Final Order 2

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.412/2020
MHCC010010352020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.412 OF 2020
(CNR NO.MHCC01-001035-2020)
IN
EXECUTION APPLICATION NO.120 OF 2015
IN
SUIT NO.814 OF 2013 (DISPOSED OF)
BHARATKUMAR JAGDISHPRASAD )
AGARWAL )...PLAINTIFF/
DECREE HOLDER
VERSUS
MR. KRISHNADAS KOROTH S/O. )
ANANDAN )...DEFENDANT/
JUDGMENT DEBTOR
AND
INDIA BULLS HOUSING FINANCE )
LTD., )...RESPONDENT/
OBJECTIONIST
Appearance :-
Learned Advocate O. A. Das for plaintiff/decree holder.
None for judgment debtor and objectionist.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15
DATE : 30/09/2023.
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..2.. NM No.412/2020
ORDER
1 The decree holder has come with the contention that as per
the decree passed in Suit No.814 of 2013, the defendant/judgment
debtor is required to pay an amount of Rs.15,12,835/- as on date of
filing of notice of motion. After filing the execution, the flat belonged to
the judgment debtor, came to be attached. The process of auction sale
was being carried out by the learned “Commissioner for Taking
Accounts” High Court Bombay. The objectionist India Bulls Housing
Finance Ltd., appeared there with the contention that the flat belongs to
judgment debtor, was secured against the loan advanced by the
objectionist as per the SARFAESI Act and the said flat is attached and
sold in auction. The objectionist received an amount of
Rs.1,35,25,000/- from the auction sale. The objectionist was having
recovery of amount of Rs.49,79,094/-, thus, it is the contention of
decree holder that surplus amount is lying with the objectionist and as
on today the decree holder is entitled to recover the amount of
Rs.20,18,835/-, including interest on principal amount till 31/08/2023
and prayed for direction to the objectionist i.e. India Bulls Housing
Finance Ltd., to deposit the said amount in the Court.
2 In response to the notice, the objectionist India Bulls
Housing Finance Ltd., appeared and filed their reply raising objection to
the contention of decree holder, contending that all the objections and
questions relating to the amount lying with the objectionist and
pertaining to the judgment debtor are forming part of the proceeding
pending for adjudication before the Debt Recovery Tribunal (DRT)
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under the provision of SARFAESI Act, and prayed for rejection of notice
of motion.
3 Heard learned advocate for decree holder. Advocate for
objectionist and judgment debtor remained absent when called.
4 It is not disputed that the surplus amount is lying with the
objectionist. In this situation the position of objectionist became as a
garnishee. The amount pertaining to the judgment debtor is lying with
the objectionist which is after satisfying its recovery claim, therefore,
the objectionist is not entitled to retain that amount unless there is any
claimed by the judgment debtor or its creditor. The decree holder being
its creditor having decree under the execution is entitled to recover the
amount deposited alongwith interest, therefore, I am of the view that
the decree holder is having right to receive the amount under decree
from the objectionist and direction to deposit the amount of recovery
under the execution in the Court by deducting from the surplus amount
lying with the objectionist. Hence, notice of motion deserves to be
allowed as follows :-
ORDER
1. Notice of Motion No.412/2020 in Execution
Application No.120/2015 in Suit No.814/2013, is
hereby allowed.
2. The objectionist India Bulls Housing Finance Ltd., is
hereby directed to deposit an amount of
Rs.20,18,835/- in the Court from the surplus amount
lying with the objectionist pertaining to the judgment
debtor within 1 month from the date of this order.
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3. Notice of Motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 30/09/2023 C.R. No.15
Dictated on : 30/09/2023
Transcribed on : 30/09/2023
Signed on : 03/10/2023
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“Certified to be true and correct copy of the original signed order”.
03/10/2023
at about 05.50 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 30/09/2023
Order signed by Hon'ble Judge on : 03/10/2023
Order uploaded on : 03/10/2023
at about 05.50 p.m.
Re-uploaded on : 10/10/2023
at about 11.03 a.m.
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