858 [2023]

SUPREME COURT 4 S.C.R. 858

REPORTS [2023] 4 S.C.R.

A PUNJAB AND SIND BANK

v.
FRONTLINE CORPORATION LTD.
(Civil Appeal No.2924 of 2023)
B APRIL 18, 2023
[B. R. GAVAI AND ARAVIND KUMAR, JJ.]
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 – s. 34 – Respondent
purchased the suit property wherein the appellant-bank was inducted
C
as a tenant by the previous owner in the ground floor of the suit
premises – Respondent availed various credit facilities from the
appellant-bank to the tune of Rs.42.74 crore by mortgaging, inter
alia, the suit property as collateral – Thereafter, a purported
settlement agreement, dated 29.11.2010, filed in the ejectment suit
D which was filed earlier by the previous owner, before the City Civil
Court and a lease deed dated 11.02.2011 was executed between
the parties – Financial defaults were committed by the respondent –
Demand notice u/s. 13 of the SARFAESI Act was issued by appellant-
bank – Demand remained unmet – Appellant declared that it had
taken possession of the suit property – Respondent filed
E
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 filed restraining
appellant from disposing any part of suit property – Interim order
was passed by the Single Judge of the High Court that no final
F 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 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 u/s. 34 of the SARFAESI Act – Division Bench set
G
aside the order of the Single Judge and observed that the bar u/s.
34 of the SARFAESI Act was not absolute and restrained the appellant
from selling the suit property until the final determination 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
H Appellate Tribunal is empowered to determine in respect of any action
858
 PUNJAB AND SIND BANK v. FRONTLINE CORPORATION 859
LTD.

taken “or to be taken in pursuance of any power conferred under A

this Act” – Bar of civil 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
s.13 of the SARFAESI Act – Though a very limited extent jurisdiction
of the civil court can also be invoked, where for example, the action
B
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 – In the instant 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 require any probe
whatsoever – Single Judge had passed the said order on the basis C
of a statutory bar – Division Bench has grossly erred in interfering
with the discretion exercised by the Single Judge – Thus, the
judgment and order passed by the Single Judge upheld.
Allowing the appeal, the Court
Held : 1. The Supreme Court has held in Mardia Chemicals D
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 E
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 SARFAESI
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 F
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 civil 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 G
(4) of Section 13 of the SARFAESI Act. [Para 13][867-A-C]
2. This Court has further held that, 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 H
860 SUPREME COURT REPORTS [2023] 4 S.C.R.

A 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. [Para 14][867-D]
3. In the present case, it cannot be said that the action of
the secured creditor, i.e. the appellant is either fraudulent or that
B 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. [Para 15][867-E-F]
4. It has been held by this Court in the case of Wander Ltd.
C and Another v. Antox India P. Ltd 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 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
D 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 material and
seek to reach a conclusion different from the one reached by the
court below if the one reached by that court was reasonably
E 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. [Para 17][868-F-H]

F 5. Undisputedly, 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 statutory bar. As observed earlier, the
G scope in which a civil suit is maintainable as determined by this
Court in the case of Mardia Chemicals Limited is very limited.
The case of the respondent/plaintiff would not come within the
said limited scope. The Division Bench has grossly erred in
interfering with the discretion exercised by the Single Judge.
H [Para 18][869-A-C]
 PUNJAB AND SIND BANK v. FRONTLINE CORPORATION 861
LTD.

Mardia Chemicals Limited and Others v. Union of India A

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 B

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. C
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. D
1. Leave granted.
2. The present appeal assails the judgment and order dated 30th
January 2017, passed by the Division Bench of the High Court 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 E
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.
3. The facts, in brief, giving rise to the present appeal are as F
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 year 1972 by one G
M/s Bharat Chamber of Commerce. In the year 2003, M/s Bharat
Chamber of Commerce preferred an ejectment suit bearing 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 H
862 SUPREME COURT REPORTS [2023] 4 S.C.R.

A from M/s Bharat Chamber of Commerce, vide sale deed dated 17th
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 purported
B settlement agreement, dated 29 th November 2010, filed in the
aforementioned ejectment suit before the City Civil Court, Calcutta, 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 was actually
passed by the City Civil Court, Calcutta.
C
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 31st
March 2012. Soon afterwards, a demand notice dated 13th June 2012
was also issued by the appellant under sub-section (2) of Section 13 of
D the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred as
‘SARFAESI Act’) for recovery of outstanding dues of approximately
Rs.44.89 crore, with interest, from the respondent. The demand remained
unmet, and so the appellant issued a possession notice under sub-section
E (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
F C.S. No. 217 of 2013, was also instituted before the High Court, inter
alia, for specific performance of the purported settlement agreement
entered into between the parties, as well as the consequent lease deed.
The respondent claimed therein that, as per the terms of the purported
settlement agreement, the fulfilment of the obligations on part of the
appellant, which involved the temporary vacation of the appellant from
G the suit property so as to enable the respondent to reconstruct 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 from the
creation of third party interests in the newly constructed building. An
H
 PUNJAB AND SIND BANK v. FRONTLINE CORPORATION 863
LTD. [B. R. GAVAI, J.]

