IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA

AND

THE HON’BLE JUSTICE SUPRATIM BHATTACHARYA

F.M.A.T 493 of 2025

IA No. CAN 2 of 2025

BOON REALTORS PRIVATE LIMITED

VS.

JULIEN EDUCATIONAL TRUST AND OTHERS

For the appellant : Mr. Joydip Kar, Sr. Adv.

Mr. Rahul Das,

Mr. Amit Kr. Nag

Mr. Partha Banerjee,

Ms. Rishita Sarkar

For the respondent No. 1 : Mr. Surajit Nath Mitra, Sr. Adv.

Mr. Shameek Ray

Mr. Abir Lal Ghosh

Mr. Aritra Pal

For the respondent No. 2 &3 : Mr. Shubham Gupta,

Mr. Siddhany Makkar

Mr. Rajsekhar Bal Bakshi

Heard on : April 07, 2026 and April 08, 2026

Judgment delivered on : June 09, 2026

SABYASACHI BHATTACHARYYA, J.

1. The present appeal has been preferred against an order dated July 19, 2025

passed in Title Suit No.744 of 2025, by which the temporary injunction

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application of the plaintiff/respondent no.1 was disposed of by directing the

defendants (the present appellant being defendant no. 3) to maintain status

quo with regard to the nature, character, possession and alienation of the suit

property till disposal of the suit.

2. Learned senior counsel appearing for the appellant submits that the

plaintiff/respondent no.1 claims title and possession in respect of the suit

property by dint of a purported tenancy agreement dated January 04, 2016

created in its favour by the original owners. However, prior thereto, the suit

property was auction-sold to the appellant under the provisions of the

Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Act”) in

view of the borrowers/original owners‟ account having turned NPA (Non

Performing Asset) and the said borrowers having failed to repay the loan of the

defendant no.1/Bank. The plaintiff/respondent no.1 as well as the defendant

no.3/appellant participated in the auction sale and the appellant came out

successful. A sale certificate pursuant thereto was issued in favour of the

appellant on June 30, 2021 and a formal sale deed executed on October 08,

2021. The account of the borrowers, being three private companies, namely

Mehul Overseas Private Limited, Kundan Investment Private Limited and

Prime Global Private Limited, had turned NPA on March 31, 20 11. Notice

under Section 13(2) of the SARFAESI Act was issued to the borrowers/original

owners on May 13, 2011 and notice of possession under Section 13(4) of the

said Act on July 18, 2011.

3. Thus, it is contended that the purported tenancy created in favour of the

plaintiff/respondent no.1 by the borrowers subsequent to the notice under

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Section 13(2), was bad in law, being violative of the specific bar under Section

13(13) of the SARFAESI Act. Hence, the said tenancy was void ab initio and

could not confer any right, title and interest on the plaintiff.

4. It is next argued by the appellant that the respondent no.1 admits having

started using the suit property only since September, 2023. Such admission

is borne out by a letter dated November 06, 2023 issued by the respondent

no.1 to the appellant, which was a part of the materials before the Trial Court.

Hence, the plaintiff‟s claim to have been in possession of the suit property

since inception of the purported tenancy in 2016 and/or prior to the sale in

favour of the appellant in 2021 is self-contradictory.

5. The above position, it is argued, is further corroborated by the fact that the

defendant no.3/appellant had issued a letter to the plaintiff/respondent no.1

on October, 2023 alleging that the respondent no. 1-School, through its

students, was trespassing into the property. Hence, the plaintiff was not in

possession of the suit property at any point of time.

6. Learned senior counsel appearing for the appellant further argues that

Appendix IV-A of the Security Interest (Enforcement) Rules, 2002, (hereinafter

referred to as “the 2002 Rules”), provides the format of the sale notice for sale

of immovable properties under Rule 8(6) thereof. The expression “as is where

is” in the sale notice was in terms of the said format and inserted therein in

regular course of affairs under the Rules.

7. However, even going by the expression, at th e juncture when the sale

certificate was issued, the respondent no.1 was admittedly not in possession

of the suit property. Hence, there was no „encumbrance‟ on the suit property

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at the relevant juncture, neither any possession of the plaintiff/respondent

no.1, on the date of purchase by the appellant.

