BELA M.TRIVEDI,J. - (1.) THE present appeal filed under Section 96 of the Civil Procedure Code is directed against the judgment and decree dated 4.9.2010, passed by the learned Additional District and Sessions Judge No. 7, Jaipur City, Jaipur, (hereinafter referred to as ' the Trial Court') in Civil Suit No. 21/2007(154/2007), whereby the Trial Court had rejected the plaint of the appellants(original plaintiffs) under the provisions contained in Order VII Rule 11 of C.P.C. The short facts giving rise to the present appeal are that the appellants -plaintiffs filed the suit against the present respondents -defendants seeking declaration and permanent injunction as prayed for in para 29 of the plaint, in respect of the suit property bearing No. 13 -A -13 -B, situated opposite Laxmi Mandir, Tonk Road, Jaipur. In the said suit the defendant Nos. 4 and 5 submitted an application under Order VII Rule 11 C.P.C. seeking rejection of the plaint on the ground that the suit was barred under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002( for short 'the SARFAESI Act') and also on the ground that the plaintiff had not paid the requisite court fees. The said application was resisted by the appellants/plaintiffs by filing the reply. The trial court after hearing the learned counsels for the parties and considering the averments made in the plaint as well as the documents on record allowed the said application of the respondent Nos. 4 and 5 filed under O. VII Rule 11, rejecting the plaint of the appellants plaintiffs. Being aggrieved by the said judgment and decree, the appellants have preferred the present appeal.
(2.) THE learned counsel Mr. Manish Sharma for the appellants taking the Court to the impugned judgment passed by the trial court vehemently submitted that the trial court had taken into consideration the documents and other contentions raised by the concerned defendants, which were not part of the plaint. According to Mr. Sharma, the trial court could not have considered any other material except the averments made in the plaint, for the purposes of rejecting the plaint under Order VII Rule 11 (d) of the C.P.C. Mr. Sharma has relied upon the decisions of Apex Court in cases of Saleem Bhai and Ors. V. State of Maharashtra and Ors. : (2003) 1 SCC 557, Kamla and Others VS. K.T. Eshwara Sa and Others : 2008 (12) SCC 661 and in case of C. Natrajan VS. Ashim and Another : 2007 (14) SCC 183, in support of his said submission. The learned counsel Mr. Sharma also taking the Court to the averments made in the plaint vehemently submitted that the plaintiffs had asked for the relief against the defendant Nos. 1 to 3 seeking partition of the suit property and also seeking declaration that they had no right to mortgage the said property with the defendant No. 4 Bank and that the relief of injunction was only subsidiary or incidental to the main relief claimed in the suit and, therefore, by no stretch of imagination could it be said that the suit of the plaintiffs was barred by Section 34 of the SARFAESI Act. Placing heavy reliance upon the decision of the Apex Court in the case of Mardia Chemicals Ltd. and Others VS. Union of India and Others : (2004) 4 SCC 311, Mr. Sharma has submitted that the jurisdiction of Civil Court could be invoked when the action of secured creditor was alleged to be fraudulent or its claim was untenable. According to Mr. Sharma the suit property being joint property of the plaintiffs and the defendant Nos. 1 to 3, the said defendants could not have mortgaged the same without the consent of the plaintiffs and hence the defendant Nos. 4 and 5 could not have taken the action in respect of the said property under the provisions contained in 'the SARFAESI Act'. Mr. Sharma has also submitted that the defendant Nos. 4 and 5 had not followed the procedure of affixing the notice for auction sale of the disputed property and thereby had violated the provisions contained in the Rules framed under ' the SARFAESI Act'. Of course Mr. Sharma fairly contended that the plaintiffs had challenged the advertisement dated 9.9.2006 issued by the respondent Nos. 4 and 5 by filing Appeal under Section 17 of 'the SARFAESI Act' before the Debts Recovery Tribunal, seeking cancellation of the auction sale of the suit property and that the said appeal was dismissed by the D.R.T.
(3.) HOWEVER , the learned Senior Counsel Mr. G.k.Garg for the respondent Nos. 4 and 5 strenuously urged that the suit filed by the appellants plaintiffs before the trial court was not only barred under the provisions contained in Section 34 of 'the SARFAESI Act' and Section 18 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993( for short 'the Act of 1993'), the same was sheer misuse of process of law. According to Mr. Garg, the trial court considering all the relevant material on record had allowed the application of the defendants under Order VII Rule 11 and the same does not call for interference of this Court. According to Mr. Garg, appellants have also filed a suit for partition against the present respondent Nos. 1 to 3 and others in respect of the properties including the suit property in the court of Kotputli; which is pending and that the plaintiffs having failed to obtain any relief from the D.R.T. the present suit was filed misusing the process of law. Mr. Garg has also relied upon number of decisions of the Apex Court and other High Courts which will be dealt with, if necessary hereinafter. The learned counsel Mr. Shailesh Prakash Sharma for respondent Nos. 1 to 3 has adopted the arguments of Mr. Garg and submitted that the appeal deserves to be dismissed. No body appears for the respondent No. 6, J.D.A, though duly served.;