- (1.) The point emerged for consideration in this revisional application is to whether the jurisdiction of the Civil Court is barred under Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (In short SARFAESI). The challenge is made to an order no. 9 dated February 9, 2015 passed by Civil Judge (Junior Division), Siliguri in Title Suit No. 103 of 2014 rejecting an application under Order 7 Rule 11 of the Code.
(2.) The aforesaid suit is filed by the plaintiff/opposite party for declaration of their ownership in respect of the suit property, with further declaration that the defendant no.3 & 4, the petitioner herein, have no right to take possession thereof by ousting her and have no right to sale the suit property to a third party for realization the loan amount and permanent injunction restraining the petitioners from entering into the suit property and also from disturbing the peaceful possession of the plaintiff/opposite party no.1.
(3.) The facts emanate from the plaint are that one Mr. Mani Kumar Gurung inherited the suit property from his father late Dhan Bahadur Gurung who purchased the same through a registered deed bearing no. 2881 for the year 1983. The said owner showed his intention to sale the said property and expressed such desire to the plaintiff/opposite party no.1. It was conveyed to her that the property is neither mortgaged nor under charge and hypothecation but could not hand over the original title deed as the same had been misplaced. Subsequently, it was disclosed that the said property was mortgaged with the Central Bank of India, Bagdogra Branch but after the payment of the entire loan, it is free from any encumbrances. The said owner further handed over the photocopy of the no encumbrances certificate issued by the learned Advocate and in good faith, she agreed to purchase the suit property for a consideration of Rs. 4,50,000/-. Subsequently a deed of sale was executed by the said owner and the clearance certificate issued by the Central Bank of India, Bagdogra Branch was also handed over to her. It is further averred that simultaneously with the execution of the deed, the possession of the suit premises was also handed over by the erstwhile owner. Later on, it transpired that the said property was also mortgaged with the State Bank of India, Mangaldeep Branch, Siliguri when a notice under Section 13 (2) of the SARFAESI Act was issued. The said fact was brought to the notice of the erstwhile owner who cleared the entire loan amount and handed over the original deed which was kept with the said bank to her. The plaintiff/opposite party no.1 further received a notice under Section 13 (2) of the SARFAESI Act issued by the United Bank of India, Darjeeling Branch and was surprised to know that the said property was also mortgaged with the said bank for the loan obtained by the erstwhile owner. The erstwhile owner again repaid the loan of the United Bank of India, who, thereafter, did not pursue any further. In the last week of March, 2014, a further notice under Section 13(2) of the SARFAESI Act issued by the petitioners addressed to the erstwhile owner and one Sanjoy Gurung brings the notice of the plaintiff/opposite party no.1 that the said property was further mortgaged for securing a loan. Despite several attempts, the erstwhile owner could not be traced so that the demand of the petitioners could be met by them. Since the erstwhile owner suppressed those facts and misrepresentative that the property is free from any encumbrances have practiced fraud upon the plaintiff/opposite party no.1 and being a bonafide purchaser for value without notice his property cannot be sold by the petitioners taking measures under the SARFAESI Act.;