8. Learned senior counsel appearing for the defendant no. 3 /appellant next

submits that no declaration or permanent injunction regarding po ssession

has been sought in the reliefs of the plaint of the suit filed by the respondent

no. 1. On the contrary, the appellant‟s prior suit incorporated such relief.

Initially, ad interim order being refused in the appellant‟s suit, a

Miscellaneous Appeal was filed, in which an order of injunction protecting the

appellant‟s possession in respect of the suit property was passed on November

12, 2024. Thus, the impugned order of status quo is contrary to and in the

teeth of such prior injunction obtained by the appellant.

9. Learned senior counsel points out the contradictory plea taken by the

plaintiff/respondent no.1 as to „irrevocable licence‟ in the prior suit of the

appellant, as recorded in its order by the appellate court in the Miscellaneous

Appeal filed by the appellant, on the one hand, and on the other, that of

„permanent tenancy‟ in the present lis. Hence, it is argued that no prima facie

case was made out by the plaintiff/respondent no1.

10. Lastly, learned senior counsel for the defendant no.3/appellant places

reliance on the exclusion of the jurisdiction of Civil Courts under Section 34

of the SARFAESI Act and argues that the reliefs sought by the respondent

no.1 in the present suit are squarely debarred under the said provision, since

similar reliefs could be granted by the Debts Recovery Tribunal. The remedy

for the plaintiff/respondent no.1, thus, lay before the Tribunal and not before

the Civil Court. Since the suit is barred ex facie, it is argued the interim order

of injunction could not have been passed.

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11. In reply, learned senior counsel appearing for the plaintiff/respondent no.1

contends that the defendant no.3/appellant never had physical possession of

the suit property; rather, it was all along aware the plaintiff‟s tenancy and

possession in respect thereof.

12. In support of such contention, learned senior counsel places reliance on the

sale notice, pursuant to which the property was purchased by the appellant,

which specifically mentioned that the subject property was “tenanted” and

under “symbolic” possession of the Bank.

13. Furthermore, in the sale deed of the appellant, the expressions “as is where

is” and “deemed possession”, etc., were used, which clearly indicated that the

property was being sold subject to the tenancy and possession of the

plaintiff/respondent no.1. Furthermore, in the sale deed formally executed in

favour of the appellant, it was categorically mentioned that the purchaser

shall not claim any right of occupancy and possessory rights in respect of the

secured assets, thus precluding the appellant from claiming any such

possession in respect of the suit property.

14. Learned senior counsel appearing for the respondent no.1 next submits that

whereas the appellant has pleaded that it took possession pursuant to the

“sale certificate” which preceded the sale deed, the sale deed itself says that

“deemed possession” was given to the appellant, further mentioning that the

property was a “vacant property”. Apart from such patent contradiction, no

document was produced at any point of time by the appellant to establish

that actual physical possession of the property was ever handed over either to

the Bank or to the appellant. Thus, the claim of possession made by the

appellant is baseless.

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15. Thirdly, learned senior counsel for the plaintiff/respondent no.1 contends

that the reliefs in its suit cannot be granted by the Debts Recovery Tribunal

but only by a regular Civil Court. Hence, Section 34 of the SARFAESI Act does

not operate as a bar to the suit. It is contended that the scope of the suit and

the reliefs which can be claimed before the Debts Recovery Tribunal operate

in different spheres.

16. Learned senior counsel next argues that there cannot be a mini-trial at the

injunction stage and the appellant‟s bid to argue the merits of the suit itself

cannot be permitted at the juncture of disposal of the injunction application.

17. Insofar as the alleged bar of Section 13(13) of the SARFAESI Act is concerned,

learned senior counsel for the plaintiff/respondent no.1 argues that there are

no pleadings or materials on record to show that the notice of possession

under Section 13(4) of the said Act was given within the knowledge of the

plaintiff/respondent no.1 or that the notice under Section 13(2) was served on

the borrowers/owners, who granted tenancy in favour of the plaintiff.

