Sudip Paitya vs Punjab National Bank And 3 Ors.
- Court
- Gauhati High Court
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GAHC010103622026
2026:GAU-AS:16275
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
O OF
FAO N . 32 2026
SUDIP PAITYA
S/O LATE SUDHANGSHU SEKHAR PAITYA,
R/O HOUSE NO. 76, 1ST LINK ROAD, P.O. AND P.S.
SILCHAR, DIST- CACHAR, ASSAM.
…….Appellant
VERSUS
PUNJAB NATIONAL BANK AND 3 ORS.
A STATUTORY BODY INCORPORATED AND GOVERNED
UNDER THE PROVISION OF BANKING REGULATIONS
ACT, 1948 AND ALSO CONTROLLED BY THE
GOVERNMENT OF INDIA VIDE BANKING NOTIFICATION
ACT, 1971 HAVING ITS HEAD OFFICE AT DELHI AND
CARRYING BANKING BUSINESS THROUGH VARIOUS
BRANCHES AND IN PRACTICAL, A BRANCH AT FANCY
BAZAR, GUWAHATI, ASSAM AND AT HOSPITAL ROAD,
SILCHAR, REPRESENTED BY ITS MANAGING DIRECTOR
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2:THE AUTHORIZED OFFICER PUNJAB NATIONAL BANK
FANCY BAZAR BRANCH (00130) L.I.C. BUILDING S.S.
ROAD GUWAHATI PIN- 781001 ASSAM.
3:ASST. GENERAL MANAGER PUNJAB NATIONAL BANK
FANCY BAZAR BRANCH (00130) L.I.C. BUILDING S.S.
ROAD GUWAHATI PIN- 781001 ASSAM.
4:THE AUTHORIZED OFFICER CUM CIRCLE HEAD
PUNJAB NATIONAL BANK CIRCLE OFFICE CENTRAL
ROAD SILCHAR OPPOSITE TO VISHAL MART P.O. AND
P.S.- SILCHAR DIST- CACHAR ASSAM.
. ….. Respondents
: BEFORE ::
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
For the Appellant(s) : Mr. D. Mozumder , Senior Advocate
: Mr. C Gogoi, Advocate
For the Respondent(s) : Mr. A Parvez, Advocate
Date of Hearing : 20.08.2026
Date of Judgment : 06.11.2026
JUDGMENT& ORDER
[1] Heard Mr. D. Mozumder, the learned Senior Counsel, assisted
by Mr. C. Gogoi, the learned counsel for the appellant. Also
heard Mr. A. Parvez, the learned counsel for the respondents.
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[2] This appeal under Order XLIII Rule 1 (r) of the Code of Civil
Procedure, 1908 has been filed by the appellant, Sri Sudip
Paitya, impugning the order dated 05.05.2026, passed in
Misc.(J) Case No. 205/2022 in connection with Title Suit No.
163/2022, by the Court of the learned Civil Judge (Senior
Division) No. 1, Cachar, Silchar whereby, the application filed
by the present petitioner under Order XXXIX Rule 1 and 2 of
the Code of Civil Procedure, 1908, praying for grant of
temporary injunction against the respondents during the
pendency of Title Suit No. 163/2022 was rejected by the trial
court.
[3] The facts relevant for the consideration of the instant appeal, in
brief, are that the present petitioner, as plaintiff, has filed the
Title Suit No. 163/2022, praying for a decree of declaration of
his right, title and interest over the suit property as well as a
declaration that the suit property is not mortgaged with the
defendants, along with grant of permanent injunction
restraining the defendants from taking physical possession of
the suit property.
