Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 103913 / 2023
Bipul – Sangli
Order (Exh.07)
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City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 84 – Summary Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010112412023
Notice of Motion Filed : 29.08.2023
Arguments Over : 09.04.2025
Decided on : 09.04.2025
Duration : 01 Y 07 M 12 D
Exhibit No.06
Suit No. 101037 / 2020
Notice of Motion No. 103913 / 2023
Plaintiffs 1 Mr. Bipul Sarma
2 Indrani Sarma
VERSUS
Defendants 1 Sangli Sahakari Bank Ltd.
2 Special Recovery Officer
3 Mangesh Pundalik Sawant
4 Sheetal Mangesh Sawant
5 Shivadharsh Housing Co-Op. Soc. Ltd.
Appearances
Plaintiffs
: Adv. Sailee Salvi
Defendant Nos.1 & 2
: Adv. Chacko Joseph
Notice of Motion for Release of Attachment.
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NM No. 103913 / 2023
Bipul – Sangli
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ORDER
(Pronounced on this 09th Day of April, 2025)
Plaintiffs have prayed to vacate the attachment of the
suit flat and to direct defendant Nos.1 and 2 to handover the
possession of the suit flat.
2) Plaintiffs, Bipul Sarna and Indrani Sarna (hereinafter,
P1
and P2) are husband and wife. P1-Bipul is serving as Senior
Manager with Airport Authority of India.
Defendant No.1, Sangli Sahakari Bank Ltd. is Bank.
Defendant No.2 Special Recovery Officer is its employee
(hereinafter,
D1 and D2).
Mangesh Pundalik Sawant and Sheetal Mangesh
Sawant, (hereinafter,
D3 and D4) are husband and wife and
borrowers of loan from D1-Sangli Bank.
Shivadharsh Housing Co-Op Society Ltd., Andheri (E),
Mumbai (hereinafter,
D5) is a Co-operative Society wherein Flat
No. B-102 (hereinafter,
Suit flat), is situated.
3) Through registered Agreement for Sale Dt. 24.09.2014,
plaintiffs purchased Suit flat for
₹.50,00,000/- (
₹.
Fifty Lakhs)
from D3-Mangesh and D4-Sheetal.
4) While purchasing flat in year 2014, plaintiffs took
proper search and scrutiny and found that, Suit flat is not under
any encumbrance.
5) Later on, plaintiffs got knowledge that on
06.01.2011,
D3-Mangesh and D4-Sheetal had already mortgaged the Suit flat
with D1-Sangli Bank against loan of
₹.75,00,000/- (
₹.
Seventy
Five Lakhs). Thereafter, D1-Sangli Bank and D2-Recovery
Officer attached the Suit flat. On
19.01.2018, the Learned Chief
Metropolitan Magistrate (hereinafter,
Learned CMM) handed
over the possession of the Suit flat to D1-Sangli Bank.
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Bipul – Sangli
Order (Exh.07)
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6) As on today, the Suit flat is vacant. It being unused, it is
getting damaged and is also causing inconvenience to other flat
owners. Plaintiffs have obtained loan for purchase of the Suit flat.
They are making payment of EMI, but are not in possession of
Suit flat. They being bonafide purchaser, are entitled for
possession of the Suit flat.
7) Hence, on 03.03.2020, plaintiffs preferred the present
Suit No.101037 / 2020 with relief as follows :
1. Declaration that, mortgage of Suit flat by D3-Mangesh
and D4-Sheetal in favour of D1-Sangli Bank is illegal
and not binding on plaintiffs.
2. Permanent injunction to restrain D1-Bank and D2-
Recovery Officer from proceeding against Suit flat in
execution of Recovery Certificate No.101 / 899 / 2014.
3. Mandatory injunction directing D1-Sangli Bank and
D2-Recovery Officer to vacate attachment of Suit flat.
Notice of Motion No. 103913 / 2023 (Dt. 29.08.2023) :
8) Plaintiffs prayed for directing D1-Sangli Bank and D2-
Recovery Officer to vacate attachment and handover possession
of Suit Flat.
Reply by D1 and D2 (Dt. 13.12.2023) :
9) D1-Sangli Bank and D2-Recovery Officer denied Notice
of Motion on the ground of falsity and prayed for its dismissal.
