Punjab and Sind Bank v. Frontline Corporation

PUNJAB AND SIND BANK v. FRONTLINE CORPORATION LTD. (Civil Appeal No.2924 of 2023) APRIL 18, 2023 [B. R. GAVAI AND ARAVIND KUMAR, JJ.] Securitisation and Reconstruction of Financial Asse ts and Enforcement of Security Interest Act, 2002 – s. 34 – Respondent purchased the suit property wherein the appellant-bank was in ducted as a tenant by the previous owner in the ground floor o f the suit premises – Respondent availed various credit facili ties from the appellant-bank to the tune of Rs.42.74 crore by mortg aging, inter alia, the suit property as collateral – Thereafter, a purported settlement agreement, dated 29.11.2010, filed in the eje ctment suit which was filed earlier by the previous owner, before the City Civil Court and a lease deed dated 11.02.2011 was execute d between the parties – Financial defaults were committed by the re spondent – Demand notice u/s. 13 of the SARFAESI Act was issued by appe llant-bank – Demand remained unmet – Appellant declared tha t it had taken possession of the suit property – Respondent filed securitisation application before the DRT and instituted a suit before the High Court for specific performance of the settlement deed and lease deed – An injunction application was also file d restraining appellant from disposing any part of suit property – I nterim order was passed by the Single Judge of the High Court th at no final orders of sale be passed and this was extended from time to time – Thereafter, the Single Judge set aside the interim order noting therein that the appellant, being a secured creditor, could not be restr ained from taking appropriate steps qua the secured suit property, especially in light of the express bar on the jurisdiction of the civil court, as provided u/s. 34 of the SARFAESI Act – Division B ench set aside the order of the Single Judge and observed that t he bar u/s. 34 of the SARFAESI Act was not absolute and restrained the appellant from selling the suit property until the final dete rmination of the rights of the parties – On appeal, held: It is settled that the jurisdiction of the civil court is barred in respect of matters which a DRT or an Appellate Tribunal is empowered to determine in respect of any action taken “or to be taken in pursuance of any power conferr ed under this Act” – Bar of civil court thus applies to all such m atters which may be taken cognizance of by the DRT, apart from those matters in which measures have already been taken under sub-sec tion (4) of s.13 of the SARFAESI Act – Though a very limited extent ju risdiction of the civil court can also be invoked, where for example , the action of the secured creditor is alleged to be fraudulent or his cl aim may be so absurd and untenable which may not require an y probe whatsoever – In the instant case, it cannot be said that the action of the secured creditor, i.e. the appellant is either fraudule nt or that its claim is so absurd or untenable which may not requi re any probe whatsoever – Single Judge had passed the said order on t he basis of a statutory bar – Division Bench has grossly erred in inte rfering with the discretion exercised by the Single Judge – Thus, the judgment and order passed by the Single Judge uphel d. Allowing the appeal, the Court Held : 1. The Supreme Court has held in Mardia Chemicals Limited and Others v. Union of India and Others that the jurisdiction of the civil court is barred in respect of matters which a DRT or an Appellate Tribunal is empowered to 11 determine in respect of any action taken “or to be taken in pursuance of any power conferred under this Act”. The Court has held that the prohibition covers even matters which may be taken cognizance of by the DRT though no measure in that direction has so far been taken under subsection (4) of Section 13 of the SAR FAESI Act. It has been held that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. It has categorically been held that any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The Cour t held that the bar of civil court thus applies to all such matte rs which may be taken cognizance of by the DRT, apart from those matters in which measures have already been taken under sub-s ection

(4) of Section 13 of the SARFAESI Act. [Para 13][867-A-C]

¶2This Court has further held that, to a very limited e xtent jurisdiction of the civil court can also be invoked , where for example, the action of the secured creditor is alle ged to be fraudulent or his claim may be so absurd and untenable which LTD. may not require any probe whatsoever or to say precisely to t he extent the scope is permissible to bring an action i n the civil court in the cases of English mortgages. [Para 14][867-D]

¶3In the present case, it cannot be said that the action of the secured creditor, i.e. the appellant is either fraudulent or that its claim is so absurd or untenable which may not requ ire any probe whatsoever. It is further to be noted that the S ARFAESI Act itself provides remedies to an aggrieved party in view of the provisions of Sections 17 and 18. [Para 15][867-E-F]

¶4It has been held by this Court in the case of Wander Ltd. and Another v. Antox India P. Ltd that the Appellate Court would not interfere with the exercise of discretion of the cou rt of first instance and substitute its own discretion except w here the discretion has been shown to have been exercised arbitr arily, or capriciously or perversely or where the court had i gnored the settled principles of law regulating grant or refusal of interlocutory injunctions. It has been held that an appeal against exercise of discretion is said to be an appeal on principle. It has further been held that the Appellate Court will not reassess the mate rial and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was re asonably possible on the material. It has been held that if th e discretion has been exercised by the trial court reasonably and in a j udicial manner the fact that the appellate court would have taken a different view may not justify interference with the t rial court’s exercise of discretion. [Para 17][868-F-H]