[4] The present appellant is a permanent resident of District
Cachar in the State of Assam and his mother, namely, Late
Niyoti Paitya was the owner of a plot of land measuring 8
nd
kathas, 18 gondas in 2 RS Patta No. 27, Dag No. 139 of
Pargona Barakpar, Mouza Kanakpur Pt. II. The mother of the
plaintiff (appellant) had purchased the aforesaid land by virtue
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of two separate registered sale deeds. After the death of her
mother the appellant inherited half of the share in the aforesaid
land and half belonged to his brother Sandip Paitya. However,
later on, the appellant purchased 4 kathas 9 lechas of the land
from his brother by sale deed No. 4133 and thus become
absolute owner of 8 kathas 18 gondas of land.
[5] The appellant had applied for loan in the Punjab National Bank
and for procuring that loan, he mortgaged a plot of land
measuring 8 kathas, 18 gondas together with structures
nd
standing thereon covered under 2 RS Patta No. 27, Dag No.
113 in Pargona Barakpar, Mouza Kanakpur Pt. II in the District
of Cachar. After availing the said loan, the petitioner defaulted
in paying the instalments and the defendant bank declared the
loan account of the petitioner as NPA on 30.11.2018.
Thereafter, on 07.01.2019 the defendant bank issued demand
notice under Section 13(2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002(hereinafter referred to as SARFAESI ACT).
[6] After issuance of possession notice on 19.07.2019, the
defendant bank issued one sale notice on 29.09.2020. Being
aggrieved by the said notice dated 29.09.2020, the present
petitioner preferred a securitization application before the Debt
Recovery Tribunal at Guwahati, which was numbered as SA No.
48/2020. However, due to non-appearance of the engaged
counsel of the petitioner, the said SA No. 48/2020 was
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dismissed for default. Subsequently, the respondent/bank
issued e-auction sale notice on 08.07.2021 in respect of the
mortgaged land measuring 8 kathas 18 gondas and affixed a
banner of the bank on the outer gate of the said property with
remarks that the property belongs to the Punjab National Bank.
[7] However, thereafter, on 30.08.2022, the respondent/bank
affixed a banner with remarks “the property belongs to the
Punjab National Bank” on the outer gate of the suit property
which was covered by Dag No. 113 of RS Patta No. 27, which
was purchased by the present appellant by a separate sale
deed bearing No. 2286 dated 13.05.2008, and same was never
mortgaged to the bank. The said property is in no way
connected with the possession notice dated 19.07.19 or the e-
auction sale notice dated 08.07.2021. As such, the present
appellant approached the court of learned Civil Judge (Senior
Division No. 1), Cachar by filing Title Suit No. 163/2022 as well
as Misc. (J) Case No. 205/2022 seeking declaratory relief as
well as injunction. However, by the impugned order dated
05.05.2026, passed in Misc. (J) Case No. 205/2022, the Trial
Court has rejected the prayer for grant of temporary injunction
mainly on the plea that SA No. 48/2020 is pending before the
Debt Recovery Tribunal wherein the present appellant has
questioned the actions of the respondent bank initiated under
SARFAESI Act.
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[8] Mr. D. Mozumder, the learned Senior Counsel for the petitioner
has submitted that the property in respect of the Title Suit No.
163/2022 has been filed by the present appellant was not
mortgaged to the respondent bank for securing loan from
them. He submits that the appellant does not have any
objection if the bank proceeds with selling the property of the
appellant which was mortgaged with the bank, however, he
submits that the personal property of the appellant which is the
subject-matter of the aforesaid title suit may be taken over and
sold by the bank under Section 25 (aa) of the Recovery of
Debts and Bankruptcy Act, 1993 only if the property which is
already mortgaged with the bank is not sufficient to satisfy the
outstanding debt of the present appellant.
[9] He submits that merely because Section 25 (aa) of the
Recovery of Debts and Bankruptcy Act, 1993 empowers the
Recovery Officer the taking of possession and selling the
property over which security interest is created as well as the
other property of the debtor, said power may not be arbitrarily
exercised. He submits that the said powers may be exercised
only if the secured assets failed to fetch the money required to
satisfy the outstanding loan amount. In support of his
submissions, the learned Senior Counsel for the appellant has
cited a ruling of the High Court of Karnataka in the case of
“Mohan Bhandar Saraswathi Puram Vs. Vijaya Bank & Ors.”
reported in “ 2018 SCC Online Kar 4266 .”
