I.P. Mukerji, J. - (1.) THIS is the third interim application taken out by the plaintiff in this suit. It challenges a sale notice dated 27th February, 2014 published by Canara Bank. It is issued under Rules 8(6) and (9) of the Security Interest (Enforcement) Rules, 2002. It proposes to sell the properties mentioned in column F thereof being a parcel of land in Burdwan. The name of the borrower is mentioned in the notice as M/S. Capricorn Oils Ltd. of 20 N.S. Road, 2nd floor, Kolkata. One clause in the notice is very important. It states as follows: - - "In view of order dated 10th January, 2014 passed by the Hon'ble High Court, Calcutta and without prejudice, the bank's right to recover its dues in respect of the credit facilities granted to Capricorn Oils Limited subsequent to 25.11.2009 with further interest accrued thereon till realisation is not included in this notice." The liability of the borrower is stated to be Rs. 2,65,25,263.57. Interest is claimed till 25th November, 2009 together with "unapplied interest with effect from 26th November, 2009".
(2.) AT the outset, Mr. Ajoy Krishna Chatterjee, learned senior counsel appearing for the bank, takes the point of maintainability. He argues that the suit is completely barred under section 34 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SICA). He cites Jagdish Singh v. Heeralal and Others in a judgement of the Hon'ble Supreme Court reported in : (2014) 1 Company Law Journal 307. I quote a passage from that judgement - -"We are of the view that the Civil Court jurisdiction is completely barred, so far as the 'measure' taken by a secured creditor under sub -section (4) of section 13 of the Securitisation Act, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal, to determine as to whether there has been any illegality in the 'measures' taken. The bank, in the instant case, has proceeded only against secured assets of the borrowers on which no rights of respondents Nos. 6 to 8 have been crystalised, before creating security interest in respect of the secured assets. In such circumstances, we are of the view that the High Court was in error in holding that only Civil Court has jurisdiction to examine as to whether the 'measures' taken by the secured creditor under sub -section (4) of section 13 of the Securitisation Act were legal or not. In such circumstances, the appeal is allowed and the judgement of the High Court is set aside. There shall be no order as to costs." Mr. Chatterjee also cited another judgement Shiv Kumar Chadha v. Municipal Corporation of Delhi and Others reported in : (1993) 3 SCC 161, a Division Bench judgement of our High Court Axis Bank Ltd. v. MPS Greenery Developers Ltd. reported in : 2010 (3) CHN (CAL) 112, Athmanathaswami Devasthanara v. K. Gopalaswami Ayyangar reported in : AIR 1965 Supreme Court 338, Calcutta Cosmopolitan Club Ltd. v. Bhanwarlal Bhandari & Ors. Reported in : 2005 CWN 1191, and T.K. Lathika v. Seth Karsandas Jamnadas reported in : AIR (1999) 6 SCC 632. These judgements hold that a point of maintainability which of course covers jurisdiction has to be decided by the Court, at the threshold with reasons and only if the Court prima facie comes to the conclusion that the suit is maintainable, it can pass interim orders.
(3.) A substantial question has been raised by Mr. Chatterjee but I am not called upon in this application to answer the question. This is for the simple reason that in the earlier interim applications, entertained by this Court, it was open for the bank to make submissions about dismissal of the suit on the ground that this Court did not have jurisdiction, but there is nothing on record, in the orders or otherwise to show that this point was even raised in Court. The principles of constructive res judicata, applies at the interim stage also. If a point was available and not taken, it is deemed to be refused in the order. This is the principle of constructive res judicata. I would apply this principle at this stage. Although I refuse to entertain the point now, it is open for the bank to take this point at an appropriate stage.;