injunction application, being G.A. No. 1884 of 2013, was also moved by A
the respondent in the suit to restrain the appellant from 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 interim order was B
extended from time to time, and lastly vide order dated 2nd 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 C
for vacating the aforesaid interim order. The Single Judge, vide order
dated 2nd November 2016, set aside the interim order dated 15th 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 D
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. E

3.9 It is pertinent to note that, in the securitization application

preferred by the respondent, the DRT, vide order dated 7th August 2013,
refused to proceed further on account of the pendency of the civil suit
before the High Court.
F
3.10 Vide the impugned judgment dated 30th January 2017, the
learned Division Bench allowed the respondent’s appeal and set aside
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 upon the
purported settlement agreement by vacating the suit property and having G
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
H
864 SUPREME COURT REPORTS [2023] 4 S.C.R.

A 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.
4. We have heard Shri Ashim Banerjee, learned Senior Counsel
appearing on behalf of the appellant and Shri Karan Batura, learned
B counsel appearing on behalf of the respondent.
5. Shri 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 under Order
C 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.
6. Shri Batura, on the contrary, submitted that the Single Judge,
D 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.
7. Undisputedly, the property in question in respect of which the
suit is filed, has been mortgaged with the appellant-Bank. As observed
E by the Single Judge, the suit as well as the application for interim relief
has been cleverly drafted. Though various interim reliefs have been
sought, it will be relevant to refer to Clause (d) of the prayer, which
reads thus:
“(d) injunction restraining the respondent from in any manner
F 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.”
8. It could thus be seen that a blanket injunction restraining 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
G
has been sought.
9. By 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
H
 PUNJAB AND SIND BANK v. FRONTLINE CORPORATION 865
LTD. [B. R. GAVAI, J.]

time. As such, the appellant was constrained to file G.A. No. 2352 of A
2014 for vacating the said interim order. The same was ultimately vacated
by the Single Judge vide order dated 2nd November 2016.
10. It would be relevant to note that the Single Judge has
specifically referred to Section 34 of the SARFAESI Act while vacating
the interim relief granted to the respondent. B
11. The 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 finding it
necessary to restrain the Bank from selling the suit property until C
determination of the rights of the parties.
12. The 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 D
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 entertainable
before the Debts Recovery Tribunal only after such measures as
provided in sub-section (4) of Section 13 are taken and Section 34 E
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 to
approach the civil court. Therefore, it cannot be said that no remedy F
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 Appellate
Tribunal is empowered to determine in respect of any action taken G
“or to be taken in pursuance of any power conferred under this
Act”. That is to say, the prohibition covers even matters which
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 H
866 SUPREME COURT REPORTS [2023] 4 S.C.R.

A section (4) of Section 13. It is further to be noted that the bar of

jurisdiction is in respect of a proceeding which matter may 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
B
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.
51. However, to a very limited extent jurisdiction of the civil court
can also be invoked, where for example, the action of the secured
C 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
D 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)
E “22. The remedies of a mortgagor against the mortgagee who
is acting in violation of the rights, duties and obligations are
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
F 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
G 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.)””
H
 PUNJAB AND SIND BANK v. FRONTLINE CORPORATION 867
LTD. [B. R. GAVAI, J.]

13. It could thus be seen that this Court has held that the jurisdiction A
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 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
B
direction has so far been taken under sub-section (4) of Section 13 of
the SARFAESI 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 Court held that the bar of civil C
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.
14. This Court has further held that, to a very limited extent
jurisdiction of the civil court can also be invoked, where for example, the D
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.
15. In the present case, it cannot be said that the action of the E
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.
16. We find that the present appeal deserves to be allowed on F
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 the following
observations of this Court in the case of Wander Ltd. and Another v.
Antox India P. Ltd.2:
G
“14. The appeals before the Division Bench were against the
exercise of discretion by the Single Judge. In such appeals, 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
H
868 SUPREME COURT REPORTS [2023] 4 S.C.R.

A 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
B
one reached by the court below if the one reached by that court
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.
C 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. 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)
D
“... 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
E 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.”
17. It has been held by this Court that the Appellate Court would
not interfere with the exercise of discretion of the court of first instance
F and substitute its own discretion except 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. 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
G
material and seek to reach a conclusion different from the one reached
by the court below if the one reached by that court was reasonably
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
H interference with the trial court’s exercise of discretion.
 PUNJAB AND SIND BANK v. FRONTLINE CORPORATION 869
LTD. [B. R. GAVAI, J.]

18. Undisputedly, in the present case, while vacating the interim A

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 statutory bar.
As observed earlier, the scope in which a civil suit is maintainable as
B
determined by this Court in the case of Mardia Chemicals Limited
(supra) is very limited. The case of the respondent/plaintiff would not
come within the said limited scope. As such, we are of the considered
view that the Division Bench has grossly erred in interfering with the
discretion exercised by the Single Judge.
19. In the result, the appeal is allowed. The judgment and order C
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 the
learned Single Judge is upheld.
20. Pending application(s), if any, shall stand disposed of.
D

Ankit Gyan Appeal allowed.