18. Alternatively, it is argued by respondent no.1 that even if it is assumed

(without admitting) that respondent no.1 is a trespasser to the suit property,

still, even a trespasser cannot be evicted without due process of law, and as

such, is entitled to injunction.

19. Lastly, learned senior counsel appearing for the responded no.1 argues that

there is a clear contravention of the 2002 Rules inasmuch as the sale

certificate in favour of the appellant is not as per the form provided in

Appendix V of the said Rules. The term “as is where is”, as required by the

said format, is absent in the sale certificate or the sale notice, although

mentioned in the subsequent sale deed. Moreover, the provisions of Rule 9,

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sub-Rules (7) and (9) of the 2002 Rules, pertaining to payment of money to

discharge and remove encumbrances, have not been complied with. There is

no pleading or proof on such counts, it is submitted.

20. Thus, the plaintiff/respondent no.1 supports the impugned order.

21. Upon hearing learned senior counsel appearing for both the parties, the

Courts\ comes to the following conclusions:

Right, Title and Interest

22. The moot contention raised by the appellant is that the tenancy agreement

executed in favour of the plaintiff/respondent no.1 is vitiated due to the

contravention of Section 13(13) of the SARFAESI Act.

23. An examination of the said provision would be useful in the context and the

same is set out below:

“13. Enforcement of security interest

… … …

(13) No borrower shall, after receipt of notice referred to in sub-

Section (2), transfer by way of sale, lease or otherwise (other than in

the ordinary course of his business) any of his secured assets

referred to in the notice, without prior written consent of the secured

creditor.”

24. In the present case, the notice under Section 13(2) was issued on May 13,

2011 and the notice of possession under Section 13(4) on July 18, 2011. On

the other hand, the tenancy in favour of the plaintiff/respondent no.1 was

entered into on January 04, 2016, that is, much after the notice under

Section 13(2). The language of Section 13(13) is couched negatively, thereby

precluding any transfer, including sale, lease or otherwise, from being effected

in any way with regard to the secured assets referred to in the Section 13(2)

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notice after issuance of the same without prior written consent of the secured

creditors. No case has been made out by the plaintiff/respondent no.1 as to

any written consent having been taken from the secured creditor/Bank.

Hence, having been executed admittedly post the Section 13(2) notice in the

teeth of the said bar, the tenancy is a nullity and no title passed through the

same in favour of the respondent no.1.

25. The respondent no.1 argues that there is no material on record to show that

the said notice was given within its knowledge or that the notice under

Section 13(2) was served on the borrowers. However, having claimed through

the borrowers and having acquired no title through such transfer, the

respondent no.1 does not even have any locus standi to raise any question as

to the propriety of such notice, particularly after the same culminated in a

valid sale certificate being issued and a consequential sale deed being

executed in favour of the appellant.

26. Moreover, the law does not require service of notice under Section 13(2) or

Section 13(4) of the SARFAESI Act on anyone else but the borrowers. That

apart, at the juncture when the sale notice was issued, admittedly the

respondent no.1 was not even in possession of the suit property, having only

entered into the same as per its own letter in the month of September, 2023.

Thus, neither any title nor possession passed in favour of the respondent no.1

by dint of the purported tenancy agreement. Hence, the plaintiff has failed to

make out any prima facie case of having right, title or interest in the suit

property.

27. With regard to the title of the appellant, as per law, upon issuance of the sale

certificate, the rights of the purchaser/appellant became conclusive, which

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was further consolidated by formal execution of a sale deed in its favour on

October 08, 2021. The respondent no.1 contends that even a trespasser is

entitled to due process of law being followed before being evicted.

28. However, under the scheme of the SARFAESI Act, due process is followed if

the measures under Section 13 of the said Act, read with the corresponding

Rules, are duly complied with, which were done in the present case.

29. Secondly, although even a trespasser is to be evicted by due process of law,

the converse principle is not true, that is, a trespasser is not entitled to

maintain a suit or seek injunction against the true owner. Since the present

suit has been filed by the plaintiff/respondent no1, whose tenancy agreement

was prima facie a nullity, the plea of “due process of law” is not available to

the plaintiff/respondent no.1 on such count as well.