Points for determination :
10) Perused Record. Heard Adv. Sailee Salvi for plaintiffs
and Adv. Chacko Joseph for D1-Sangli Bank and D2-Recovery
Officer. Points for determination, findings and reasons are as
follows :
Points
Findings
1 Does plaintiffs prove prima-facie
case, balance of convenience and
possibility of irreparable loss?....... In the Negative.
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2 What Order? ……………………... As per final order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
11) Dates relevant for adjudication of Notice of Motion are
as follows :
06.01.2011 D3-Mangesh and D4-Sheetal mortgaged Suit flat
with D1-Sangli Bank for loan of .75,00,000/-.	₹
07.10.2014 Recovery Certificate No.101 / 899 / 2014 issued by
Learned Assistant Registrar, Co-Operative
Societies, Mumbai.
24.09.2014 Suit flat purchased by plaintiffs from D3-Mangesh
and D4-Sheetal for .50,00,000/-.	₹
19.01.2018 In proceedings (Case No.363 / SA / 2017) initiated
by D1-Sangli Bank against D3-Mangesh, the
Learned Chief Metropolitan Magistrate handed the
possession of attached Suit flat to D1-Sangli Bank.
03.03.2020 Present Suit filed by plaintiffs.
No service on D3-Mangesh and D4-Sheetal :
12) Nothing is brought to the notice of the Court, which will
point that the plaintiffs had taken cogent steps to effect service of
Suit Summons on D3-Mangesh and D4-Sheetal, who are the main
borrowers and who appears to have played fraud with plaintiff.
No explanation is forthcoming from plaintiffs as to why
there is no service on D3-Mangesh and D4-Sheetal.
No Action against D3-Mangesh and D4-Sheetal :
13) It is not the case of plaintiffs that they have initiated
suitable proceedings against D3-Mangesh and D4-Sheetal.
Plaintiffs have also not provided any explanation as to why they
have not initiated any proceedings against D3-Mangesh and D4-
Sheetal regarding alleged fraudulent transaction.
Summary Court is not Appellate Authority :
14) Suit flat appears to have been attached in view of
Recovery Certificate Dt.07.10.2014, issued by the Learned
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Assistant Registrar, Co-operative Societies, Mumbai.
Further, on 19.01.2018, possession of Suit flat is handed
over by the Learned CMM to the D1-Sangli Bank.
In present Suit, plaintiffs are not challenging Order of
the Learned Assistant Registrar or Order of the Learned CMM,
through which Suit-flat came to be attached and its possession
was handed over to D1-Bank
Most importantly, this Court is not an Appellate Court
to the Office of the Learned Assistant Registrar and so also to the
Court of Learned CMM.
Hence, this Court, in given facts and circumstances
cannot interfere in the Orders passed by these two authorities.
No Appeal before appropriate authorities :
15) It is not case of plaintiffs that, the Order Dt.07.10.2014
(of Learned Assistant Registrar) and Order Dt.19.01.2018 (of
Learned CMM) is challenged by plaintiffs before the Appellate
Authority of Co-Operative Societies or before the Sessions Court
or before the Hon’ble High Court.
No explanation is forthcoming as to why plaintiffs have
not subjected those two Orders to its respective Appellate
Authorities.
Conclusion :
16) In given facts and circumstances, pleading of plaintiffs,
will not be sufficient to interfere in the Orders of Learned
Assistant Registrar and Learned CMM. Hence, it is held that,
plaintiffs failed to prove prima-facie case, balance of convenience
and possibility of irreparable loss. Therefore, the Notice of
Motion cannot be considered at this stage. Plaintiffs are at liberty
to take appropriate steps at appropriate time. Accordingly, Notice
of Motion is rejected by following Order :
ORDER
1. Notice of Motion No. 103913 / 2023, is dismissed.
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2. Proceeding of Notice of Motion No. 103913 / 2023 is
closed.
3. Order dictated and pronounced in Open Court.
4. Record of Notice of Motion No. 103913 / 2023 shall be
part and parcel of main Suit No. 101037 / 2020.
Mumbai
Dated : 09.04.2025 (Vijay S. Hingne)
Additional District Judge,
Court Room No.84 – Summary Court
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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