Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010009042020
CNR NO. MHCC010009042020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.339 OF 2020
IN
EXECUTION APPLICATIONNO.221 OF 2018
IN
SUMMARY SUIT NO.1373 OF 2017
RAVINDRA PITAMBAR PATIL & ORS. ....Plaintiffs.
V/s.
MRS. ADITI AMHIJEET SAWANT ....Defendants.
AND
BANK OF INDIA ..Applicant /
Intervener.
Appearances:
Ld. Adv. Achala Hatode a/w Adv. Paresh Madkaikar for plaintiff/DH.
Ld. Adv. Priya Nigwekar for Intervenor.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 01st December, 2021
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O R D E R
1. The present Notice of Motion is taken out by the applicant/
intervener for impleading them as party in the Execution proceedings
and for setting aside order dated 24.08.2018 in Execution and for
permission to proceed under the SARFAESI Act, 2002. It was
submitted by the applicant/ Intervener that one Vivek Patil and Snehal
Patil applied to the Applicant Bank for housing loan for a sum of
Rs.90,00,000/- to purchase flat No.1A/103, 1st floor, A Wing, Building
No.1, Bhavini Enclave Co-op. Housing Society, Mulund (East), Mumbai
– 400 081 (hereinafter referred as suit flat). The applicant Bank/
intervener considered the request and sanctioned loan as per sanction
letter dated 16.05.2016. The borrowers i.e. Vivek Patil and Snehal Patil
executed the requisite documents and deposited original Title Deeds.
Thereafter, they failed and neglected to regularise the account and also
failed to pay the regular installments. The Notices under Section 13(2)
of SARFAESI Act, 2002 was issued to them. The applicant/Interverner
Bank obtained order dated 06.11.2019 for taking physical possession of
the suit flat. Accordingly, advertisements were published in the
Newspapers. On 23.11.2019 the Secretary/ Chairman of the Society
where the suit flat was situated informed the Bank that as per the order
dated 24.08.2018 in Execution Application No.221 of 2018 the suit
flat has been attached under warrant of attachment. The
Applicant/Intervener Bank therefore filed the present Notice of Motion
and submitted that a sum of Rs.89,15,030/- is due and payable. If the
order of warrant of attachment is not set aside, the Bank will suffer
great loss and injury whereas no such prejudice will cause to the
plaintiff. The plaintiff and defendants colluded with each other and
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obtained order of Attachment and therefore, Notice of Motion be made
absolute.
2. The plaintiff/ Decree holder filed reply to the Notice of
Motion. The plaintiff /Decree holder denied all the statements /
allegations and contention of applicant/intervener. It was submitted
that after filing of Notice of Motion the plaintiff / decree holder
requested for inspection of the documents but the applicant/Intervener
failed to give inspection of documents and therefore, the interveners
cannot rely upon the documents. It was further submitted that the
Notice of Motion is not maintainable. The applicants/Intervenors failed
to explain their
locus standi and legal status to file the above Notice of
Motion in the Execution Application and therefore, the Notice of Motion
deserves to be dismissed.
3. It was further submitted that the Vivek Patil and Snehal
Patil and the defendant acted in collusion with the Applicant for the
purpose of applying alleged house loan. The applicant/ Intervener
without verifying the documents and without verifying the NOC issued
by the Society entered into the alleged agreement of Sale. However, the
Sale transaction had not attained finality as Vivek Patil had shown his
inability to pay the full consideration to defendant /Judgement Debtor.
The defendant and Vivek Patil purportedly entered into the alleged loan
transaction dated 19.05.2016. The Agreement of Sale is false and was
never intended to be acted upon the said fraud was investigated by
police authority. The defendant issued a letter dated 28.09.2017 to the
Society for her objection for transfer of the suit flat in the name of
Vivek Patil and therefore, Society had not issued NOC. The
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applicant/Intervener Bank without verifying the documents relied upon
the false documents.
4. In pursuance of the Judgment in Summary Suit No.1373 of
2017 dated 12.03.2018 the Judgment/ debtor was directed to pay the
plaintiff a sum of Rs.23,50,000/- with interest. The defendant
/Judgment Debtor despite the knowledge of the decree willfully failed
and neglected to comply with the said decree. Therefore, the plaintiff/
Decree holder filed Execution Application No.221 of 2018. As per the
order of the Executing Court Attachment warrant was issued under
Order 21, Rule 43 and Rule 54 of the Code of Civil Procedure.
Accordingly in pursuance of the order dated 24.08.2018 bailliff
attached immovable properties being residential flat and movable
properties lying in the flat on 01.10.2018. The Attachment of movable
and immovable property is still subsisting in the Execution Application.
