Khan, Sagarpara, Old City Dholpur, Distt. Dholpur Raj v. Authorised Officer, Chief Manager, State Bank Of Bikaner And Jaipur, Branch Court

Vakar Ahmed Khan S/o Shri Rasool Khan, Sagarpara, Old City Dholpur, Distt. Dholpur Raj. ----Respondents/Defendants

2. For Appellant(s) : Mr. Raj Kamal Gaur For Respondent(s) : Ms. Sonal Singh HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment Date of Judgment :: 30/07/2025 The civil second appeal has been filed by the appellants- plaintiffs (for short ‘the plaintiffs’) against the judgment dated

20.01.2012 passed by Additional District Judge, Dholpur (for short ‘the first appellate Court’) in civil misc. appeal No. 10/11 whereby the first appellate Court dismissed the appeal filed by the plaintiffs and affirmed the order dated 01.04.2008 passed by the Civil Judge (J.D.), Dholpur in civil suit No.01/07 by which the trial Court allowed the application filed by the respondent No.1-defendant No.1 (for short ‘the defendant No.1’) under Order 7 Rule 11 CPC and rejecting the plaint filed by the plaintiffs. Brief facts of the case are that the plaintiffs filed a suit against the respondents for permanent and mandatory injunction. [2025:RJ-JP:28223] (2 of 4) [CSA-119/2012] The defendant No.1 filed an application under Order 7 Rule 11 CPC on the ground that suit filed by the plaintiffs was barred by law because by way of the suit, plaintiffs wanted to challenge the proceedings initiated against them under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’). Learned trial Court vide order dated 01.04.2008 rejected the plaint filed by the plaintiffs being barred by law. Plaintiffs challenged the order dated 01.04.2008 passed by the trial Court before the first appellate court and the first appellate court vide judgment dated 20.01.2012 dismissed the appeal filed by the plaintiffs. Learned counsel for the plaintiffs submits that although the trial Court while rejecting the plaint filed by the plaintiffs mentioned that whether Rasool Khan who had given the security and mortgaged the disputed property had died before taking the loan or not, is a matter of evidence but the trial Court vide order dated 01.04.2008 rejected the plaint filed by the plaintiffs. Learned counsel for the plaintiffs further submits that defendant No.1- Bank had also lodged an FIR against the plaintiffs and defendant No.2 to the effect that by way of forged documents, mortgage deed was exhibited and loan was taken by defendant No.2 in the year 2003 by impersonating someone as Rasool Khan. Rasool Khan neither executed any loan document nor took any loan as he had died in the year 2000. He further submits that the plaintiffs have filed an application under Order 41 Rule 27 CPC for taking copy of the FIR on record. He further submits that the proceedings under the SARFAESI Act cannot be initiated and [2025:RJ-JP:28223] (3 of 4) [CSA-119/2012] disputed property cannot be taken into possession. So, the order passed passed by the trial Court as well as the judgment passed by the first appellate Court deserves to be set aside and the appeal be admitted on the substantial questions of law as framed in the memo of appeal. Learned counsel for the plaintiffs has placed reliance upon the judgment delivered by the Hon’ble Supreme Court in the case of ‘Mardia Chemicals Ltd. Vs. Union of India’, reported in AIR 2004 SC 2371. Learned counsel for the defendant No.1 opposed the arguments advanced by counsel for the plaintiffs and submitted that the plaintiffs as well as defendant No.2 are sons of Rasool Khan and on account of conspiracy, they had taken loan from the defendant No.1-Bank in the year 2003 and mortgaged the disputed property in favour of the defendant No.1. Plaintiffs as well as defendant No.2 knew the fact that Rasool Khan is not alive but by impersonating someone, defendant No.2 had taken the loan and mortgaged the property of Rasool Khan who is father of the plaintiffs as well as defendant No.2. So, the plaintiffs had a right to challenge the proceedings initiated under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal. Section 34 of SARFAESI Act bars the civil court for entertaining the suit. So, the trial Court as well as the first appellate Court have not committed any error in dismissing the suit as also the appeal filed by the plaintiffs being barred by law. So, the present appeal deserves to be dismissed as no substantial question of law is made out for admitting the appeal. [2025:RJ-JP:28223] (4 of 4) [CSA-119/2012] Learned counsel for the defendant No.1 has placed reliance upon the judgment passed by this Court in the case of ‘The Bharatpur Urban Cooperative Bank Ltd. Vs. Smt. Vimla Devi and Ors.’ in SB Civil Revision Petition No. 282/2024 decided on

10.07.2025. I have considered the arguments advanced by counsel for the plaintiffs as well as counsel for the defendant No.1. It is an admitted position that defendant No.2 had taken the loan from defendant No.1 by mortgaging the disputed property of Rasool Khan. As per the contention of the plaintiffs, Rasool Khan expired in the year 2000, so, he cannot execute the mortgage deed in the year 2003. It is also an admitted position that the plaintiffs as well as defendant No. 2 are the sons of deceased Rasool Khan. Property of deceased Rasool Khan was mortgaged as a security for the loan taken by defendant No.2 from defendant No.1. As per Section 17 of the SARFAESI Act, plaintiffs had right to defend their case before the Debt Recovery Tribunal. Section 34 of the SARFAESI Act bars the civil court for entertaining the suit. So, in my considered opinion, the trial Court as well as the first appellate Court have not committed any error in dismissing the suit as also the appeal filed by the plaintiffs being barred by law. So, no substantial question of law is made out for admitting the present appeal. Therefore, the present appeal being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. Pending application(s), if any, stand(s) disposed of. Ritu/52 (NARENDRA SINGH DHADDHA),J