(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the Judgment and Decree dated 11.03.2022 in I.A.No.4778 of 2016 in O.S.No.5819 of 2015 passed by the Learned VI Assistant City Civil Court, at Chennai.)

1. This Civil Revision Petition has been filed under Article 227 of the Constitution of India challenging the fair and decretal order dated 11.03.2022 in I.A.No.4778 of 2016 in O.S.No.5819 of 2015 passed by the Learned VI Assistant City Civil Court, at Chennai, wherein the application filed by the 5th defendant under Order VII Rule 11 of C.P.C., for rejection of plaint came to be dismissed by the Court below.

2. Heard the learned counsel for the petitioner and the learned counsel appearing on behalf of respondents 1 and 2 and carefully perused the materials available on record and this Court also carefully went through the order passed by the Court below.

3. The 1st respondent is the plaintiff who filed the suit in O.S.No.5819 of 2015 seeking the relief of declaration to declare the mortgage created by the 4th defendant in favour of the 1st defendant on 20.09.2022 as fraudulent, invalid, sham and nominal and to declare the Sale Certificate executed in favour of the 5th defendant on 05.08.2015 as not binding on the plaintiff and for permanent injunction restraining defendants 1, 5 and 6 not to interfere with the possession and enjoyment of the property.

4. The suit was filed with a cause of action that the 4th defendant deposited forged title deeds with the 1st defendant on 20.09.2022 and the 1st defendant, based on those forged documents, initiated proceedings before the Debt Recovery Tribunal and the Recovery Certificate was issued based on which the property was brought for auction and the 5th defendant had purchased the property through the Sale Certificate dated 05.08.2015 and whereas, in the meantime, the property was sold by the 4th defendant in favour of the plaintiff as early as on 29.12.2006 and therefore, none of the transactions that took place after the sale will bind the plaintiff.

5. The 5th defendant filed IA No.4778 of 2016 under Order VII Rule 11 of C.P.C., for rejection of plaint on the ground that there is a bar in maintaining the present suit under Section 18 of the Recovery of Debts and Bankruptcy Act, 1993 (for the sake of brevity, hereinafter referred to as 'the RDB Act'). The second ground raised is that the 4th defendant stood as a guarantor by depositing the title deeds for the loan that was availed by his son and due to non-payment of the loan amount, the property was brought for sale and was sold in favour of the 5th defendant and the auction sale was challenged by the plaintiff, which came to be rejected by the Debt Recovery Tribunal and the appeal also came to be rejected and therefore, the plaintiff cannot be permitted to parallelly prosecute the suit after availing the remedy under the Act.

6. The Court below, while dealing with the application, came to a conclusion that the suit has been filed mainly on the ground that forged documents were used by the 4th defendant for creating the mortgage and forgery has been committed and considering the allegations made, it can only be decided by a competent Civil Court and the bar provided under the RDB Act will not apply and the grounds raised can be considered on merits while dealing with the main suit. Aggrieved by the said order, the present Civil Revision Petition has been filed before this Court.

7. In the case in hand, the 1st respondent/plaintiff has admittedly purchased the suit property on 29.12.2006. The 4th defendant has created a mortgage by depositing the title deeds in favour of the Indian Bank on 20.09.2022 for the loan that was availed by the 4th defendant’s son. The Demand Notice dated 12.09.2006 was issued to the 4th defendant and there was no response from the 4th defendant. However, the 4th defendant proceeded to sell the same property in favour of the plaintiff on 29.12.2006.

8. Section 28 (3)(x) of the RDB Act provides that where the notice under sub-section (3) has been sent and the person fails to make payment in pursuance thereof to the Recovery Officer, there shall be a deemed attachment of the property. This deemed attachment came into effect from 12.09.2006 and whereas, admittedly, the Sale Deed was executed in favour of the plaintiff on 29.12.2006.

