Final Order 1

Order Details: Chamber summons
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Ch/sum. no. 490-19; In Suit no. 1544 of 2016
MHCC010024222019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.490 OF 2019
IN
SUIT NO.1544 of 2016
Mrs. Shakuntala Wd/o Mr. Nagaraj Gangamata ..Plaintiff
V/s
Mr. Pawankumar Madhukar Hedukar & Ors. ..Defendants.
A N D
GIC Housing Finance Limited ….Respondent/
Proposed Deft. no.3
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 18th DAY OF AUGUST, 2022
: Appearances:
Adv. Dube for plaintiff .
Adv. Tarik Umar for defendant no.2
Adv. Trupti for proposed defendant no.3
ORAL ORDER
The plaintiff has taken out present chamber summons for
joining respondent as party defendant no.3 in the present suit.
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Ch/sum. no. 490-19; In Suit no. 1544 of 2016
2. In short, it is contention of the plaintiff that, on
13.01.2017, the respondent /proposed defendant no.3 have pasted
possession notice under Sub Rule (1) of Rule 8 of Rules under
SARFAESI Act just outer wall of the suit premises. The respondent
informed the plaintiff that by pasting said notice, the authorized
officer from the office of respondent had taken symbolic possession of
the secured assets. Thus, in view of above change in facts and
circumstances of the case, it is necessary to make the respondent as
defendant no.3 in the present suit.
3. The respondent/ proposed defendant no.3 strongly
opposed the application by filing reply on affidavit. It is contended
that the present application is not maintainable in view of the bar
under section 34 of the SARFAESI Act.
4. It is further contended that, the plaintiff can preferred
appeal before the Debt Recovery Tribunal created under the Statue in
view of Section 17 of the SARFAESI Act. It is further contended that
the respondent has taken physical possession of the mortgage
property in view of the order passed by the Chief Metropolitan
Magistrate Court at Mumbai. Thus, the application being devoid of
substance and merits is liable to be rejected.
5. The defendant no.2 filed reply and thereby supported the
chamber summons of the plaintiff. He prayed to allow the same.
6. Heard the learned advocate Mr. Dube for the plaintiff
and learned advocate Mr. Tarik Umar for defendant no.2 and learned
advocate Trupti for the respondent. Perused the record.
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Ch/sum. no. 490-19; In Suit no. 1544 of 2016
7. Following points arise for my determination to which I
have recorded my findings with reasons as follows:
Sr.No. Points Findings.
1. Whether the plaintiff is entitled for the
reliefs claimed in chamber summons ?
Yes
2. What order ? As per final order.
REASONS
As to point no.1:
8. It is main contention of the plaintiff that, during
pendency of the suit, on 13.01.2017 the respondent has pasted
possession notice and took symbolic possession of the suit property.
The respondent did not dispute this fact. It is contention of the
respondent that in view of Section 34 of the SARFAESI Act, the suit is
not maintainable. It is further contended that in view of section 17 of
the SARFAESI Act the plaintiff can approach before the appellate
forum constituted under the Securitization Act.
9. Here it is to be noted that, the plaintiff has filed the suit
against the defendant no.1 for specific performance of the contract.
The defendant no.2 came to be added as intervenor, because he also
claimed right in the suit property. Now during pendency of the suit,
it reveals that the respondent had taken symbolic possession of the
suit property. Therefore, in my view the respondent is a necessary
and proper party to the suit. So far as contention of the respondent
regarding the tenability of suit is concerned, the respondent is at
liberty to file proper application after joining as a party to the suit.
Hence, in my view, the plaintiff has made out case for joining
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Ch/sum. no. 490-19; In Suit no. 1544 of 2016
respondent as a party defendant no.3 to the suit. Hence my answer
to point no.1 is in affirmative.
As to point no.2:
10. In view of my above discussions, I pass the following
order:
ORDER
Chamber summons No.490/2019 stands allowed and
made absolute in terms of prayer clause (a).
The plaintiff to carry out amendment within 14 days.
Chamber summons stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.18.08.2022 (C.R. No.1)
Dictated on : 18.08.2022
Transcribed on : 19.08.2022
Signed on :
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Ch/sum. no. 490-19; In Suit no. 1544 of 2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 19.08..202 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 18.08.2022
JUDGMENT/ORDER signed by P.O. on 19.08.2022
JUDGEMENT/ORDER uploaded on 19.08.2022
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