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[10] The learned Senior Counsel for the appellant has further
submitted that from the affidavit-in-opposition filed by the
respondent bank in this appeal, wherein they have categorically
pleaded that by order dated 09.04.2021, the Debt Recovery
Tribunal, Guwahati has dismissed the SA No. 48/2020 for non-
prosecution. It also categorically states that a subsequent SA
filed by the present appellant before the Debt Recovery
Tribunal, Guwahati, which was registered as SA No. 40/21 was
also dismissed on 09.03.2023. As such, on the date of passing
interim order in Misc.(J) Case No. 205/2022, no securitization
application filed by the present appellant was pending before
the Debt Recovery Tribunal. Hence, he submits that the reason
shown by the Trial Court regarding pendency of SA No. 48/20
before the Debt Recovery Tribunal, Guwahati is apparently
perverse and justifies interference by this court with the
impugned order. Hence, he prays for setting aside the
impugned order and remanding the matter back to the trial
court to decide the Misc. Case afresh after hearing both the
sides.
[11] On the other hand, Mr. A. Pervez, the learned counsel for the
respondent bank has submitted that though the SA No. 48/20
has been dismissed for default by the Debt Recovery Tribunal,
Guwahati, however, the impugned order does not warrants any
interference by this court as the matter is pending before Debt
Recovery Tribunal, Guwahati under SARFAESI Act and Section
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34 of the said Act bars the jurisdiction of the civil court from
entertaining any suit or proceeding in respect of any matter
which a Debt Recovery Tribunal or Appellate Tribunal are
empowered by the said Act to determine. He submits that the
bar on civil court also operates in granting injunction in respect
of any action taken or to be taken in pursuance of any power
conferred under SARFAESI Act, 2002 or under the Recovery of
Debts Due to Banks and Financial Institution Act, 1993. Hence,
he submits that the instant appeal is liable to be dismissed.
[12] The learned counsel for the respondent bank submits that
under Section 25 (aa) of the Recovery of Debts Due to Banks
and Financial Institution Act, 1993, the Recovery Officer made
a possession and sale any other property of the debtor apart
from secured assets. He submits that presently, recovery
proceedings for recovery of an amount of Rs. 1,61,45,292.54
from the present appellant is pending before the Recovery
Officer, DRT, Guwahati. He submits that future interest @
10.50% per annum is also accrued on the aforesaid amount
which would enhance the total outstanding dues; hence, apart
from secured assets the Recovery Officer may take possession
of the other properties of the appellant to ensure that the
outstanding dues in the name of the appellant may be
liquidated. As such, he submits that there is no justification for
this court to interfere with the impugned order, hence, he prays
for dismissing the instant appeal with exemplary cost.
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[13] I have considered the submissions made by the learned counsel
for both sides and have gone through the materials available
on record. I have also gone through the rulings cited by the
learned counsel for both sides in support of their respective
submissions.
[14] On perusal of the materials on record, it appears that the Trial
Court has rejected the injunction application filed by the
present appellant mainly because the appellant had filed an SA
No. 48/2020 before the Debt Recovery Tribunal and the
property in respect of which possession notice of the
respondent bank has been issued is pending for adjudication
before Debt Recovery Tribunal, Guwahati.
[15] Though, on perusal of records, it appears that both the
securitization applications filed by the present appellant before
the Debt Recovery Tribunal, Guwahati namely, SA No. 48 /20
and SA No. 40/21 have been dismissed by the Debt Recovery
Tribunal. However, it also appears that recovery proceedings
for recovery of an amount of Rs. 1,61,45,292.54 from the
present appellant is pending before the Recovery Officer, DRT,
Guwahati.