¶5Undisputedly, in the present case, while vacatin g the interim relief granted vide order dated 15th July 2013, th e Single Judge had held that the relief claimed by the plainti ff could not have been granted in view of the provisions of Section 34 of t he SARFAESI Act. As such, the Single Judge had passed th e said order on the basis of a statutory bar. As observed earlier, the scope in which a civil suit is maintainable as determin ed by this Court in the case of Mardia Chemicals Limited is very limited. The case of the respondent/plaintiff would not come wit hin the said limited scope. The Division Bench has grossly erred in interfering with the discretion exercised by the Si ngle Judge. [Para 18][869-A-C] Mardia Chemicals Limited and Others v. Union of India and Others (2004) 4 SCC 311 : [2004] 3 SCR 982; Wander Ltd. and Another v. Antox India P. Ltd. 1990

(Supp) SCC 727 – relied on. Case Law Reference [2004] 3 SCR 982 relied on Para 12 CIVIL APPELLATE JURISDICTION : Civil Appeal No.2924 of 2023. From the Judgment and Order dated 30.01.2017 of the High Court at Calcutta in APOT No.411 of 2016. Ashim Banerjee, Sr, Adv., Ms. Tina Garg, Adv. for the Appellant. Karan Batura, Adv. for the Respondent. The Judgment of the Court was delivered by

B. R. GAVAI, J.

¶1Leave granted.

¶2The present appeal assails the judgment and order dated 30 th January 2017, passed by the Division Bench of the High C ourt of Judicature at Calcutta (hereinafter referred to as “High Court”) in A.P.O.T. No.411 of 2016, thereby setting aside the order of the Single Judge dated 2nd November 2016, vide which an earlier interim order of the Single Judge dated 15th July 2013, directing the appellant herein to take steps to sell the suit property but not to pass final orders on the sale, had been vacated.

¶3The facts, in brief, giving rise to the present appeal ar e as under:

3.1 The appellant - Punjab & Sind Bank, was inducted as a tenant in the ground floor of premises No.8, Old Court House Street, Kolkata, 700001, now known as 28, Hemant Basu Sarani, Kolkata, 700001 (hereinafter referred to as the “suit property”) in the y ear 1972 by one M/s Bharat Chamber of Commerce. In the year 2003, M/s Bharat Chamber of Commerce preferred an ejectment suit bearin g No. 2 of 2003 against the appellant before the City Civil Court, Calcutta.

3.2 During the pendency of the aforesaid ejectment suit , the respondent - M/s Frontline Corporation Ltd. purchased the suit property LTD. from M/s Bharat Chamber of Commerce, vide sale deed dat ed 17 th February 2005. Thereafter, the respondent availed various credit facilities from the appellant to the tune of Rs.42.74 crore by mortgaging, inter alia, the suit property as collateral.

3.3 Subsequently, in furtherance of the terms of a pu rported settlement agreement, dated 29 th November 2010, filed in the aforementioned ejectment suit before the City Civil Court, Calcutt a, a lease deed dated 11th February 2011 was executed between the parties, thereby demising the suit property in favour of the appellant for a period of 21 years. It is pertinent to note that no consent decree w as actually passed by the City Civil Court, Calcutta.

3.4 Owing to the financial defaults committed by the respondent, the appellant was constrained to classify the credit facilities availed by the respondent as Non-Performing Assets (for short, “NPA”) on 31 st March 2012. Soon afterwards, a demand notice dated 13 th June 2012 was also issued by the appellant under sub-section (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafte r referred as ‘SARFAESI Act’) for recovery of outstanding dues of approximate ly Rs.44.89 crore, with interest, from the respondent. The demand remained unmet, and so the appellant issued a possession notice under sub-section

(4) of Section 13 of the SARFAESI Act, declaring therein that it had taken possession of the suit property.

3.5 Aggrieved thereby, the respondent preferred a securitization application, being S.A. No. 19 of 2013, before the learned Debt Recovery Tribunal-I, Calcutta (for short, “DRT”). Simultaneously, a civil suit, being C.S. No. 217 of 2013, was also instituted before the High Court, inter alia, for specific performance of the purported settlement ag reement entered into between the parties, as well as the consequent lease deed. The respondent claimed therein that, as per the terms of the p urported settlement agreement, the fulfilment of the obligations on part of the appellant, which involved the temporary vacation of the appellant from the suit property so as to enable the respondent to recons truct the suit property and, thereafter, to hand over possession of the ground floor of the suit property back to the appellant, would enable the outstanding dues to be set off and adjusted from the amounts receivable f rom the creation of third party interests in the newly constructed building. An injunction application, being G.A. No. 1884 of 2013, was also moved by the respondent in the suit to restrain the appellant fr om dealing with, disposing of or encumbering any part or portion of the suit property.

