Order 1

Order Details: Notice of Motion
Pdf Text: NM No.505/18 ..1.. Stamp No.1982/18
CNR No.MHCC010018802018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.505 OF 2018
IN
SUIT STAMP NO.1982 OF 2018
M/s Vikram Computec
Through its proprietor Shri Pravin Jain .. Plaintiff
Versus
Board of Directors of
Central Bank of India and Ors. .. Defendants
Learned Advocate Mathew Nadumpara for plaintiff
Learned Advocate O. A. Das for defendant Nos.1 to 4
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 07th April, 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 No.B/302, 'B' Wing situated on 3rd Floor of Amarnath
CHSL, Sudam Nagar, Near Jain Temple, Bhayander (W), Thane more
particularly described in prayer clause (b) to Notice of Motion is the
subject matter of present suit. (hereinafter referred to as the 'suit
flat'). As per plaintiff, defendant company failed to release the fund in
time in favour of plaintiff proprietary. Further interest is charged at
higher rate. Therefore business of plaintiff company is totally ruined.
Plaintiff added that account of plaintiff is declared as NPA behind the
back of plaintiff proprietary and without following due procedure and
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guidelines. The notice under section 13 (2) of SARFAESI Act is not
served on plaintiff. Then notice under section 13 (4) is issued without
any authority. Then forceful possession is directed by an order dated
07/12/2017. This constrained him to file present suit and notice of
motion for protection of possession.
3. By filing reply defendant No.1 to 4 have raised strong
objection. To them, jurisdiction of this Court to try and entertain
present suit is ousted under section 34 of SARFAESI Act. Therefore this
court can not grant relief of injunction in favour of plaintiff. They
added that the action taken by bank under SARFAESI ACT is already
challenged before DRT and before Hon'ble High Court by plaintiff. No
relief is granted by them in favour of plaintiff. Thereafter plaintiff has
filed present suit before this court to delay the action under SARFAESI
Act. They put up the story that bank has sanctioned credit facility of
Rs.75,00,000/ in favour of plaintiff company. Against that suit
property is mortgaged by its owners namely Mrs. Kamlaben Jain and
Popatlal Jain. The loan account is declared as NPA and proceeding is
initiated under SARFAESI Act by following due procedure of law.
Symbolic possession is also taken on 21/10/2016. All the notices issued
are returned under the remark 'unclaimed'. In spite of this on the
ground of notices plaintiff has filed present false suit against defendant.
Hence plaintiff is not entitled for equitable relief of temporary
injunction. On all these grounds defendant nos.1 to 4 prayed for
dismissal 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 :
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POINTS FOR DETERMINATION FINDINGS
1. Whether plaintiff proves prima
facie case to grant interim relief of
temporary injunction ?
.. .. In the negative
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 notice dated
07/12/2017 below Exh.A. As against this, defendant relied on copy of
order in I.A. No.657/2017 below Exh.1, copy of orders in Writ Petitions
below Exh.2 and Exh.3 and authority letter below Exh.4.
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.
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 factual
aspect.
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7. Admittedly, proceeding started under section 13(2) and 13(4)
of SARFAESI Act is challenged by plaintiff in this suit. It is contention
of plaintiff that he is neither guarantor nor borrower. It is his further
contention that no notices are served on plaintiff. Further RBI
guidelines are not followed by bank while declaring the account as NPA
and while starting the proceedings under SARFAESI Act. Therefore, the
act of defendant bank is in gross violation of mutual contract.
Therefore this court is having jurisdiction to grant interim relief of
temporary injunction. However, this contention do not bring the case
of plaintiff within the ambit of prima facie case.
8. Because defendant bank has already initiated action against
plaintiff under section 13(2) and 13(4) of SARFAESI Act. In such
eventuality, 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 SARFAESI 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 i.e. plaintiff has
failed to make out prima facie case in his favour.
9. Stepping ahead appropriate remedy is also available before
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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
borrower and the 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 plaintiff has
failed to prove prima facie case in his favour.
10. Pertinent to note that the plaintiff has already availed remedy
provided under SARFAESI Act by filing application before DRT and by
filing Writ Petition before Hon'ble High Court. It shows that no interim
relief is granted by those authorities to the plaintiff. The contention
raised in present suit are already raised before the appropriate forum.
After considering this the appropriate forum has refused to grant
interim relief. In such eventuality plaintiff is not entitled for equitable
relief of temporary injunction.
11. At this juncture 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 defendant bank. In that light, balance of convenience and
irreparable loss also tilts with defendant bank.
12. Before parting with order as stated earlier conduct of party is
required to be taken into consideration while granting or rejecting
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equitable relief of temporary injunction. In this suit perusal of
document show that plaintiff has already knocked doors of justice by
taking recourse to available remedy before DRT and Hon'ble High
Court. When no relief is granted to borrower by appropriate forum
present plaintiff has approached this Court and prayed for similar
reliefs. This conduct of plaintiff prima facie bring into light an attempt
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
require to be imposed on plaintiff for causing delay in action of
defendant bank.
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:
ORDER
Notice of Motion No.505 of 2018 stands dismissed with cost of
Rs.10,000/ by plaintiff to defendant Bank.
(Pronounced in Open Court)
(Smt. U. L. Joshi)
Judge
City Civil & Sessions Court,
Date : 07/04/2018 Gr. Bombay
Typed on : 07/04/2018
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.04.2018, 4.55 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
07.04.2018
JUDGMENT/ORDER signed by P.O.
on
13.04.2018
JUDGMENT/ORDER uploaded on 13.04.2018
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