[16] For the sake of convenience, Section 25 of theRecovery of
Debts Due to Banks and Financial Institution Act, 1993, which
is relevant in this regard,is reproduced here in below: -
25. Modes of recovery of debts.
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- The Recovery Officer shall, on receipt of the copy of
the certificate under sub-section (7) of section 19,
proceed to recover the amount of debt specified in the
certificate by one or more of the following modes,
namely:
(a) attachment and sale of the movable or immovable
property of the defendant;
(aa) [ taking possession of property over which security
interest is created or any other property of the defendant
and appointing receiver for such property and to sell the
same;] [Inserted by Act No. 44 of 2016.]
(b) arrest of the defendant and his detention in prison;
(c) appointing a receiver for the management of the
movable or immovable properties of the defendant.
(d) [ any other mode of recovery as may be prescribed
by the Central Government.] [Inserted by Act No. 44 of
2016 .
[17] From the above statutory provisions, it appears that though,
the suit property in the Title Suit No. 163/2022 is not the
secured asset in respect of the aforesaid loan amount of the
appellant, however, under Section 25(aa) of the Recovery of
Debts Due to Banks and Financial Institution Act, 1993 the
Recovery Officer has power of taking possession of secured
assets of the debtor as well as also of any other property of the
debtor and to appoint receiver for such property and to sell the
same. Obviously, the sense of fairness demands that the
Recovery Officer should first make attempt to liquidate the
outstanding loan of the debtor by taking possession and selling
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the secured assets only and if even after that there remains
outstanding amount against the loan amount the other
property of the debtor may also be taken possession of and
sold.
[18] However, under the facts and circumstances of this case, the
question before this Court is as to whether the Trial Court was
correct in denying the grant of temporary injunction against the
respondent bank during the pendency of Title Suit No.
163/2022, as was prayed for by the present appellant.
[19] We have discussed in the foregoing paragraphs that under the
provisions contained in Section 25(aa) of the Recovery of Debts
Due to Banks and Financial Institutions Act, 1993, the Recovery
Officer has the power of taking possession of secured assets as
well as unsecured assets of the debtor to realise the
outstanding dues from the appellant (debtor).The provisions
contained in Section 34 of the SARFAESI Act, 2002 is relevant
in this context and as such, same is reproduced hereinbelow:
"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
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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."
[20] On perusal of the aforesaid statutory provision, it appears that
if an authority has taken any action which it is empowered to
take under the SARFAESI Act, 2002 or under the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993, no
Civil Court shall grant any injunction in that matter.
[21] In the instant case, apparently, a recovery proceeding for
recovery of an amount of ₹1,61,45,292.54 from the present
appellant is pending before the Recovery Officer, DRT,
Guwahati. As such, in the event of any secured asset
mortgaged with the bank not fetching the amount required to
liquidate the outstanding dues of the appellant, the Recovery
Officer may be well within its power under Section 25 (aa) of
the Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 to take possession, appoint receiver, and sell any
other property of the appellant.
[22] As such, the bar contained in Section 34 of the SARFAESI Act is
applicable in the instant case also, and hence, the Trial Court
cannot be faulted with in rejecting the prayer for grant of
temporary injunction during the pendency of Title Suit No.
163/2022.
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[23] In view of the discussions made and reasons stated in the
foregoing paragraphs, this appeal is found to be devoid of any
merit and accordingly dismissed. The appellant shall, however,
be at liberty to approach the Debt Recovery Tribunal, Guwahati
for seeking fair exercise of power under Section 25 (aa) of the
Recovery of Debts Due to Banks and Financial Institutions Act,
1993 by the Recovery Officer, DRT, Guwahati in dealing with
personal property of the appellant which was not mortgaged to
the respondent bank.
[24] The parties are left to bear their own cost.
[25] Let a copy of this judgment be sent to the Trial Court for
information.
JUDGE
Comparing Assistant
Munmun
Boruah
Digitally signed by
Munmun Boruah
Date: 2026.11.06 13:26:36
+05'30'
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