30. The respondent no.1 seeks to argue that its so-called tenancy was recognized

in the sale notice, where it was mentioned that the secu red assets were

“tenanted” and under “symbolic possession” of the Bank. However, such

argument is misplaced in view of the facts borne out by the order passed in

appeal from the previous suit filed by the appellant. In the said order dated

November 12, 2024, it was categorically recorded that one Ankit Aggarwal and

one Ashok Aggarwal had instituted a suit bearing Title Suit No.2047 of 2021

before the Fourth Court of Civil Judge (Junior Division), claiming to be

tenants in respect of one covered parking space of 300 sq.fts and open space

measuring 300 sq.fts, totalling more or less 600 sq.fts, in respect of which

they had got an order of status quo against the appellant, which property was

described as a “B” scheduled property. Furthermore, upon deducting the “B”

scheduled property from “A‟ scheduled property, Ankit and Ashok did not

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have any interest in the remaining “C” schedule property but were trying to

interfere with the right, title and interest of the appellant therein. Accordingly,

the appellant, it was recorded in the order, instituted Title Suit No.1907 of

2022 before the same court, in connection with which Miscellaneous Appeal

No. 416 of 2022 was filed, in which, vide order dated December 17, 2022, the

learned District Judge at Alipore had granted an interim order of injunction

restraining the said Ankit and Ashok from disturbing the peaceful possession

of the appellant in respect of the “C” scheduled property.

31. Also, in the plaint of the earlier suit filed by the appellant, it was pleaded,

inter alia, that subsequently one Mahesh Singhania filed a suit bearing Title

Suit No. 849 of 2023 before the Fourth Court of Civil Judge (Junior Division)

at Alipore, also claiming to have tenancy right in respect of part of the „A‟

Schedule property therein, which overlaps with the present suit property.

Such suit, it was pleaded, is still pending although there was no subsisting

interim order therein.

32. Thus, the “tenants” referred to in the sale notice were the said Mahesh

Singhania and/or Ankit and Ashok Aggarwal, and not the present respondent

no.1. As such, at no point of time was the alleged tenancy of the respondent

no.1 recognized by the Bank or the appellant.

33. The expressions “as is where is” and the like used in the sale certificate and

sale deed of the appellant do not come to the aid of the plaintiff/respondent

no.1 in any manner, in the absence of the respondent no.1 having been able

to establish either its tenancy or possession with regard to the suit property.

34. Much reliance has been placed by learned senior counsel for respondent no.1

on Clause 3 of the sale deed of the appellant, where the secured

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creditor/vendor-Bank declared that the premises -in-question was being

transferred in favour of the purchaser/vendee on “as is where is” and “as is

what is basis” “whatever there is” and as such the purchaser/vendee “shall

not claim any right of occupancy, possessory in respect of the said secured

assets” in future.

35. However, the said clause cannot be read in isolation and has to be read in

conjunction with the rest of the sale deed as well as in the light of the sale

certificate issued in favour of the appellant.

36. In the sale certificate, it was categorically mentioned that the possession of

the schedule property was being handed over to the purchaser/appellant and

that such sale was made “free from all encumbrances known to the secured

creditors”.

37. Again, in Clause (j) of the recital of the sale deed, it was categorically stated

that the secured creditor/vendor had handed over deemed possession of the

secured assets to the purchaser. It is only in such context that Clause 3 of the

habendum clause enumerated that the purchaser shall not claim any right of

occupancy in future, obviously referring to the fact that since possession had

already been handed over to the purchaser/appellant, no further claim on

such count would lie at the behest of the appellant against the vendor/Bank.

38. Even otherwise, it would be a ridiculous proposition to suggest that after

going through the trouble of participating in the e-auction sale and having

invested a considerable amount of money as consideration for the sale, the

purchaser would only get notional rights in the property without having any

right to possess the same. If such a construction is lent to the relevant

clauses of the sale deed, it would denude the sale of its very character as a

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transfer of title. Thus, the said argument of the plaintiff/respondent no.1 on

such score is entirely misplaced.

