Matter pertaining to drt for possession notice u/s 13(4) of sarfasi act
Advocate M J
(Querist) 17 May 2014
This query is : Resolved
Respected learned members,
My client who is a retired school teacher has taken a HL from a pvt financial institution for which he has received notice U/s 13(2) of SARFASI Act, inspite of he paying his EMIs regularly, for which an IR was filed in DRT. Thereafter again he received possession notice U/s 13(4) which was challenged by him in DRT. After which the DRT has issued orders to the financial institution not to take the physical position of the property till the next hearing date. The institutional's lawyer till date has still not filed any objections.
In the meanwhile the financial institution has sent their team to lock the house. Immediately the case was advanced and a contempt of Court has been filed in DRT. Looking to the DRT's attitude the DRT is fulling supporting the financial institution and has kept mum over the contempt of Court case. Due to this particular reason if the house of my client is locked my client's full family will go on road, hence I am planning to approach the civil Court for getting an injunction against the financial institution not to take the physical position of his home. If this method is correct to take an injunction from the civil Court under which rule / order of CPC I should approach the civil Court, please advise me how to file the case in civil court and what are the documents to be enclosed. Please help my client and save him and his family from going on the road without shelter.
Thanking you,
Yours faithfully,
Mary Joan
ROHIT SHARMA
(Expert) 17 May 2014
1. You need to file a civil suit under Order 39 Rule 1 of the C.P.C. before the District Civil judge seeking injections to restrain the bank from infringing your fundamental rights under Article 21 of the C.O.I.
2. The balance of continence should be shown to be in your favor.
Deekshitulu.V.S.R
(Expert) 18 May 2014
I donot agree with Mr Sharma. You are stating that it is a private financial institution in which event the DRT is not applicable. I feel it must be a Bank. when the matter is pending before the DRT, you cannot approach a civil court for any injunction. This was made clear by the S.C and also many high courts. If you need some decisions mail to ditty33379@rediffmail.com
K.K.Ganguly
(Expert) 18 May 2014
1. No Civil Court has jurisdiction to try the matter which is to be heard by the DRT,
2. You should have filed a petition before the DRT specifically praying for returning the physical possession which was taken illegally by the Bank against the order of the DRT,
3. However, when you are not satisfied with any DRT order, you can appeal before the DRAT against that bparticular order praying for relief & in case you are not satisfied with the order of DRAT, you can approach the High Court.
T. Kalaiselvan, Advocate
(Expert) 18 May 2014
As rightly advised by expert advocate Mr. Ganguly, you may approach DRAT or high court for further relief on this aspect, civil court has no jurisdiction to interfere with the DRT matter.
ROHIT SHARMA
(Expert) 19 May 2014
1. I revise my earlier reply and agree with the views expressed by expert K.K. Ganguly.
Adv.Aiyer VLV
(Expert) 30 July 2014
Dear Adv. MJ
I do agree with seniors' opinion. a differential approach is discussed by me.
Contempt proceedings are for preserving honour of judicial forum. it will not give you relief.
Under SARFASI the financial institution's proceedings and relief are discussed in the well written blog. you may refer to this.http://drtsarfaesi.blogspot.in/2012/07/considering-value-of-asset-in-sarfaesi.html?m=1
Once an order is in question before one judicial forum, proceeding on the same before another forum Chinook civil court or others is barred by res Judicata. Writ remedy is considered by HC on 13(4) stage if there is procedural irregularity and urgency.
thanks and regards
Parthasarathi Loganathan
(Expert) 22 October 2015
Yes provisions under both SARFAESI Act and RDDBFI Act bars interference of civil courts into DRT matters
