Interim Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 1784/21 in Comm. Suit No. 63/2020. 1 Order.
MHCC010057882021
Presented on : 17-08-2021
Registered on : 17-08-2021
Decided on : 08-11-2021
Duration : 0 years, 2 months, 22 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1784 OF 2021
IN
COMMERCIAL SUIT NO. 63 OF 2020
Mr. Anand Chhaganlal Thakkar ...Plaintiff
Versus
Indiabulls Housing Finance Ltd.
CFM Asset Reconstruction Pvt. Ltd. & Another ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 8th NOVEMBER, 2021.
Mr. S.T.Manek, Advocate for the plaintiff.
Mr. Nikhil Rajani alongwith Ms. Jyoti Sanap, Advocate for defendant
no.1.
Mr. Himanshu Shinde, Advocate for defendant no.2.
ORDER
1. The plaintiff has filed present notice of motion for
restraining defendant no.1, his servants and agents from recovering the
balance installments due and payable by the plaintiff in respect of loan
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N/m No. 1784/21 in Comm. Suit No. 63/2020. 2 Order.
amount under Account No. CFMARC352050 (originally having Loan
Account No. HLAPLOW00352050) and from taking any coercive action
against the plaintiff for recovery of the said installments.
2. Perused notice of motion, affidavits in reply filed by the
defendants and rejoinder of the plaintiff. Heard learned counsel Shri
S.T.Manek for the plaintiff, learned counsel Shri Nikhil Rajani for
defendant no.1 and learned counsel Shri Himanshu Shinde for
defendant no.2.
3. Mother of the plaintiff namely Smt. Manjula had applied
and availed of loan amount of Rs.94,50,000/ from defendant no.1
(Indiabulls who has subsequently assigned rights and obligations to
CFM Assets Reconstruction Private Limited) against the flat premises as
mentioned in para 2 of the plaint with insurance premium payable by
installments. The plaintiff has given details of group accidental death
benefit policy with cover of Rs.79,01,572/ for basic plan and
Rs.50,00,000/ for Group Accidental Death Benefit Rider having term of
48 months for premium of Rs.1,00,000/ issued by defendant no.2
(Bharati Axa Life Insurance Company Limited) as pleaded in para 6 of
the plaint.
4. Learned counsel Shri S.T. Manek for the plaintiff submitted
that Smt. Manjula expired on 28/06/2018 on account of blood cancer.
Defendant no.2 was liable to pay loan amount to defendant no.1 on the
death of the plaintiff or of Smt. Manjula. The plaintiff had informed
defendants no.1 and 2 about death of Smt. Manjula. The plaintiff was
not liable to pay EMI in respect of the loan amount from the death of
Smt. Manjula. However, he paid loan installments from July 2018 to
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N/m No. 1784/21 in Comm. Suit No. 63/2020. 3 Order.
September 2019 on assurance of defendant no.1 that he will process the
claim with defendant no.2. Defendant no.2 by their email dated
30/08/2018 denied the claim by stating that Smt. Manjula was not
insured. By pointing out these aspects, learned counsel Shri S.T.Manek
submitted that defendant no.2 misused questionnaire submitted at the
time of obtaining the policy and no intimation was given regarding
issuance of the second policy to the plaintiff. Defendant no.1 cannot
compell the plaintiff to pay the loan amount. He prayed that notice of
motion may be allowed.
5. Learned counsel Shri Nikhil Rajani for defendant no.1
submitted that the plaintiff committed default in payment of loan
amount. Earlier Notice of Motion No. 1126/2020 is withdrawn.
Identical relief is sought in the present notice of motion. Right of
recovery of defendant no.1 is sought to be restrained. No overt act is
done by defendant no.1 for recovery and therefore, notice of motion is
not maintainable. He referred Section 34 of the Securitisation and
Reconstruction of Financial Assets and Enforcements of Security Interest
Act, 2002 (for short 'the Act') and submitted that no Civil Court has
jurisdiction to entertain any suit or proceeding in respect of any matter
which a Debt Recovery Tribunal (For short, ‘DRT’) or Appellate Tribunal
is empowered to determine and no injunction shall be granted by any
court. He further submitted that application can be filed before DRT
under Section 17 of the Act. Notice under Section 32 of the Act is given
to the plaintiff. He referred to page 25 of the plaint which is a
forwarding letter of the policy. He also referred the policy filed with the
plaint and submitted that no premium is paid towards policy of Smt.
Manjula. He further submitted that the plaintiff is the primary
applicant and not his mother Smt. Manjula as per two certificates of
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N/m No. 1784/21 in Comm. Suit No. 63/2020. 4 Order.
insurance filed by him on record with his affidavit in reply at page
no.22 and 36 regarding Loan Accounts No. HLAPLOW00352050 and
HLAPLOW00353055 respectively. He further submitted that it is the
plaintiff's loan and his mother is not concerned with the same at all.
