PUNJAB NATIONAL BANK Vs. DILIP DEVDA OTHERS

JUDGEMENT

(1.) The order dated 25.01.2018 passed by learned Second Civil Judge, Class II, Indore in Civil suit No 1343-A/2017 has been called in question by way of the present revision whereby the court below has dismissed the application under Order 7, Rule 11 of the Code of Civil Procedure (In short"CPC") filed by the present applicant/defendant. Briefly stated the facts of the case that on 09.05.2013 the respondent No.2 applied the applicant-Bank for financial assistance. The bank sanctioned the loan and mortgaged was created in favour of the bank with respect to the Flat No.202, Sundar Ratnraj Apartment situated at plot No. A-23, Silicon City, Nihalpurmundi, Indore. The respondent No. 2 defaulted in payment of loan amount and therefore, the loan account has been declared as Non Performing Assets (NPA) by the applicant-Bank. On 10.04.2017, a notice under Section 13 (2) of SARFESAI Act was issued to the respondent No. 2 . Even after service of the notice, neither the respondent No.2 deposit the outstanding amount nor any reply to the notice was sent. On 25.05.2017 the symbolic possession of the mortgaged property was taken by the applicant-Bank under Section 13 (4) of the SARFESAI Act. Thereafter, the application under Section 14 of the SARFESAI Act has been filed by the applicant before District Magistrate, Indore for taking vacant physical possession of the mortgaged property and the same was allowed on 10.01.2018.

(2.) Being aggrieved by the aforesaid action initiated by the applicant-bank, respondent No.1 has filed suit for permanent injunction alongwith documents contending inter alia claiming to be a tenant in the suit property owned by the defendant No.1, which is registered as Civil Suit No. 1343-A/2017.

(3.) After receiving the notice from the Civil Court an application under Order 7, Rule 11 of C.P.C. was filed by the applicant challenging the maintainability of the suit in view of the provision contended under Section 34 of the SARFESAI Act. It was also contended in the application that a lease for more than a year can only be executed by a registered instrument whereas the basis of the present suit is a lease agreement dated 03/02/2017 which has been purported to be executed for a period of 3 years, which is an unregistered document. Hence, the plaintiff is not entitled for lease on the basis of the said unregistered document.