and decide the civil suit for
partition and separate possession of the suit
property is not barred by Section 34 of the said Act,
then it follows that the jurisdiction of the Civil Court
to grant permanent and temporary injunction
restraining the defendants from dealing with the
suit property or creating third party interest therein
is also not ousted by Section 34 of the said Act.
(x) It is open for the plaintiffs or any other person
having any right, title, share or interest in the suit
property to lodge their/his objection under
Section 17 of the said Act before the Debts
Recovery Tribunal, which is competent to deal with

it in accordance with law and to pass such orders as
are necessary to protect the interest of the
plaintiffs/such person vis-a-vis the suit property and
also to balance the equities. (Para 30)
(xi) The question as to what shall be the effect of a
decree passed in the suit for partition and separate
possession of the suit property or for declaration
that the action of secured creditor is fraudulent and
void ab initio by the Civil Court, on the enforcement
of security interest by the defendant No.3-Bank, i.e.
the secured creditor, can be determined only after
culmination of both the proceedings and not before.
(Para 30)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
 NAGPUR BENCH, NAGPUR
Civil Revision Application No.33 of 2010
And
Appeal against Order No.38 of 2010
Civil Revision Application No.33 of 2010
State Bank of India,

Versus
Shri Sagar s/o Pramod Deshmukh,

CORAM : R.K. Deshpande, J.

Date of Pronouncing the Judgment : 11-2-2011
Citation:2011(3) MHLJ71

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When decision of civil court would be binding on Debt recovery tribunal?

 I may however record that the possibility of a conflict in the
judgment of this court in this suit and of the order of the DRT in the
proceedings, if any, initiated by the defendant against the plaintiffs
before the DRT cannot be ruled out. The relief claimed by the
plaintiffs in this suit if granted would tantamount to holding the
plaintiffs not liable for any claims of the defendant against the
company. In the event of proceedings against the plaintiffs being
initiated before the DRT, the DRT would also be called upon to
decide whether the guarantees furnished by the plaintiffs stand
discharged or not. It is this aspect which had bothered this court in
even admitting the suit. However, I find Nahar Industrial
Enterprises Ltd. to have dealt with this aspect of the matter also. It
has in paras 44 & 45 of the judgment referred to judgment of this
court in Cofex Exports Ltd. Vs. Canara Bank AIR 1997 Delhi 355.
This court had held that finality shall attach to the findings arrived at
and reached by each of the two within its respective jurisdictional
competence; issues heard and decided by the DRT shall operate as
res judicata and shall bind the parties in the suit – however the civil
court shall be free to decide such issues as lie within its jurisdictional
competence and if the civil court must decide an issue seized by it
and within its competence and if there be an unavoidable conflict
between the findings of civil court and the DRT, the findings of the
civil court would override and supercede the findings of DRT. It thus
appears that in such eventuality, if the civil court has decided the
matter first, the finding of the civil court would be binding on the
DRT. 
IA No.5814/2009 in CS(OS)No.527/2009 
IN THE HIGH COURT OF DELHI AT NEW DELHI
 IA No.5814/2009 in CS(OS)No.527/2009
Date of decision: 06.10.2009
MRS. SUNAYANA MALHOTRA & ORS. .…Plaintiffs

Versus
ICICI BANK ... Defendant

CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

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