39. Hence, this issue is decided in favour of the appellant and against the

respondent no.1.

Possession

40. A striking feature of the present case is that in the plaint itself, the

plaintiff/respondent no.1 has not sought any prohibitory injunction decree to

protect its possession. The Court is aware of the principle that even if a

particular species of injunction is not claimed in the suit, a temporary

injunction application may be made seeking such injunction, if it is in aid of

the main relief sought in the suit. However, in the temporary injunction

application as well, on the basis of which the impugned order was passed, no

injunction in respect of possession was sought by the plaintiff/respondent

no.1 at all.

41. It is well-settled that a Court cannot grant reliefs beyond the prayers made in

an injunction application, unless the same is a lesser relief, in which case, the

court can mould the original relief and grant subservient reliefs.

42. However, injunction regarding possession is a separate relief altogether than

the reliefs sought in the suit. In its plaint and injunction application, the

plaintiff/respondent no.1 specifically asked for injunction restraining the

defendant no.2, that is, the authorised officer of the Indian Overseas Bank,

from claiming any right, title and interest of the suit property based on the

sale certificate and deed of sale issued in favour of the appellant.

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43. Such prayer was modified to an extent in the temporary injunction, where

similar injunction was sought in respect of all the defendants, along with

temporary injunction restraining the defendants, their men, agents, servants

or assigns from changing the nature and character of the suit property. Thus,

in the absence of any such prayer in the injunction application, the learned

Trial Judge acted beyond her jurisdiction in granting status quo in respect of

possession.

44. Secondly, in its letter dated November 06, 2023 issued to the appellant, the

plaintiff/respondent no.1 had categorically claimed that only in the month of

September, 2023, the respondent no.1 could “beneficially use and utilize” the

suit premises. The same is also corroborated by a contemporaneous letter of

the appellant/respondent no.1 dated October 30, 2023, alleging that some

students of the respondent no.1 school had entered into the suit property and

had been playing and doing other co-curricular activities and that some other

persons were illegally trying to lease out the suit property based on false and

fabricated documents.

45. Conspicuously, even as per the claim of the plaintiff itself, it is not a right of

„possession‟ (which has to have an element of continuity) which is being

claimed by it, but a mere right of „user‟, which is intermittent in nature. The

plaintiff alleges that its student play and guardians wait at the suit premises,

which obviously has to be during the school hours. Such sporadic and

intermittent/occasional user of the premises for specific purposes cannot

tantamount to having “physical possession” of the property.

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46. With regard to possession in respect of a vacant plot of land, in the absence of

any structure which can be put under lock and key, even symbolic possession

may tantamount to physical possession.

47. This, coupled with the fact that no possessory injunction has been sought at

all in the suit or the temporary injunction application filed by the respondent

no.1, whereas there was already a subsisting order of injunction in the

miscellaneous appeal preferred in the appellant‟s prior suit restraining the

respondent no.1 from disturbing the appellant‟s possession, there cannot be

manner of doubt that the plaintiff/respondent no.1 was never in physical

possession of the suit property.

48. On the other hand, the sale deed and the sale certificate issued in favour of

the defendant no.3/appellant clearly show that possession has been handed

over to the appellant.

49. Although it was stated to be “deemed possession” in certain places of the

aforementioned documents, as discussed earlier, in respect of a vacant plot of

land and in the absence of physical possession having been established by the

respondent no.1, such deemed possession pursuant to a sale deed has to be

construed equivalent to the physical possession of the appellant.

50. Insofar as the minor discrepancy in the format of the sale notice is concerned,

it is trite law that procedure is a handmaid of justice and such minor

irregularity, even if any, cannot vitiate the sale transaction itself, which has

already attained finality in law. That apart, the borrowers, at best, could raise

such question. They having not done so, the respondent no.1, claiming

through them, cannot urge the issue.

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51. Moreover, the pleadings of the plaintiff are contradictory, having claimed

“irrevocable licence” in the earlier suit of the appellant but “permanent

tenancy‟ in the present suit.