3.6 The learned Single Judge, vide interim order dated 15 th July 2013, allowed the aforesaid application and directed that no final orders of sale be passed for a period of 6 weeks. This interi m order was extended from time to time, and lastly vide order dated 2 nd December 2013.

3.7 Contending that the ejectment suit had been dismissed and that the purported settlement agreement had not fructified into a consent decree, the appellant filed an application being G.A. No. 2352 of 2014 for vacating the aforesaid interim order. The Single Judge, v ide order dated 2nd November 2016, set aside the interim order dated 15 th July 2013, noting therein that the appellant, being a secured creditor, could not be restrained from taking appropriate steps qua the secured suit property, especially in light of the express bar on the jurisdiction of the civil court, as provided under Section 34 of the SARFAESI Act. Cost of Rs.5,00,000/- was also imposed on the respondent.

3.8 Being aggrieved thereby, the respondent challenged the aforesaid order before the learned Division Bench of the High Court, in A.P.O.T. No. 411 of 2016, along with an application for stay being G.A. No. 3535 of 2016.

3.9 It is pertinent to note that, in the securitization appli cation preferred by the respondent, the DRT, vide order dated 7th August 2013, refused to proceed further on account of the pendency of the civil s uit before the High Court.

3.10 Vide the impugned judgment dated 30 th January 2017, the learned Division Bench allowed the respondent’s appeal and set as ide the order of the learned Single Judge dated 2 nd November 2016. The Division Bench observed that the bar under Section 34 of the SARFAESI Act was not absolute, and that the appellant, having acted u pon the purported settlement agreement by vacating the suit property and having availed Rs.5,00,000/- as shifting charges from the respondent, would be estopped from repudiating its obligations under the terms of the purported settlement agreement. The Division Bench restrained the appellant from selling the suit property until the final determination of the rights of the parties. As such, the interim order initially passed in the suit, dated 15th July 2013, stood revived and was directed to continue till the disposal of the civil suit. Being aggrieved thereby, the present appeal.

¶4We have heard Shri Ashim Banerjee, learned Senior Counsel appearing on behalf of the appellant and Shri Karan Batura, learned counsel appearing on behalf of the respondent.

¶5Shri Banerjee submitted that the Division Bench has grossly erred in reversing the well-reasoned order passed by the Single Judge. It is submitted that the Single Judge had found the suit to be mischievous and, as such, had refused to grant the discretionary relief unde r Order XXXIX Rules 1 and 2 of the Civil Procedure Code, 1908 (for short, “CPC”). He, therefore, submitted that the impugned judgment and order dated 30th January 2017 deserves to be set aside and the order of the Single Judge dated 2nd November 2016 needs to be restored.

¶6Shri Batura, on the contrary, submitted that the Single Judge, having held that the suit, being for specific performance of the terms of the settlement filed in the eviction suit, was maintainable, could not have vacated the interim relief granted earlier.

¶7Undisputedly, the property in question in respect of which the suit is filed, has been mortgaged with the appellant-Bank. As observed by the Single Judge, the suit as well as the application for interim relief has been cleverly drafted. Though various interim reliefs have b een sought, it will be relevant to refer to Clause (d) of the pray er, which reads thus: “(d) injunction restraining the respondent from in any manner dealing with and/or disposing of and/or encumbering any part or portion of the said premises No. 8, Old Court House Street, Kolkata – 700001.”

¶8It could thus be seen that a blanket injunction restraini ng the respondent, i.e. the appellant herein in any manner dealing with and/or disposing of and/or encumbering any part or portion of the suit property has been sought.

¶9By an ad-interim order dated 15th July 2013, the Single Judge, though permitted the steps to be taken for selling the premises in question, directed that the final orders of sale could not be passed for a period of 6 weeks. The said ad-interim order came to be continued from time to time. As such, the appellant was constrained to file G.A. No. 2352 of 2014 for vacating the said interim order. The same was ultimately vacated by the Single Judge vide order dated 2nd November 2016.

¶10It would be relevant to note that the Single Ju dge has specifically referred to Section 34 of the SARFAESI Act while vacating the interim relief granted to the respondent.

¶11The Division Bench, vide the impugned judgment observed that, since the Bank has taken steps in terms of the purported settlement, it could not repudiate its obligations under the settlement. The Division Bench relied on the Doctrine of Promissory Estoppel for f inding it necessary to restrain the Bank from selling the suit p roperty until determination of the rights of the parties.

