Order 1

Order Details: Notice of Motion
Pdf Text: NM 1151/2018 IN STAMP 2836/2018 1
CNR NO.MHCC010036922018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1151 OF 2018
IN
STAMP NO.2836 OF 2018
M/s.Vast India Pvt.Ltd. & Ors. .. .. Plaintiffs
Versus
Union Bank of India & Anr. ...Defendants
Shri. Anup Khaitan advocate for the Defendants.
Shri. Ishwarlal Agarwal advocate for the Plaintiff.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt.Judge
CR no. : 32
Dated : 20th March, 2018
ORDER
1. Defendant No.1 taken out this motion for Rejection of plaint
under Order 7 Rule 11 of the Code of Civil Procedure.
2. Plaintiff has filed the suit challenging the action of the defendant
No.1 under SARFAESI Act, 2002. Under section 34 of the SARFAESI Act
– No Civil Court shall have jurisdiction to entertain any suit or
proceeding in respect of any matter which a Debt Recovery Tribunal is
empowered to determine and no injunction shall be granted by any
court or other authority in respect of any action taken in pursuance of
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any power conferred under this act. Plaintiff has to file appropriate
proceeding before the DRT having jurisdiction in the matter. Plaintiff
has filed the suit just to defeat and delay the amount due and payable
to the defendant No.1. As there is a express bar u/s.34 of the SARFAESI
Act, hence, plaint be rejected u/s.7 Rule 11 of CPC and suit be
dismissed.
3. Plaintiff has filed the reply only for limited purpose of opposing
the grant of any relief in favour of defendants. Plaintiff had denied each
and every averment made in the motion. The motion is required to be
dismissed for suppression of material facts and making the averments
made in the motion contrary to the order dated 07/03/2018. The issue
as to maintainability of suit has been framed by order dated
07/03/2018 and court is directed to lead evidence on the issue of
maintainability of suit and jurisdiction. Therefore, the objection as to
the bar on the jurisdiction u/s.34 of SARFAESI Act has already been
taken by the defendant No.1, hence, this issue again cannot be raised by
way of this separate motion. Hence, motion be dismissed with costs.
4. Heard Ld.advocate Shri.Khaitan for defendants and advocate
Shri.Agrawal for plaintiff.
5. It is settled law that only averments made in the plaint can be
looked into while deciding application for rejection of plaint. The
averment of the plaintiff is that defendant No.2 not disclosed that
plaintiff had issued a legal notice dated 08/02/2018 to the defendants.
Defendants by suppressing this fact obtained orders from the Additional
CMM, even if all the averments made in the plaint are proved, the
plaintiff would not be entitled to any relief.
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6. Section 34 of the SARFAESI Act provides express bar to the Civil
Court. After meaningful reading of the plaint, as it discloses no cause of
action and suit is barred by the provisions of SARFAESI Act, for this
purpose nothing except the averment made in the plaint can be
considered. As long as plaint does not disclose cause of action which
requires determination by this court. The action of the defendant is
according to law to recover the dues and not fraudulent, therefore, the
action taken by the defendant is certainly not permissible to bring the
matter before the Civil court.
7. In view of above discussion, from the averment no cause of action
arose for the plaintiff to file the suit before this court as suit is barred
by the specific provisions of the SARFAESI Act, hence, plaint is deserves
to be rejected.
ORDER
Notice of Motion No.1151/2018 is made absolute
in terms of prayer clause.
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
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/03/2018 at ( 5.07p.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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