52. The expressions “as is where is” etc. in the sale certificate and the sale deed of

the appellant have to be read in the context of the then prevalent

circumstances. There was no tenancy in favour of the plaintiff/respondent

no.1 in the eye of law in the teeth of Section 13(13) of SARFEASI Act bar. Also,

the plaint case of the respondent no.1 restricts its alleged rights merely to

that of a user on intermittent occasions during school hours by virtue of its

students playing on the said property and the guardians allegedly waiting for

their wards during school hours, which cannot be elevated to the plane of

actual physical possession, which has to be continuous in character.

53. Even in its plaint, the respondent no.1 had not categorically claimed any relief

to protect is alleged possession. Again, admittedly, it entered into possession

in September 2023 (that is, much after the sale certificate, sale deed, and

handing over of possession in favour of the appellant) and not

contemporaneously with the creation of its purported tenancy in the year

2016, which strengthens the allegation of the appellants that there was

forcible attempt on the part of the respondent to use the suit property in the

month of October, 2023.

54. Hence, insofar as possession is concerned, the suit property being a vacant

land, and in the absence of any continuous physical possession being

established or pleaded by the plaintiff/respondent no.1, the symbolic

possession handed over to the appellant at the time of sale in its favour was

sufficient to clothe the appellant with possessory right in the property.

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55. Thus, on the basis of the materials on record, this Court comes to the finding

that it is the appellant which in possession of the suit property and not the

plaintiff/respondent no.1.

Maintainability of suit

56. In order to adjudicate this issue, the reliefs claimed in the suit filed by the

respondent no.1 are to be looked into. Those are as follows:

a. A decree declaring that the Sale Certificate dated 30th June, 2021 issued by

Defendant No. 1 in favour of Defendant No. 2 and the registered Deed of Sale

dated 8th October, 2021 are illegal, void, non-est and of no legal effect;

b. A decree for delivery up and cancellation of the said Sale Certificate and

registered Sale Deed;

c. A decree of permanent injunction restraining Defendant No.2 from claiming

any right, title or interest in the suit property based on the said documents;

d. Costs of the suit;

e. Injunction;

f. Receiver;

g. For such further or other reliefs as this Hon’ble Court may deem fit and

proper.

57. Contrary to the arguments of learned senior counsel for the respondent no.1,

there is not a single prayer in the plaint which is not covered by the measures

contemplated under Section 13 of the SARFEASI Act and the corresponding

Rules. No independent declaration of title has been sought at all, but a

declaratory relief has been claimed by the plaintiff/respondent no.1 assailing

the sale certificate dated June 30, 2021 issued by the defendant no.1/Bank

in favour of the appellant as well as the registered sale deed dated October 08,

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2021. Consequential reliefs have also been sought for delivery up and

cancellation of the sale certificate and the registered sale deed as well as

permanent injunction restraining the appellant from claiming any right, title

or interest in the suit property based on the said documents.

58. A bare perusal of the Section 13 of the SARFAESI Act and its sub-sections

would indicate that the sale of property, issuance of sale certificate and

execution of sale deed, as undertaken by the Bank in favour of the appellant

in terms of Section 13, are precisely what have been challenged in the suit.

All the aforesaid documents are the culmination of the measures taken under

Section 13 of the SARFAESI Act by the creditor bank in favour of the

appellant.

59. Section 34 of the SARFAESI Act is quoted below:

“34. Civil court not to have jurisdiction.—No civil court shall have

jurisdiction to entertain any suit or proceeding in respect of any matter

which a Debts Recovery Tribunal or the Appellate Tribunal is empowered

by or under this Act to determine and no injunction shall be granted by

any court or other authority in respect of any action taken or to be taken

in pursuance of any power conferred by or under this Act or under the

Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51

of 1993).”

60. Even a plain reading of the said provision indicates that the jurisdiction of the

civil court is barred in respect of any suit or proceeding in respect of any

matter which the Debts Recovery Tribunal or the Appellate Tribunal is

empowered by or under the SARFAESI Act to determine.