According to him, the plaintiff has misguided to the Court. He prayed
that notice of motion may be dismissed.
6. Learned counsel Shri Himanshu Shinde for defendant no.2
submitted that no premium is paid in respect of policy issued to Smt.
Manjula and it is cancelled. Smt. Manjula had age of 69 years at the
time of taking the loan and defendant no.2 considered the aspect of
eligibility. Smt. Manjula is not covered under eligibility criteria.
According to him, life expectancy is considered while issuing policy.
Rejection of application was within knowledge of the plaintiff much
prior to the death of Smt. Manjula. Premium is recovered from the
plaintiff and his life is insured. Police is issued to the plaintiff in
October, 2017 and Smt. Manjula expired in June 2018. Responsibility
of defendant no.2 is restricted to the plaintiff. He prayed for dismissal
of the notice of motion.
7. After considering rival contentions and materials on record,
it is explicit that policy issued in favour of Smt. Manjula does not reveal
payment of premium. The said policy is issued on 13/09/2017. The
plaintiff has placed on record disbursal letter and repayment schedule
of the loan account showing name of his mother as borrower. Loan
sanction letter also reveals name of the plaintiff's mother as the
applicant. The plaintiff is shown as coapplicant.
8. Subsequently, two other policies are issued in favour of the
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N/m No. 1784/21 in Comm. Suit No. 63/2020. 5 Order.
plaintiff on 05/10/2017 and 30/08/2017. It is pertinent to note that
the policy dated 05/10/2017 is in respect of the same loan account
shown in the policy of Smt. Manjula and the plaintiff is shown as a
primary applicant. The plaintiff has placed on record the policy of his
mother in which details of premium are missing. It means that the
plaintiff was conversant about the contents in the policy of his mother
before her death. Considering overall material on record, the plaintiff
and his mother had applied for loan to defendant no.1 and insurance
policy came to be issued to the plaintiff's mother initially and to the
plaintiff subsequently. All these developments have taken place during
lifetime of the plaintiff's mother. The plaintiff is questioning
cancellation certificate of insurance issued regarding his mother’s
policy. The plaintiff denied to have received cancellation certificate of
insurance. He also denied to have intimation regarding policy dated
05/10/2017.
9. In the light of above discussion, issuance of the policy in
favour of the plaintiff in respect of the same loan account shown in the
policy of his mother is the factor affecting to the claim of the plaintiff.
All these developments have taken place during lifetime of Smt.
Manjula. Therefore, there is no scope to infer that any malpractices to
have been adopted for denying liability under the policy issued to the
plaintiff's mother Smt. Manjula. On the other hand, mother of the
plaintiff was old aged lady and she died of blood cancer as pleaded in
the plaint. Death of the plaintiff’s mother occurred within short span of
time after insurance policy is issued in her favour. All these are the
factors showing that the plaintiff has not approached the court with
clean hands.
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N/m No. 1784/21 in Comm. Suit No. 63/2020. 6 Order.
10. The plaintiff is at liberty to pursue the aspect of validity of
his mother's insurance policy before defendant no.2 and any other
appropriate forum. While doing so, defendant no.1 cannot be deprived
of his right to recover the loan amount. In the contingency of rejection
of the insurance claim, defendant no.1 is at liberty to follow the
procedure for recovery of balance loan amount. Defendant no.1 cannot
be trapped in dispute between the plaintiff and defendant no.2.
Defendant no.1 and defendant no.2 are the companies working in two
different areas i.e. Loan advancement and Insurance respectively and
they have their own criterias for processing the applications. Defendant
no.2 does not control rights of defendant no.1 and viceversa. In short,
securing the loan amount either of the plaintiff or his mother by
defendant no.2 cannot be taken as a absolute bar on Defendant no.1
from taking steps for recovery of the loan amount. In addition to it,
Section 34 of the Act prevents this Court from granting injunction in
respect of the matter which DRT is empowered to determine. For all
these reasons, I pass the following order :
ORDER
1. Notice of Motion No. 1784/2021 is dismissed.
2. The proceeding of N/m No. 1784/21 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 08/11/2021. Mumbai.
1. Dictated online on : 08/11/2021.
2. Signed on : 09/11/2021.
3. Delivered to Certified :
Copy Section on
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N/m No. 1784/21 in Comm. Suit No. 63/2020. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09/11/2021. 5.37 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 08/11/2021.
Judgment/Order signed by P.O. on 09/11/2021.
Judgment/Order uploaded on 09/11/2021.
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