¶12The issue as to the exclusion of the jurisdiction of a civil court is no more res integra. The provisions of Section 34 of the SARFAESI Act have been considered by a Bench of three Judges of this Court in the case of Mardia Chemicals Limited and Others v. Union of India and Others1. It will be relevant to refer to the following observations of this Court in the said case: “50. It has also been submitted that an appeal is entertainabl e before the Debts Recovery Tribunal only after such measures as provided in sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debts Recovery Tribunal or the Appellate Tribunal is empowered to determine. Thus before any action or measure is taken under sub-section (4) of Section 13, it is submitted by Mr Salve, one of the counsel for the respondents that there would be no bar t o approach the civil court. Therefore, it cannot be said that no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri Salve is not correct. A full reading of Section 34 shows that the jurisdiction of the civil court is barred in respect of matters which a Debts Recovery Tribunal or an Appell ate Tribunal is empowered to determine in respect of any action taken “or to be taken in pursuance of any power conferred under this Act”. That is to say, the prohibition covers even matters wh ich can be taken cognizance of by the Debts Recovery Tribunal though no measure in that direction has so far been taken under sub - 1 (2004) 4 SCC 311 section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter ma y be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus applies to all such matters which may be taken cognizance of by the Debts Recovery Tribunal, apart from those matters in which measures have already been taken under sub - section (4) of Section 13.

¶51However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely, V. Narasimhachariar [AIR 1955 Mad 135] , AIR at pp. 141 and 144, a judgment of the learned Single Judge where it is observed as follows in para 22: (AIR p. 143) “22. The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations a re twofold in character. The mortgagor can come to the court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought: Adams v. Scott [(1859) 7 WR 213, 249] . I need not point out that this restraint on the exercise of the power of sale will be exercised by courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Ghose, Rashbehary: Law of Mortgages, Vol. II, 4th Edn., p. 784.)””

¶13It could thus be seen that this Court has held that the jurisdiction of the civil court is barred in respect of matters which a DRT or an Appellate Tribunal is empowered to determine in respect of any action taken “or to be taken in pursuance of any power conferred u nder this Act”. The Court has held that the prohibition covers even matters which may be taken cognizance of by the DRT though no measure i n that direction has so far been taken under sub-section (4) of Se ction 13 of the SARFAESI Act. It has been held that the bar of juri sdiction is in respect of a proceeding which matter may be taken to t he Tribunal. It has categorically been held that any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The Court held that the bar of ci vil court thus applies to all such matters which may be taken cognizance of by the DRT, apart from those matters in which measures have already been taken under sub-section (4) of Section 13 of the SARFAESI Act.

¶14This Court has further held that, to a very limited ext ent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or hi s claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages.

¶15In the present case, it cannot be said that the act ion of the secured creditor, i.e. the appellant is either fraudulent or that its claim is so absurd or untenable which may not require any probe whatsoever. It is further to be noted that the SARFAESI Act itself provides remedies to an aggrieved party in view of the provisions of Sections 17 and 18.

¶16We find that the present appeal deserves to be allow ed on another ground also. Undisputedly, the jurisdiction which was exercised by the Division Bench was analogous to the one exercised under Order XLIII Rule 1 of the CPC. It will be relevant to refer to t he following observations of this Court in the case of Wander Ltd. and Another v. Antox India P. Ltd. 2: “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appe als, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except 2 1990 (Supp) SCC 727 where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that cour t was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court w ould have taken a different view may not justify interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.” The appellate judgment does not seem to defer to this principle.”

¶17It has been held by this Court that the Appellate Court would not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion ha s been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law r egulating grant or refusal of interlocutory injunctions. It has been h eld that an appeal against exercise of discretion is said to be an appeal on principle. It has further been held that the Appellate Court will not r eassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was rea sonably possible on the material. It has been held that if the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion.

¶18Undisputedly, in the present case, while vacating the interim relief granted vide order dated 15th July 2013, the Single Judge had held that the relief claimed by the plaintiff could not have been granted in view of the provisions of Section 34 of the SARFAESI Act. As such, the Single Judge had passed the said order on the basis of a sta tutory bar. As observed earlier, the scope in which a civil suit is maintainable as determined by this Court in the case of Mardia Chemicals Limited (supra) is very limited. The case of the respondent/plaintif f would not come within the said limited scope. As such, we are of the considered view that the Division Bench has grossly erred in interferi ng with the discretion exercised by the Single Judge.

¶19In the result, the appeal is allowed. The judgment and ord er dated 30th January 2017 passed by the Division Bench of the High Court is quashed and set aside and the judgment and order passed by t he learned Single Judge is upheld.

¶20Pending application(s), if any, shall stand disposed of. Ankit Gyan Appeal allowed.