Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 952/18 in St.No. 7449/17 . 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 952 OF 2018
(CNR NO. MHCC010031592018)
IN
STAMP NO. 7449 OF 2017
M/s. Star Enterprises ...Plaintiffs
Versus
Special Recovery Officer, Jankalyan Sahakari
Bank Ltd. & Others ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 26th SEPTEMBER, 2019.
Mr. C.J.Joveson, Advocate for Plaintiff.
Ms. Nilima Sarvgod, Advocate for Defendant No.1.
ORAL ORDER
This is a motion taken out by plaintiff challenging legality
of Award passed by the Deputy Registrar under Section 101 of The
Maharashtra Cooperative Societies Act (M.C.S.A.), 1960 dated
16/03/2016.
2. There is no reply filed by defendant bank.
3. Ld. Advocate Joveson for plaintiff submits that the Deputy
Registrar of Cooperative Society do not vest with the power to decide
the issue between plaintiff and bank being involved with question of
facts and law. Plaintiff was a surety to the loan of Mr. Sanjeev Tejwani.
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N/m No. 952/18 in St.No. 7449/17 . 2 Order.
The loan of Rs.2 Crores was prayed and assured by the bank. However,
the bank has sanctioned and disbursed the loan of Rs.1.15 Crore only.
Therefore, there was huge loss caused to the plaintiff.
4. Ld. Advocate Joveson requested to peruse reply filed by
plaintiff before the Deputy Registrar, annexed in this file vide Exh.B
from Page No.28 to 42. It is mentioned that the bank was at fault for
loan was not sanctioned in time, which resulted to the loss caused to
the plaintiff and borrower. It is claimed for temporary injunction
against defendants 1 and 2.
5. Ld. Advocate Nilima Sarvgod for defendant no.1 submits
that defendant no.3 is the Governor of R.B.I. Defendant no.4 is the
State of Maharashtra. There is no statutory notice under Section 80 of
CPC came to be issued to defendants 3 and 4. It is added that
defendant no.2 Deputy Registrar of the Cooperative Societies declared
the Award dated 16/03/2016 which is the quasi judicial authority.
Therefore defendants 2 to 4 are not necessary party in the proceeding.
6. Ld. Advocate Nilima Sarvgod requested to peruse order of
the Hon'ble High Court in W.P.No. 12358/2018 dated 26/10/2018. It
is requested to peruse operative part wherein the cost of Rs.50,000/
came to be imposed by the Hon'ble High Court for concealment of facts
and orders.
7. It is material to note that ld. Advocate Joveson for plaintiff
was appeared before the Hon'ble High Court in W.P.No. 12358/2018.
However, he failed to mention what order is passed by the Hon'ble High
Court in aforesaid writ petition dated 26/10/2018.
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N/m No. 952/18 in St.No. 7449/17 . 3 Order.
8. It is to note that in aforesaid writ petition, the Award dated
16/03/2016 was not challenged. In paragraph no.4 it is observed by
the Hon'ble High Court that same order was challenged by the plaintiff
in W.P.No. 4789/2018, wherein plaintiff was directed to deposit 50% of
the recovery certificate amount. However without complying impugned
order, plaintiff has preferred W.P.No. 12358/2018, therefore the
Hon'ble High Court was pleased to impose cost of Rs.50,000/. It is
further observed in para 3 and 8 of the judgment of the Hon'ble High
Court that plaintiff/petitioner has an alternate remedy under Section
154 of the said Act to file revision. It is important to note that in
absence of notice under Section 80 of the CPC, suit is not tenable
against defendants 3 and 4. The suit is bad for misjoinder of
defendants 3 and 4.
9. Ld. Advocate Nilima for bank informed that a property of
defendants came to be attached and possession of flat was taken by the
bank in the procedure of recovery. It is surprising to note that plaintiff
has avoided to furnish proper details.
10. On perusal of present notice of motion and reply filed
before Deputy Registrar, there are no averments that loan of Rs.2
Crores was claimed, however the loan of Rs.1.15 Crore was sanctioned
by the bank.
11. The para no.7 and 8 of the order in W.P.No. 12358/2018
dated 26/10/2018 is reproduced for ready reference.
“7. Bare reading of those prayer clauses, show that
on the same footing and same prayers, the
Petitioner has filed the present Writ Petition
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N/m No. 952/18 in St.No. 7449/17 . 4 Order.
without complying with the order dated
17.04.2018 passed in Writ Petition No.4789/2018
i.e. deposit of 50% of the amount mentioned in the
recovery certificate. The order dated 17.04.2018
shows that the learned counsel for the Petitioner,
after taking instructions from his client Mr. Sanjiv
Tejwani, made a statement that they would deposit
the said 50% amount. Instead of complying with
the said order, they made a Civil Application for
review and recall of the said order.”
“8. Apart from these facts, the Petitioner has an
alternate remedy u/s.154 of the said Act to file
Revision Application. Considering these facts and
as an alternate remedy is available to the
Petitioner, we do not find any reason to entertain
the Writ Petition. Not only that, earlier the
Petitioner has filed Writ Petition No.4789/2018 for
the same cause of action which is pending and in
spite of that the Petitioner has filed the present
Writ Petition, therefore, we are of the opinion that
the Petitioner must pay cost of Rs.50,000/.”
12. It is to note that respondent no.2 Mrs. Karina Ferwani, wife
of borrower is failed to appear or to challenge the order of Deputy
Registrar. It is to note that respondent no.3 Sanjeev Tejwani is not
made party in the present proceeding. It clearly shows that plaintiff is
choosing forum, one after another to challenge the Award dated
16/03/2016. In short, there is no substance in motion.
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N/m No. 952/18 in St.No. 7449/17 . 5 Order.
13. In CIS it shows that Motion No. 1352/2018 is registered by
plaintiff but the original is not tendered. There is no explanation given
by ld. Advocate for plaintiff for not producing the original Notice of
Motion No. 1352/2018. Ld. Advocate Joveson sought for time to
produce Notice of Motion No. 1352/2018.
14. Considering all above aspects, Notice of Motion No.
952/2018 stands dismissed. Notice of Motion No. 1352/2018 before
registration stands dismissed. The suit at Stamp No. 7449/2017 stands
rejected before registration and during stage of objection as the suit is
not tenable in present form. Hence the order :
ORDER
1. Notice of Motion No. 952/2018 stands dismissed.
2. Notice of Motion No. 1352/2018 stands dismissed prior to
registration.
3. Suit at Stamp No. 7449/2017 stands rejected before
registration.
4. Plaintiff is directed to comply the order of the Hon'ble High
Court dated 26/10/2018 i.e. to deposit cost of Rs.50,000/
(Rupees Fifty Thousand Only).
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 26/09/2019. Mumbai.
1. Dictated on : 22/08/2019.
2. Transcribed on : 27/08/2019.
3. Signed on : 26/09/2019.
4. Delivered to Certified :
Copy Section on
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N/m No. 952/18 in St.No. 7449/17 . 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/09/2019. 4.39 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 26/09/2019.
Judgment/Order signed by P.O. on 26/09/2019.
Judgment/Order uploaded on 30/09/2019.
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