61. Section 17 (1) of the SARFAESI Act, which enumerates the powers of the

Tribunal, reads as follows:-

“17. Application against measures to recover secured debts .—(1)

Any person (including borrower), aggrieved by any of the measures

referred to in sub-Section (4) of Section 13 taken by the secured creditor

or his authorised officer under this Chapter,[may make an application

along with such fee, as may be prescribed,] to the Debts Recovery

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Tribunal having jurisdiction in the matter within forty five days from the

date on which such measure had been taken;

Provided that different fees may be prescribed for making the application

by the borrower and the person other than the borrower.

[Explanation.—For the removal of doubts, it is hereby declared that the

communication of the reasons to the borrower by the secured creditor for

not having accepted his representation or objection or the likely action of

the secured creditor at the stage of communication of reasons to the

borrower shall not entitle the person (including borrower) to make an

application to the Debts Recovery Tribunal under this sub-Section.”

62. Thus, the scope of challenge under Section 17 before the Debt Recovery

Tribunal or from its orders, before the Appellate Tribunal, pertains to

grievances in respect any of the measures referred to sub -section (4) of

Section 13 taken by the secured creditor or its authorised officer. Section

17(1) further provides that “any person” (including the borrower) so aggrieved

may make an application under Section 17(1) before the Tribunal.

63. Thus, Section 17, read in conjunction with Section 34, of the SARFAESI Act

clearly precludes the Civil Court‟s jurisdiction in respect of any challenge to a

measure taken by the secured creditor under Section 13(4) of the SARFAESI

Act.

64. Section 13(4) is quoted hereinbelow:

“13 (4) In case the borrower fails to discharge his liability in full within

the period specified in sub-Section (2), the secured creditor may take

recourse to one or more of the following measures to recover his secured

debt, namely:—

a) take possession of the secured assets of the borrower including

the right to transfer by way of lease, assignment or sale for

realising the secured asset;

b) take over the management of the business of the borrower

including the right to transfer by way of lease, assignment or sale

for realising the secured asset:

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Provided that the right to transfer by way of lease, assignment or sale

shall be exercised only where the substantial part of the business of the

borrower is held as security for the debt:

Provided further that where the management of whole of the business or

part of the business is severable, the secured creditor shall take over the

management of such business of the borrower which is relatable to the

security for the debt;]

(c) appoint any person (hereafter referred to as the manager), to manage

the secured assets the possession of which has been taken over by the

secured creditor;

(d) require at any time by notice in writing, any person who has acquired

any of the secured assets from the borrower and from whom any money

is due or may become due to the borrower, to pay the secured creditor, so

much of the money as is sufficient to pay the secured debt.”

65. If we compare the scope of Section 17 with the reliefs sought in the plaint of

the present suit, there would be no manner of doubt that all the reliefs sought

in the suit by the respondent no.1 not only could be but had to be granted by

the Debts Recovery Tribunal under the SARFAESI Act and not by the Civil

Court, whose jurisdiction is precluded by Section 34 of the said Act. Thus, the

suit is palpably barred by Section 34 of the SARFAESI Act.

66. Section 9 of the Code of Civil Procedure, 1908 also recognizes such express

bars as a limit to the powers of the Civil Court to entertain a suit.

67. It is settled law that maintainability of the suit in which the injunction is

sought is an essential component of prima facie case for grant of injunction.

Hence, in view of the aforementioned express bar hitting at the root of the

jurisdiction of the Civil Court to entertain the suit, the plaintiff/respondent

no.1 failed to establish even a prima facie case for grant of injunction.

68. The plaintiff /respondent no.1 cannot take shelter of ignorance of the

measures taken under Section 13(4) of the SARFAESI Act , since it had

participated in the e-auction sale, where the appellant turned out successful.

Thus, the respondent no.1 had full knowledge of the measures taken under

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Section 13(4) by the secured creditors/Bank. Even in the sale notice,

pursuant to which the e-auction was initiated, the particulars of the dates on

which the demand notice under Section 13 (2) of the SARFAESI Act as well as

the possession notice under Section 13(4) thereof were issued were clearly

enumerated.

69. Hence, the plaintiff/respondent no.1 was fully aware of the fact that the

purported tenancy granted to it was barred under Section 13 (13) of the

SARFAESI Act as well that there were claims of tenancy by third parties in

respect of the suit property.

