Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.1457/2019
MHCC010038252019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1457 OF 2019
(CNR NO.MHCC01-003825-2019)
IN
S. C. SUIT NO.737 OF 2019
Anila Shantaram Mohinekar and another )...Plaintiffs
Versus
Bharat Co-operative Bank Ltd. and others. )...Defendants
Appearances :-
Learned Advocate M. A. Adenwala for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15
DATE : 24/08/2023.
ORDER
1 This notice of motion is taken out by the plaintiffs seeking
temporary injunction that defendants be restrained from acting upon
the mortgage deed executed by Sharnita Gautam Karunasagar in favor
of defendants and restraining the defendants from disturbing his
possession.
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2 The subject matter of the suit and this notice of motion is
described as below -
“Flat No.213, (Shalimar Building) Shalimar Co-operative
Housing Society Ltd, Lala Nigam Road, Colaba, Mumbai
– 400 005 situated on Plot No.7 C.T.S. No.501 of Colaba
Division, Registration District Sub District Mumbai City
in Municipal Ward A of Municipal Corporation of
Greater Mumbai.”
3 The plaintiffs are claiming themselves as protected tenants
of one Sharnita Gautam Karunasagar. It is their contention that they are
in possession of suit flat since 1978, being tenant. The defendants have
advanced loan to landlord Sharnita Gautam Karunasagar having full
knowledge that these plaintiffs are in occupation of the suit flat being
tenants. Now they came to know that their landlord has not repaid the
loan properly and the defendants are intending to initiate proceedings
for foreclosure of mortgage and intending to take action as per the
mortgage deed. Having apprehension of dispossession at the hands of
defendants, they filed instant suit for declaration regarding the
mortgage executed in between defendants and landlord of plaintiff i.e.
Sharnita Gautam Karunasagar claiming that it is not binding on these
plaintiffs and they are having possessory right over the suit flat. Further,
directing the defendants not to take any action on the basis of such
mortgage deed. In the same way the instant notice of motion is filed for
restraining the defendants from taking action or acting upon, enforcing,
applying for foreclosure on the basis of alleged mortgage during
pendency of the suit, and restraining the defendants from disturbing
their possession.
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4 The defendants appeared and filed their reply resisting the
contention, contending that the defendants have already taken symbolic
possession of the suit flat. The Memorandum of Entry Recording
Deposit of Title Deeds dated 22/03/2016, is executed in favor of
defendants. They further contended that the borrower i.e. Sharnita
Gautam Karunasagar is in collusion with the plaintiffs to avoid the
recovery of loan as defendant No.1 has initiated recovery proceedings
against the borrower Sharnita Gautam Karunasagar under the
provisions of SARFAESI Act. It is further contended that this Court has
no jurisdiction to entertain the suit. As per the SARFAESI Act, the Debt
Recovery Tribunal (DRT) is having every right.
5 Heard learned advocate for the plaintiffs. Learned advocate
for defendants remained absent when called. Learned advocate for
plaintiff relied on the following judgments :-
Judgments Reported
Sahebgauda (dead) by LRs. and
others Vs. Ogeppa and Others
Appeal (Civil) 1352-53 of 1993
by Hon’ble Supreme Court
S. S. Fruits Vs. Inspector of
Police
C.R.P. (PD) No.4276 of 2009 by
Hon’ble Madras High Court
Kumkum Tentiwal Vs. State of
U.P. and 3 others.
Writ- C No.-38578 of 2018 by
Hon’ble Allahabad High Court
Vishal N. Kalsaria Vs. Bank of
India and others
Criminal Appeal No.52 of 2016
by Hon’ble Supreme Court
Rajkot Nagarik Shahkari Bank
Ltd. Vs. Jignesh Jayantilal
Ramanuj and another
MANU/GJ/0524/2011 by
Hon’ble Gujarat High Court
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6 I have gone through all these cited cases. The observations
therein are based on the facts and circumstances of that particular case
and dealing with the general jurisdiction of Civil Court to decide all
types of civil disputes. However, in the case of Bank of Baroda Vs. Gopal
Shriram Panda reported in 2021 SCC OnLine Bom 466, the Hon'ble
High Court has clearly held that Debt Recovery Tribunal has jurisdiction
to try and decide all the disputes relating to the loan transaction and
properties involved as per the section 13 and 17 of SARFAESI Act,
which exclude the jurisdiction of Civil Court.
7 In the instant case, the plaintiffs are seeking declaration
regarding mortgage deed executed by the borrower/landlord in favour
of bank i.e. defendants, which is relating to the loan transaction, thus,
definitely it comes under the purview of section 13 and 17. Therefore,
any suit for declaration in respect of document of loan transaction
which is before DRT, cannot be entertained by the Civil Court.
Moreover, the present plaintiffs are not party to the said mortgage deed.
Plaintiffs are claiming themselves as protected tenants, therefore, they
are required to approach appropriate forum. Thus, the suit is basically
not tenable.
8 It seems that the plaintiffs want to protect their possession
but there is nothing on record to show that the defendants have tried to
dispossess them by man handling. Definitely, the defendants are having
legal right to proceed against the borrower, to recover the loan amount
and to act upon the mortgage deed by taking legal recourse of
provisions of law. Granting reliefs sought, would amount that
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defendants are being prevented from taking recourse of legal process,
which is specifically prohibited as per the provisions of section 41 of the
Specific Relief Act. Had their been relief sought by the plaintiff in the
suit, that they should not be dispossessed without following due
procedure of law, then it could have been considered. But, no such relief
is sought, therefore, I am of the view that notice of motion is devoid of
merit. In the result, I proceed to pass the following order:-
ORDER
1. Notice of motion No.1457/2019 in S. C. Suit
No.737/2019, is hereby dismissed.
2. Costs in cause.
3. Notice of motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 24/08/2023 C.R. No.15
Dictated on : 24/08/2023
Transcribed on : 25/08/2023
Signed by HHJ on : 28/08/2023
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“Certified to be true and correct copy of the original signed order”.
28/08/2023
at about 04.25 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 24/08/2023
Order signed by Hon'ble Judge on : 28/08/2023
Order uploaded on : 28/08/2023
at about 04.25 p.m.
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