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2020 (11) TMI 761 - HC - Benami PropertyBenami transaction - jurisdiction of civil Courts under Section 45 - Whether a civil Court can consider an application when its jurisdiction is alleged to be barred by operation of law - question agitated for the second time before this Court. - HELD THAT:- Substance of the respondent’s case is that he had paid the entire sale consideration for the purchase of plaint ‘B’ schedule property in the name of his sister Mary and that the document happened to be nominally taken in the name of the Mary only due to the fact that the respondent was working in the Merchant Navy. The Benami Transactions (Prohibition) Act, 1988 came into force on 5.9.1988. The Act was enacted with the objective to prohibit benami transactions and the right to recover property held benami. The Act was extensively amended by Act 43 of 2016, which came into force with effect from 1.11.2016, except Sections 3, 5 and 8 which are deemed to have come into force w.e.f 19.05.1988 (read Section 1 (3) of the Act). Once it is established in Court that the claim put forth in the suit is a ‘benami transaction’ not falling within the exceptions under Section 2 (9) of the Act, then no suit will lie in view of Section 4 of the Act; that there is a clear bar of jurisdiction of civil Courts under Section 45 of the Act and that pending cases have to be transferred to the Adjudicating Authority or Appellate Authority. Exhibit P-9 order is erroneous and unsustainable in law and is liable to be interfered with because when the petitioners have raised a specific plea that the suit is hit by the prohibitions under Sections 4 and 45 of the Act, the Trial Court ought to have considered the said question as a preliminary issue as laid down in T.M.Bagasarwalla v. H.R.Industries [1997 (2) TMI 563 - SUPREME COURT] before making an endeavor to decide on Exhibit P-5 application, otherwise as it is commonly said in the idiom it would be like putting the cart before the horse. Thus remit the matter back to the Trial Court for de novo consideration, to decide on the maintainability of the suit in view of Sections 4 and 45 of the Act, as contemplated under Order VII Rule 11 (d) of the Code or decide whether the suit has to be transferred in light of Section 65 of the Act, in which case the Trial Court shall try the question as a preliminary issue, as provided under Order XIV Rule 2 (2) of the Code. Only if the Trial Court finds it has jurisdiction, it shall decide Exhibit P-5 application.
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