Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.111/2018 ..1.. Suit Stamp no.368/2018
CNR No.MHCC010003652018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.111 OF 2018
IN
SUIT STAMP NO.368 OF 2018
Mohan Chelladurai Nadar .. Plaintiff
Versus
Dombivali Nagari Sahakari Bank Ltd.
and others .. Defendants
Learned Advocate C. J. Joveson for plaintiff
Learned Advocate Ashutosh R. Gole for defendant No.1
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 14th March, 2018
: ORDER :
1. This notice of motion is for interim relief of temporary
injunction.
2. Story put forth by plaintiff in short is that :
Flat bearing No.701, situated at Sanket Apartment, 14th Road,
Chembur, Mumbai more particularly described in plaint para No.1 is the
subject matter of present suit. (hereinafter referred to as the 'suit
flat'). As per plaintiff, suit flat is owned and possessed by defendant
No.8 and 9. Since March 2009 plaintiff is in use and occupation of suit
flat as tenant. However behind back of plaintiff defendant No.8 and 9
have mortgaged suit flat to defendant No.1 bank against loan
transaction and defendant No.1bank initiated action under SARFAESI
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Act against defendant No.8 and 9. An order of dispossession is passed
by learned Additional CMM on 29/11/2017. Said order is without any
notice to plaintiff and without following due procedure of law and
against principle of natural justice. This constrained plaintiff to file
present suit for various reliefs and present notice of motion for
protection of his possession over suit flat till the decision of suit on
merit.
3. By filing reply defendant No.1 bank has raised strong
objection. As per defendant bank jurisdiction of this court to try and
entertain present suit is ousted. Defendant bank also raised objection
on maintainability of suit before this court. To him borrowers have
already handed over vacant possession of suit flat. Therefore,notice of
motion becomes imfructuous. Suit flat is nothing but Secured Assets.
Bank has legally started action under SARFAESI Act by following due
procedure of law. The action of bank is already challenged by
landlords/borrower before Cooperative Court, DRT and Hon'ble High
Court. As no reliefs are granted to borrower they have filed present suit
under the garb of plaintiff to delay the action. Hence plaintiff is not
entitled for equitable relief. On all these grounds defendant bank
prayed for rejection of notice of motion.
4. On rival stand of both parties following points arise for my
determination. I have recorded my findings to them together with
reasons as under :
POINTS FOR DETERMINATION FINDINGS
1. Whether plaintiff proves prima
facie case to grant interim relief of
temporary injunction ?
.. .. In the negative
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2. In whose favour balance of
convenience lies? .. In favour of defendant
no.1Bank
3. To whom irreparable loss will be
caused if temporary injunction is
granted?
.. To Defendant No.1Bank
4. What Order ? Notice of Motion is dismissed
as per final order
: REASONS :
5. In support of his contention, plaintiff relied on order of
learned Addl. CMM dated 29/11/2017 below Exh.A, the notice issued
by Court Commissioner to Sr. Inspector of police Chembur police station
below Exh.B and amended Rules of Maharashtra Cooperative Society
Act below Exh.C. As against this defendant bank relied on resolution
below Exh.A, order of learned Additional CMM dated 29/11/2017
below Exh.B, letter dated 10/01/2018 issued by borrowers to bank
below Exh.C, proceedings before Debt Recovery Tribunal below Exh.D,
copy of plaint in Suit No.5317 of 2017 below Exh.E, copy of proceeding
before Cooperative Court below Exh.F and copy of memorandum of
writ petition below Exh.G.
6. Before entering into actual merit, let me quote that in case of
Makers Development Services Pvt. Ltd. Vs. Vishweshwariayya
Industrial Research and Development Centre (AIR 2012 SC 437)
Hon'ble Apex Court ruled as “While passing interim order of injunction
Court is required to consider three basic principles namely [a] prima
facie case; [b] balance of convenience and inconvenience and [c]
irreparable loss and injury. The conduct of parties must also be seen.
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The Court should not interfere only because the property is very
valuable one. Grant or refusal of injunction has serious consequences
depending upon the nature thereof and in dealing with the said matters
Court must make all endeavors to protect the interest of the parties” By
keeping well in mind this basic principle I will turn towards facual
aspect.
7. Firstly, defendant bank has challenged maintainability on the
ground that possession of suit flat is already handed over to defendant
bank on 10/01/2018 by borrowers. Therefore notice of motion
becomes imfructuous. To base this contention, defendant bank relied
on letter dated 10/01/2018 below Exh.C. Perusal of Exh.C shows that
by this letter borrower Mr. Amrut Parab has requested bank to grant
time of 20 days as his old mother and kids are staying in suit flat. Very
important to note that this letter do not bears signature of Mr. Amrut
Vijay Parab as alleged by defendant bank. Therefore, on the basis of
this unsigned letter prime facie inference cannot be drawn that as
possession is handed over, notice of motion becomes imfructuous.
Resultantly, this argument holds no water at all.
