Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1305/2020 in Comm. Suit No. 450/2020. 1 Order.
MHCC010038922020
Presented on : 03-09-2020
Registered on : 03-09-2020
Decided on : 17-03-2021
Duration : 0 years, 6 months, 14 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1305 OF 2020
IN
COMMERCIAL SUIT NO. 450 OF 2020
Mr. Kunal Jiwarajka and Others ...Plaintiffs
Versus
YES Bank Limited ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 17th MARCH, 2021.
Ms. Megha Gupta, Advocate for Plaintiffs.
Ms. Anamika, Advocate for Defendant.
ORDER
This is a motion taken out by the defendant bank for
rejection of plaint under Order 7 Rule 11 (a) and (d) of CPC. Perused
reply submitted by the plaintiff.
2. Learned Adv. Anamika for the defendant submits that there
is no cause of action arose to file present suit. Plaintiff has submitted
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N/m No. 1305/2020 in Comm. Suit No. 450/2020. 2 Order.
this suit relying on the Master Circular challenging the Show Cause
Notice issued by the defendant bank dated 12/12/2019. In view of
mortgage deed dated 27/06/2017, Flat No.701 and 801 situated at
Santacruz (West) has been mortgaged by the plaintiff. According to
defendant bank, for providing fair opportunity to the plaintiff prior to
declaring fraud and willful defaulter, a Show Cause Notice came to be
issued by the defendant bank. It is prayed to reject the plaint.
3. Learned Adv. Megha Gupta for the plaintiffs submits that
issuance of Show Cause Notice is enough ground to present the suit.
Defendant bank has initiated procedure to declare the plaintiff as willful
defaulter. The requisite documents are not annexed with Show Cause
Notice. Therefore, issuance of Show Cause notice in itself is challenged
by the plaintiff. It is requested to peruse detail order of this Court in
Notice of Motion No. 1220/2020 dated 29/09/2020. It is prayed to
reject the motion.
REASONS
4. On perusal of record, defendant bank has issued two Show
Cause Notices dated 12/12/2019 and 30/01/2020. It is not disputed
that plaintiff has executed mortgage to the consortium of banks on
28/12/2018 and some properties came to be mortgaged by the plaintiff.
It is substantial contention of the defendant bank that Show Cause
Notice cannot be termed as “Cause of Action”. Perused written notes of
arguments submitted by plaintiff vide Exh.8 and written notes of
arguments submitted by defendant vide Exh.9. On perusal of list of
caselaws vide Exh.9, ratio laid down in following three caselaws is
already referred by my learned Predecessor in Notice of Motion No.
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N/m No. 1305/2020 in Comm. Suit No. 450/2020. 3 Order.
1220/2020 dated 29/09/2020 in paragraphs no.23, 24 and 28 i.e.
(a) A.C.Muthiah V/s. Board Of Control For Cricket In India And
Another [(2011) 6 Supreme Court Cases 617],
(b) Salil Kumar Mukherjee and others V/s. Hindusthan Steel Ltd.
And others 1978 SCC OnLine Cal 290 and
(c) Union Of India And Another V/s. Kunisetty Satyanarayana
[(2006) 12 Supreme Court Cases 28].
5. All grounds in present notice of motion came to be
considered by my learned Predecessor in order in Notice of Motion No.
1220/2020 dated 29/09/2020 and granted interim relief against the
defendant.
6. Aforesaid order is challenged by the defendant and petition
is in process of scrutiny before the Hon'ble High Court. I find substance
in submission of learned advocate for plaintiff that issuance of Show
Cause Notice without any sufficient grounds in itself is a cause of action
in present suit.
7. Considering all facts on record, my learned Predecessor has
granted interim injunction in favour of plaintiff by detail order dated
29/09/2020. Therefore, it would be appropriate to dispose off the suit
by framing issues and hearing at length upon evidence of both side. In
respect of tenability of the Show Cause Notice, it is already considered
by my learned Predecessor in order dated 29/09/2020. It is challenged
by the defendant before the Hon'ble High Court. Learned advocate for
defendant bank has submitted that petition is preferred by the
defendant bank and it is registered and it is under process of scrutiny
before the Hon'ble High Court. In short, there is no substance in
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N/m No. 1305/2020 in Comm. Suit No. 450/2020. 4 Order.
motion. Resultantly, it deserves to be rejected. Hence, the order :
ORDER
1. Notice of Motion No. 1305/2020 stands dismissed.
2. Parties to complete the pleading and submit draft issues to
expedite hearing.
3. N/m No. 1305/2020 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 17/03/2021. Mumbai.
1. Dictated on : 17/03/2021.
2. Transcribed on : 20/03/2021.
3. Signed on : 23/03/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/03/2021. 3.05 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 17/03/2021.
Judgment/Order signed by P.O. on 23/03/2021.
Judgment/Order uploaded on 23/03/2021.
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