Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1782-2021 1 in S.C. Suit No.1265-2021
MHCC010057812021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1782 OF 2021
IN
S.C. SUIT NO. 1265 OF 2021
M/s. R.M. Traders & Another ] ...Plaintiff.
Versus
Oriental Bank of Commerce & Others]…Defendants.
Appearance:
Advocate Adarsh Kanojia for Plaintiff.
Advocate Rama Nageshwaram for Defendant No.4.
CORAM : V.G. RAGHUWANSHI
JUDGE, (C.R.NO.08)
DATE : 15/03/2024
ORDER
1) Defendant No.4 took this notice of motion for rejection of plaint
under Order 7 Rule 11 of Civil Procedure Code, pending hearing of this
notice of motion stay the main suit. It is contended by defendant No.4
that issues raised and reliefs sought by plaintiff are barred by section 34
of SARFAESI Act 2002. Plaintiff prays for a remedy against demand
notice and possession notice issued under section 13(2) and 13(4) of
SARFAESI Act 2002. Remedy was available under section 17 of
SARFAESI Act 2002. All reliefs claimed by plaintiff are barred by section
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NM No.1782-2021 2 in S.C. Suit No.1265-2021
34 of SARFAESI Act 2002. This court lacks jurisdiction. Plaintiff
challenges constitutional validity of master circular issued by RBI in
exercise of its statutory power and sought a declaration against it. This
cannot be dealt with by this court. RBI issued circulars on income
recognition and asset classification, they are in the nature of
subordinate legislation issued by Reserve Bank of India in exercise of
powers under Banking & Regulation Act, 1949. Its validity cannot be
decided by this court. The plaintiff should have approached Hon'ble
High Court in writ jurisdiction to challenge all these circulars. Suit is
bad for mis-joinder of parties.
2) Plaintiffs filed their reply and opposed this notice of motion.
Plaintiffs submitted that this notice of motion is an attempt to dismiss
the bonafide suit on technical grounds. Defendant No.4 is trying to
confuse issues involved in this matter. Dismissal of suit under Order 7
Rule 11 is against good equity and good conscience. They denied all
contentions of Defendant No.4 and prayed for rejecting this notice of
motion.
3) I have heard Ld. Counsels for both sides at length. Shri. Kanojia,
Ld. Counsel for plaintiff left no stone unturned to canvass that the
dispute involved in this matter is covered by MSME Act and this court
can try the issue. On the other hand, Smt. Nageshwaram, Ld. Counsel
for defendant No.4 took me through section 13 (2) and 13(4) of
SARFAESI Act 2002 and she pointed out section 34 to show that
jurisdiction of this court is barred. Plaintiff had only one remedy, it was
under section 17 of C.R.P.C. Act. She also pointed that master circulars
issued by RBI cannot be challenged before this court. She drew my
attention towards order of Hon'ble Bombay High Court in W.P.
No.4620/2022 dtd. 11/1/2024. By this judgment Hon'ble Bombay High
Court disposed off a group of writ petitions. Relevant paragraph of this
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NM No.1782-2021 3 in S.C. Suit No.1265-2021
judgment is at No.16 and 17.
4) I have perused the plaint and averments in the affidavit in
support of notice of motion. This suit is nothing but, an attempt to stop
the proceeding before DRT. The averments in the plaint clearly show
that defendants should have approached DRT under section 17 and this
court has no jurisdiction in view of section 34 of SARFAESI Act 2002.
Therefore, plaint is liable to be rejected under clause (d) of Rule 11 of
Order 7. Therefore, I proceed to pass following order:-
ORDER
1) Notice of Motion No.1782/2021 is allowed.
2) Plaint in S.C. Suit No.1265/2021 is rejected.
3) S.C. suit no.1265/2021 is disposed off. It appears from perusal of
record that registered notice of motions No.294/2020, 411/2020,
1747/2021, 150/2022, 1783/2021 and 1676/2022 and chamber
summons No.36/2021 are pending in this matter. They also stand
disposed off.
4) Notice of Motion No.1782/2021 is disposed off accordingly.
Date : 15/03/2024.
(Shri. V.G. Raghuwanshi)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & directly typed on: 15/03/2024.
Signed on : 15/03/2024.
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NM No.1782-2021 4 in S.C. Suit No.1265-2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/03/2024. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI V.G. RAGHUWANSHI (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
15/03/2024.
JUDGMENT/ORDER signed by P.O. on 15/03/2024.
JUDGMENT/ORDER uploaded on 18/03/2024.
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