8. Now, coming towards prima facie case, it is contention of
plaintiff that he is in use and occupation of suit flat since 2009 in the
capacity of tenant and behind his back suit flat is mortgaged by
defendant No.8 and 9 to defendant No.1 bank. Further behind his back
defendant No.1 bank has started action under SARFAESI Act. However,
to prove the prima facie substance and smell of truth in this contention
nothing except bare words is with him. Not only this but said
contention prima facie seems to be inconsistent and unbelievable on the
basis of documents below Exh.D, Exh.E, Exh.F, and Exh.G. The
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documents below Exh.D to Exh.G are nothing but copies of action
taken by borrowers against bank before DRT, Cooperative Court, City
Civil Court and Hon'ble High Court. These proceeding are having no
whisper about possession of plaintiff over the suit flat as tenant. If
certainly suit flat might have been tenanted to plaintiff then borrowers
might have clear that fact at an initial stage before those courts. Further
if plaintiff is a tenant since 2009 there might be some documents in his
name. This is not so. Therefore bare words of plaintiff about his
tenancy right, without any cogent evidence are not suffice to infer his
possession over suit flat. Thus, from both angles plaintiff has prima
facie failed to prove his possession over suit flat.
9. During the course of argument learned advocate for plaintiff
by taking shelter to the law laid down in case of “Vishal N. Kalsaria Vs.
Bank of India (Criminal Appeal No.52 of 2016 decided 20/1/2016)
argued that DRT is having no jurisdiction over the tenanted premises.
Therefore this court has jurisdiction to protect his possession. Hon'ble
Apex Court in Vishals cae ruled as, “Both the legislations i.e. SARFAESI
Act and Rent Act are operate in different provinces and independent of
each other. It could well coexist. The SARFAESI Act in no way trenching
upon the province of Rent Act. Therefore, tenant who is invested with
absolute right, title, estate, possession and enjoyment of a property cannot
be dispossessed or deprived off his rights conferred by Rent Control Act”.
However, this argument of plaintiff's advocate as well as law laid down
in Vishal's case will not help the plaintiff in present suit. In present suit
plaintiff prima facie failed to prove his tenancy rights over the suit flat.
Therefore plaintiff cannot get any benefit of this preposition.
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10. While turning towards prima facie case it is equally
important to note that defendant bank has already initiated action
against defendant No.8 and 9. As per Section 34 of SARFAESI Act no
Civil Court have jurisdiction to entertain the suit in respect of any action
taken by the bank under this Act and no injunction shall be granted by
the Court in respect of action taken or to be taken under SARFAESI Act.
As per section 35 of the SARFAESI Act , provision of SARFAESI Act shall
have overriding effect on other laws. In case of Youth Development
Cooperative Bank Ltd Vs. Balasaheb Dinkarrao Salokhe and others
(2009 (1) BOM C.R. 444) Hon'ble Parent High Court held that “if
borrower fails to make payment; secured creditor may take action under
section 13(4) of Securitisation Act. Suit filed before Civil Court for
declaration of notice is illegal without jurisdiction and perpetual
injunction restraining from implementing said notice is not maintainable”.
Thus, in the light of preposition cited supra borrower who are making
plaintiff as a sword by conferring so called tenancy rights on him failed
to make out prima facie case in favour of plaintiff.
11. Stepping ahead appropriate remedy is also available before
DRT. Hon'ble Bombay High Court in case of State Bank of India Vs.
Jigishaben B. Sanghavi (2011 (3) Bom. C.R. 187) ruled that, “if a
person other than borrower is aggrieved by measures taken by secured
creditor under section 13(4) remedy is equally made available to such
person before the Tribunal or Appellate Tribunal. Tribunal or Appellate
Tribunal is empowered to determine any matter by or under this Act”. In
the light of said preposition appropriate remedy for plaintiff is available
before DRT. Thus, on legal aspect also plaintiff has failed to prove
prima facie case in his favour.
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12. In such eventuality if temporary injunction is granted then
certainly it will create hurdle in the way of bank to recover its dues.
Here bank has already approached to proper Authority and already
followed due procedure of law to recover the dues. In spite of this if
interim relief of temporary injunction is granted then much injustice
will cause to bank. In that light, balance of convenience and
irreparable loss also tilts with defendant No.1bank.
13. Before parting with order as stated earlier conduct of party is
required to be taken into consideration while granting or rejecting
interim relief of injunction. In this suit perusal of document below
Exh.D to Exh.G to reply show that borrowers have already knocked
doors of justice by taking recourse to all available remedies. When no
relief is granted to borrowers by any forum, present plaintiff by
conferring on himself rights of tenants approached this Court and
prayed for interim relief and declaration of certain statue as illegal.
This conduct of plaintiff prima facie bring into light an attempt at the
hands of borrowers to delay the action legally taken by defendant bank.
If this conduct is not taken seriously then there will be no end to the
litigation. The successful party will not be in a position to execute the
orders passed by court in their favour. Successful party will be
compelled to incur loss in defending the frivolous action taken by
unsuccessful party. To avoid this conduct at the hands of unsuccessful
party hereinafter, cost is required to be imposed on plaintiff for causing
delay in action of defendant bank.
14. From above it is clear that plaintiff has failed to establish
prima facie case, balance of convenience and irreparable loss. This
constrained me answer all points accordingly and pass following order:
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ORDER
Notice of Motion No.111 of 2018 stands dismissed with cost of
Rs.10,000/ by plaintiff to defendant No.1Bank.
(Pronounced in Open Court)
(Smt. U. L. Joshi)
District Judge
City Civil & Sessions Court,
Date : 14/03/2018 Gr. Bombay
Typed on : 14/03/2018
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.03.2018, 3.15 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Smt.U.L. Joshi
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
14.03.2018
JUDGMENT/ORDER signed by P.O.
on
19.03.2018
JUDGMENT/ORDER uploaded on 19.03.2018
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