9. The plaintiff filed MA Nos.19 and 20 of 2014 before the Recovery Officer challenging the auction and also sought a stay of the auction. Since the auction had taken place, the Debt Recovery Tribunal-II, passed an order dated 01.04.2014 to the effect that, as on the date of service of the demand notice, the plaintiff neither had possession nor had title to the property. Therefore, there was no reason to postpone the auction. The auction was conducted and the 5th defendant was the successful bidder, in whose favour the Sale Certificate was issued.

10. The plaintiff filed A.P.No.8 of 2014 before the Debt Recovery Tribunal-II, Chennai, seeking for setting aside the e-auction. This appeal was considered by the Debt Recovery Tribunal on merits and the appeal came to be dismissed by an order dated 19.05.2015.

11. Aggrieved by the same, appeals were filed before the Debt Recovery Appellate Tribunal, Chennai, and all the appeals were dismissed by a common order dated 19.07.2022. Aggrieved by the same, CRP Nos.4005 of 2022 etc., was filed before this Court and these Civil Revision Petitions are pending.

12. It must be kept in mind that the ground that has been raised by the plaintiff in the parallel proceedings that was prosecuted under the RDB Act is one and the same as was raised in the suit. On the one hand, the plaintiff is prosecuting the relief under the Act and the case is pending before this Court in CRP Nos.4005 of 2022 etc. On the other hand, the suit is being prosecuted before the Court below on the ground that the mortgage executed is fraudulent and the consequential Sale Certificate issued in favour of the 5th defendant is not binding on the plaintiff.

13. The plaintiff will not be allowed to ride two horses at the same time by parallelly ventilating the grievance before this Court and also prosecuting the suit before the Court below.

14. The plaintiff cannot get a better right and title than what the 4th defendant has. While testing the right claimed by the plaintiff, this Court has to see whether the same ground will be available to the 4th defendant to question the e-auction sale and the Sale Certificate. Obviously, the 4th defendant cannot question the e-auction and the Sale Certificate issued, for the simple reason that the demand notice was issued on 12.09.2006, as a result of which the deemed attachment came into force and subsequently, the property was sold by the 4th defendant in favour of the plaintiff. At no point of time, the 4th defendant has questioned the mortgage created by deposit of title deeds for the loan that was availed by his son. If that mortgage has not been questioned by the 4th defendant, the plaintiff, who is a subsequent purchaser, cannot question the validity of the mortgage created by deposit of title deeds.

15. Apart from the above, the present suit filed by the plaintiff is barred under Section 18 of the RDB Act. This is more so since the plaintiff is also prosecuting the remedy available under the RDB Act and the Civil Revision Petitions are pending before this Court. Thus, there is a clear bar in law to maintain the suit before the Court below.

16. The plaintiff has taken a stand that the original title deeds are available with her and whereas, the bank is relying upon forged documents. The stand taken by the bank is that the 4th defendant has created equitable mortgage by depositing the colour xerox copy of the title deeds and even if it is assumed that only the photocopy was deposited before the Bank, that will suffice to create a valid equitable mortgage in the light of the settled law on this issue. In any case, this is one of the ground that has been raised in the Civil Revision Petition that has been filed before this Court.

17. The Court below has not considered these crucial facts and has dismissed the application filed by the petitioner/5th defendant. The said order requires the interference of this Court and accordingly, it is hereby set aside. It is made clear that all the grounds that have been raised by the plaintiff in the Civil Revision Petition that is pending before this Court can be independently agitated on its own merits and in accordance with law. This Court has not rendered any findings on merits and this Court is inclined to strike down the plaint only on the ground that the suit itself is barred and the plaintiff cannot be allowed to prosecute the same relief before two forums. Therefore, the order passed in the present Civil Revision Petition will not have any bearing for the plaintiff to raise all the grounds in the pending Civil Revision Petitions before this Court.

18. In the result, this Civil Revision Petition is allowed and the plaint filed in O.S.No.5819 of 2015 on the file of the VI Assistant City Civil Court, Chennai, stands rejected. No Costs. Consequently, the connected miscellaneous petition is closed.