70. The respondent no.1 has argued that even a trespasser is to be evicted by due

process of law. However, the converse is not true, that is, a trespasser cannot

seek injunction against the true owner. Even otherwise, the aforesaid theory

is not applicable in the present case, in view of the scheme of Sections 13 and

14 of the SARFAESI Act and the corresponding Rules by themselves forming a

comprehensive code of procedure for eviction of all unauthorized occupants,

more so when such occupants claim their title through the borrowers. Thus,

measures taken under the said provisions sufficiently qualify as “due process

of law”.

71. Hence, the present suit is prima facie not maintainable.

Errors in the impugned judgment

72. The learned Trial Judge failed to advert to the aspects discussed above. In

particular, the learned Trial Judge came to the conclusion that a prima facie

case of tenancy has been made out by the plaintiff/respondent no. 1, by

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completely overlooking the effect of Section 13(13) of the SARFAESI Act, which

renders the purported tenancy agreement a nullity.

73. The learned Trial Judge also misconstrued the “as is where is” clauses in the

sale certificate and the sale deed, since such expression does not enure to the

benefit of the plaintiff. As per the discussion above, the plaintiff neither

claimed continuous physical possession (but only intermittent user), nor did

it ask for any possessory relief in the suit or the temporary injunction

application.

74. Thirdly, the learned Trial Judge proceeded on the premise that the function of

the Debts Recovery Tribunal is limited to recovery of debts and proceeded to

hold accordingly that Section 34 of the SARFAESI Act was not a bar to the

suit, in the process completely overlooking the combined effect of Section 17,

read with Sections 13(4) and 34 of the SARFAESI Act.

75. The reliefs claimed in the suit squarely come within the bar under Section 34,

since the sale certificate and the sale deed in favour of the appellant were a

culmination of measures taken under Section 13(4) of the SARFAESI Act,

thus, coming within the scope of challenge by any aggrieved person under

Section 17 of the said Act, which, in turn, took the reliefs within the ambit of

exclusion of the Civil Courts‟ jurisdiction as envisaged in Section 34 of the

said Act.

76. Also, the learned Trial Judge granted injunction in respect of possession as

well, by overlooking the fact that no such relief was sought, not only in the

suit but in the temporary injunction application which was disposed of by the

impugned order. Thus, such relief was palpably de hors the prayers made in

the injunction application itself.

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77. Even in respect of the other components of injunction granted in the

impugned order, since the suit itself is prima facie not maintainable in respect

of a challenge to the sale deed and the sale certificate issued in favour of the

appellant, no injunction could be granted on such count.

78. The grant of injunction in that regard virtually tantamounts to passing a final

decree in the non-maintainable suit, prior to the suit being decided finally on

the question as to whether the sale deed or the sale certificate were vitiated by

infraction of any law.

79. Lastly, the learned Trial Judge overlooked the contrary injunction granted

against respondent no.1 to protect the appellant‟s possession in respect of the

self-same property in the miscellaneous appeal arising out of the appellant‟s

earlier suit. Hence, the grant of such injunction in the teeth of the earlier

order is itself a palpable error of law.

CONCLUSION

80. In fine, in view of the observations and findings rendered above, the Court

comes to the conclusion that the learned Trial Judge erred in law as well as in

facts in passing the impugned order of inju nction in favour of the

plaintiff/respondent no.1.

81. Accordingly, FMAT/493/2025 is allowed on contest, thereby setting aside the

impugned order dated July 19, 2025 p assed by the learned Civil Judge

(Senior Division), Fourth Court at Alipore, District: South 24 Parganas in Title

Suit No. 744 of 2025 and dismissing the temporary injunction application

filed by the plaintiff/respondent no.1 under Order 39 Rule 1 and 2, read with

Section 151, of the Code of Civil Procedure, filed in connection with the said

suit.

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82. Consequentially, CAN/2/2025 stands disposed of as well.

83. There will be no order as to costs.

84. Urgent Photostat certified copies of this judgment, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

(SABYASACHI BHATTACHARYYA, J.)

I agree.

( SUPRATIM BHATTACHARYA , J. )