During the pendency of the Attachment, the defendant/ Judgement
Debtor issued three demand drafts to the plaintiffs. The plaintiffs still
owes Rs.4,31,794/- with interest at the rate of 9% per annum. The
defendant Judgement Debtor is avoiding to pay the balance amount
and therefore, the plaintiff/ decree holder filed an application for Sale
of the suit flat. The said application is pending. The defendant
Judgement Debtor issued post dated cheques in favour of plaintiff.
However, it was dishonoured due to ‘fund insufficient’. The Office
department of the Society informed Bank about the NOC and about the
present matter. However the intervenor Bank in exercise of the powers
under Section 13 of SARFAESI Act proceeded to attach the property.
The plaintiffs have first preferance, charge and claim on the flat and the
movable properties. The intervener /Applicant Bank cannot illegally
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take possession of the suit flat under SARFAESI Act and therefore, the
present Notice of Motion be dismissed.
5. The Advocate for the Applicant/ Intervener filed rejoinder
and subsequently filed Sur rejoinder. It was submitted that the claim of
applicant/Intervener is of Rs.90,00,000/-. As per Section 26(E) of
SARFAESI Act, 2002 the property is to be given to secured creditor and
therefore the first charge should be of applicant / Intervener. As per
Section 34 of the SARFAESI Act the Civil Court is not having jurisdiction
to try the suit and therefore the Attachment Order be set aside and
physical possession of the property be handed over to the Applicant/
Intervener.
6. The Learned Advocate of applicant/ Intervener relied upon
four citations as follows:
1. In the matter of Asrec (India) Ltd.Vs. The State of
Maharashtra and others in W.P. No.1039 of 2017 on 13.12.2019
before Bombay High Court.
2. In the matter of PUNJAB NATIONAL BANK BANDRA (E)
VS. MAA BANBHORI STEEL INDUSTRY PVT. LTD., decided on
29.10.2018 before Bombay High Court in the Writ Petition
No.11018 of 2018.
3. In the matter of AXIS BANK LIMITED VS. STATE OF
MAHARASHTRA decided on 07.03.2017 before Bombay High
Court in the Writ Petition No.1796 of 2015.
4. In the matter of ADITYA BIRLA FINANCE LTD VS.
VYOMESH J. TRIVEDI, decided on 26.09.2018 before Bombay
High Court Chamber Summons No.1094 of 2017 in Execution
Application No.83 of 2012.
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I have carefully gone through the same.
7. Heard Learned Advocates for both the parties at length.
Perused documents annexed thereto. It is the admitted fact that the
plaintiff / Decree holder filed Summary Suit No.1373 of 2017 against
the Judgement Debtor. Pursuant to the decree as defendant Judgement
Debtor failed to comply the decree, Execution Application No.221 of
2018 was filed. The warrant of Attachment was issued and the bailliff
as per the order, attached the suit flat and the movable properties.
Since Decree was not satisfied even after Demand draft given by the
Judgement Debtor, the plaintiff decree holder filed an application for
selling of suit flat and thereafter the Notice of Motion came to be filed.
According to the applicant/ Intervener loan was sanctioned in favour of
one Vivek Patil and Snehal Patil as per sanction letter dated 16.05.2016.
The borrowers executed all the requisite documents. Since they were
irregular in payment of installments, action was taken under provision
in SARFAESI Act, 2002 was carried out and Symbolic possession was
taken by the intervener Bank. It was only after the letter received from
Secretary of the Society, the Bank came to know about the Attachment
of the suit flat under the Execution Application No.221 of 2018. The
applicant/ intervener Bank prayed to implead them as a party, secondly
for setting aside the order of Attachment of warrant and lastly to
proceed under SARFAESI Act, 2002. After going through the
submissions, it appears that the proceedings under SARFAESI Act will
not lie before this Court. So far as the Order of warrant of Attachment
is concerned, it seems that the Attachment of warrant is already
executed and the suit flat and the movables in the same are already
attached and thus the Attachment of warrant has been made absolute.
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The Applicant/ Intervener Bank also prayed for impleading them as a
party. It seems that the Applicant/ Intervener Bank is seeking relief
under the SARFAESI Act, 2002. As already discussed the Civil Court
cannot decide the said issue and the proceeding under SARFAESI Act
cannot be tried before the Civil Court. Civil Court does not have
jurisdiction to try the proceedings under SARFAESI Act., and therefore,
the question of impleading the intervener Bank in the present Execution
does not bear any substance. The Intervener Bank cannot recover
amount by way of this execution. The borrowers of the home loan from
the applicant/ Intervener Bank are not party to this Execution and
therefore, I proceed to pass the following order:
ORDER
1. The Notice of Motion No.339 of 2020 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 01/12/2021 City Civil Court, Gr. MUMBAI
Dictated on : 01-12-2021
Transcribed on : 02-12-2021
checked on : 03-12-2021
Signed on : 04-12-2021
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.12.2021 at 10.50 a.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of judgment/
order
01.12.2021
Judgment/order signed by P.O. on 04.12.2021
Judgment/order uploaded on 04.12.2021
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