Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 838/18 STAMP 2836/2018 1
CNR NO.MHCC010029072018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.838 OF 2018
IN
STAMP NO.2836 OF 2018
M/s.Vast India Pvt.Ltd. & Ors. .. .. Plaintiffs
Versus
Union Bank of India & Anr. ...Defendants
Shri. Ishwarlal Agarwal advocate for the Plaintiffs.
Shri. Anup Khaitan advocate for the Defendants.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt.Judge
CR no. : 32
Dated : 20th March, 2018
ORDER
1. Plaintiff taken out this motion for
(a) Defendant No.1 and 2 , their servants, agents or anybody
claiming through them be restrained from taking the physical
possession of suit premises.
(b) The execution, operation and effect of the notice dated
28/02/2018 issued by defendant No.2 be stayed till the final disposal of
the suit.
2. The contention of the plaintiff is that – It was not disclosed by the
defendant No.2 that plaintiff had issued a legal notice dated
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20/02/2018 served on her on 21/02/2018. By the notice dated
20/02/2018 it was brought to the notice of the defendants No.1 and 2
that defendant No.2 is taking possession of the suit premises is illegal
and is in contempt of the order passed by Debt Recovery Tribunal II
Mumbai.
3. Defendant No.2 made a false statement that notice was issued to
the plaintiffs by Registered Post Acknowledgement Due. Defendant
No.2 made an application for extension of time of the writ of
commission but extension of time was obtained fraudulently by
suppressing the material facts from Additional Chief Metropolitan
Magistrate,Mumbai.
4. As per the order of DRT, it was mandatory for the defendant No.2
to give a 15 days prior notice for taking physical possession of suit
premises. But defendant No.2 purposely not disclosed the receipt of
legal notice dated 20/02/2018 from the plaintiff to her. Therefore,
order of extension for writ of commission was obtained by playing a
fraud.
5. Defendant No.2 had issued a notice dated 28/02/2018 for taking
the physical possession of suit premises on 21/03/2018 is an act
without following the due process of law and only for the purpose of
committing fraud on the powers vested with the defendant No.1 and 2
under the SARFAESI Act 2002. Once the plaintiff is illegally
dispossessed from the suit premises, then grave prejudice and
irreparable loss will be caused to the plaintiff. Under these
circumstances, it become just and necessary that the defendant No.1
and 2 be restrained from taking the possession of suit premises and the
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execution of the notice dated 28/02/2018 be stayed till the final
disposal of the suit.
6. Considering the averments in the motion, following points arise
for my determination and recorded my findings as per the reasons given
below.
POINTS FINDINGS
1. Whether plaintiff made out a
prima facie case in their favour?
In the negative
2. In whose favour balance of
convenience lies?
In favour of defendant
3. To whom greater hardship will be
caused if granted?
To the defendants
4. Does plaintiff entitled for temporary
injunction as prayed for?
In the negative
5. What Order? Notice of Motion dismissed
with costs.
REASONS
POINT Nos. 1 to 4
7. Grant or refusal of temporary injunction is the matter vested with
discretionary power of court. While passing interim order of
injunction court is required to consider 3 basic principles namely (i)
Prima facie case (ii) Balance of convenience and inconvenience
(iii) Irreparable loss and injury. Grant of refusal or injunction has
serious consequences depending upon the nature thereof and in dealing
with the said matters, court must make all endeavour to protect the
interest of the parties.
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8. As per order of Additional CMM advocate Smruti Bhavne was
appointed as a Court Commissioner to take over possession of the
secured asset and she has to give 15 days prior notice to the plaintiff.
Defendant No.2 had given notice dated 08/02/2018 on which she
wants to take possession on 23/02/2018. But that was not exactly prior
15 days, hence, Commissioner applies for extension of writ of
commission before the Additional CMM. Ask for extension of time by
defendant No.2 cannot be said to be a knowingly false representation
made her before Additional CMM, therefore, act of the defendant No.2
is not of deliberate deception with a design to secure something which
is otherwise not due.
9. Learned advocate Shri.Agrawal for plaintiff submitted that
defendants have obtained the order from Additional CMM by
suppressing material fact. As such, it appears plaintiff is aggrieved by
the measures taken by the defendants. For that purpose, appropriate
remedy was available for the plaintiff before DRT. Hon’ble Bombay
High Court in case of State Bank of India Vs. Jigishaben B. Sanghvi
2011(3) Bom.CR 187 ruled that, ‘if a person aggrieved by measures
taken by secured creditor u/s.13(4) of the SARFAESI Act , remedy is
equally made available to such person before the Tribunal or Appellate
Tribunal is empowered to determine any matter by or under this Act’. In
the light of said proposition appropriate remedy for plaintiff is available
before DRT, therefore, on this legal aspect, no prima facie case lies in
favour of plaintiff.
10. The conduct of the plaintiff is also required to be seen while
granting or refusing the relief. After the order passed by Additional
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CMM plaintiff had filed an application for recalling the order dated
15/12/2017, but that application was rejected. The order of DRT was
challenged by the plaintiff in Writ Petition No.2024/2018, that writ
petition was withdrawn on 07/02/2018. Plaintiff also filed Writ Petition
Stamp No.5686/2018 against the present defendants on 22/02/2018
and that is pending.
11. Plaintiff has placed reliance on:
1. Padma Ashok Bhatt Vs. M/s.Orbit Corporation Ltd.& Others
decided on 26/07/2017.
2. Bank of Baroda Vs. Shri.Ranjan Chetia decided on
08/09/2014.
3. Tayabbhai M. Bagasarwalla & Another Vs. Hind Rubber
Industries Private Limited Etc. Decided on 19/02/1997.
4. S.P Chengalvaraya Naidu Vs. Jagannath AIR 1994 853.
12. Before parting with the orders, the facts in the case at hand are
not identical with the facts mentioned in the above citation , therefore,
the ratio laid down is not applicable.
13. I have perused the order dated 15/12/2017 passed by Additional
CMM (vide Exh.5). It is specifically mentioned in the orders in para.
No.4 that learned Additional CMM has produced the documents
including the notice u/s.13(2) of the SARFAESI Act to the plaintiffs, its
postal receipts and acknowledgment etc., therefore, I do not found any
substance in the contention raised by the plaintiff. Both the defendants
against which relief is sought are the authorities who are taking action
against the plaintiffs as per the SARFAESI Act, therefore, no question
arise to stay the execution of notice dated 28/02/2018 issued by
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defendant No.2. In such eventuality, if temporary injunction is granted,
certainly, it will create hurdle in the way of bank to recover its dues.
Bank has already approached to the DRT and obtained the order to
recover the dues. Inspite of this, if interim relief for temporary
injunction is granted, then much injustice will cause to the bank.
Therefore, balance of convenience and irreparable loss also tilts with
defendant bank.
14. In view of above discussion, I answer point No.1 to 4 accordingly
and pass the following order.
ORDER
Notice of Motion No.838/2018 is dismissed with costs.
Date : 20/03/2018 (Pushpa N. Rao)
Ad hoc Asst.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 20/03/2018
Signed by HHJ on : 20/03/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/03/2018 at ( 5.05p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt. Pushpa N. Rao
(Court Room no.32)
Date of Pronouncement of JUDGMENT/ORDER 20/03/2018
JUDGMENT/ORDER signed by P.O.on 20/03/2018
JUDGMENT/ ORDER uploaded on 21/03/2018
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