- (1.) This application is directed against the Order No.16 dated May 18, 2010 passed by the learned Civil Judge (Senior Division), 2 nd Court, Alipore in Title Suit No.2363 of 2009 thereby rejecting an application under Order 7 Rule 11(d) of the C.P.C. filed by the defendant no.1 in the suit. The plaintiff / opposite party no.1 herein instituted a suit being Title Suit No.2363 of 2009 for declaration of tenancy, permanent injunction and other reliefs before the learned Civil Judge (Senior Division), 2 nd Court, Alipore. The plaintiff sought for a decree of declaration that he is a monthly tenant under the defendant No.2 and that he cannot be evicted otherwise than under the provisions of the West Bengal Premises Tenancy Act, 1997 and other consequential declarations, permanent injunction etc. The defendant no.1 entered an appearance and it filed an application under Order 7 Rule 11(d) of the C.P.C. and that application was rejected on contest without cost by the impugned order. Being aggrieved, the defendant no.1 has preferred this application. Now, the question is whether the impugned order should be sustained.
(2.) Upon hearing the learned counsel for the parties and on going through the materials on record, this Bench finds that the defendant no.1 is the bank and the defendant no.2 is the landlord in respect of the premises in suit under occupation of the plaintiff. The defendant no.2 is the secured debtor under the defendant no.1 and the defendant no.1 issued notice under Section 13(2) of the SARFAESI Act, 2002 demanding payment of the outstanding from the defendant no.2. The defendant no.2 had received the said notice. On getting a copy of the said notice, on demand, the plaintiff/tenant learned that the defendant no.2 had availed himself of various credit facilities from the defendant Bank and had mortgaged various immovable properties including the suit premises. Thereafter, on July 16, 2009 the notice under Section 13(4) of the said Act was affixed on various portion of the suit premises. On realising the issuance of such notice under Section 13(4) of the said SARFAESI Act, 2002, the plaintiff filed the suit for the reliefs stated above.
(3.) Now, in order to consider the prayer for rejection of plaint on the ground of being barred by any law, the averments made in the plaint are the matters to be looked into without any doubt or dispute. Order 7 Rule 11(d) of the C.P.C. will not apply to any doubt or disputed question. Therefore, this Bench is to consider the averments made in the plaint to decide the prayer of the defendant bank.;