Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion
No. 1509 of 2018
MHCC010047282018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1509 OF 2018.
IN
Suit (St.)No.12794 of 2017.
2.Baroda Gujrat Gramin Bank.
3.Authorised Officer.
4.Baroda Gujrat Gramin Bank . ..Applicants/
(Deft Nos.2 to 4)
In the matter between
M/s. Shree Auto Marketing …Plaintiff
V/s.
1.Board of Directors Bank of Baroda and Ors. ...Defendants
Appearance:
Adv. Mr. Mahamuni for Plaintiff.
Adv. Mr. Anant Shinde for Defendant Nos. 2 to 4..
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 04st JULY, 2022.
1
-- 1 of 7 --
Order on Notice of Motion
No. 1509 of 2018
ORDER
This Notice of Motion is taken out by defendant Nos.2 to 4
to reject the plaint under Order 7 Rule 11 of the Code of Civil
Procedure, 1908 (in short 'CPC') on the ground that the suit is barred by
the provisions of the Recovery of Debts Due to Banks and Financial
Institution Act (In short 'RDDB Act') and the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act 2002, (In short ' SARFAESI Act').
2. Defendant Nos.2 to 4 has contended that the Debt Recovery
Tribunal II of Ahmedabad has passed final Order and Judgment in
O.A.No.202 of 2001 in July 2017 and execution proceeding are initiated
for recovery of the dues against the plaintiff vide Recovery Proceeding
Order No.349 of 2017. Demand notice has been served upon the
plaintiff. The plaintiff is challenging the said order in the suit. The
plaintiff is well aware that if appeal is preferred against the said order,
plaintiff is required to deposit minimum 25% of the decretal amount.
An amount of Rs. 35,90,00,000/ as on 31.12.2017 approximately is
due and payable by the plaintiff to defendant No. 1Bank and the suit is
filed only with a view to avoid the payment.
3. It is further contended that in view of the reliefs claimed in
the suit, this Court has no jurisdiction as per express bar under Section
17 and 18 of the RDDB Act and Section 34 of the SARFAESI Act.
Plaintiff has arraigned defendant Nos.6 to 10, which are Government
Officials. Neither notice under Section 80 of CPC is issued to them
before filing of the Suit nor leave to file suit without notice is obtained
by the plaintiff. On this ground as well the suit is barred. Ultimately, it
2
-- 2 of 7 --
Order on Notice of Motion
No. 1509 of 2018
is prayed that the plaint be rejected under Order 7 Rule 11(d) of CPC.
4. Despite of service of the Notice of Motion, plaintiff failed to
file reply to the Notice of Motion. Therefore, Notice of Motion
proceeded without reply of the plaintiff. Plaintiff even failed to argue
on the Notice of Motion.
5. In view of the contentions raised in the Notice of Motion,
following points arise for determination, to which I record my findings
for the reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether plaint is barred under
Order 7 Rule 11(d) of CPC? Yes
2. Whether the plaint is liable to
rejected? Yes
3. What order? Notice of Motion is
allowed.
REASONS
As to Point Nos.1 to 3:
6. Heard Ld. Adv Shri Shinde for defendant Nos.2 to 4.
Perused the Notice of Motion, supporting affidavit and the plaint.
7. The plaint reveals that the plaintiff has availed credit
facilities from the defendant No.1 Bank. It is alleged in the plaint that
defendant No.1Bank failed in its obligations under the contract and
committed gross breach of contract causing the injuries to the plaintiff.
It is also pleaded in the plaint that defendant No.1Bank has invoked
3
-- 3 of 7 --
Order on Notice of Motion
No. 1509 of 2018
Section 13 of the SARFAESI ACT as well as Section 19 of RDDB Act.
8. It is the grievances of the plaintiff that Debt Recovery
TribunalII at Ahmedabad, without following the principals of natural
justice conducted inquiry without considering the claim of the plaintiff
against the defendantBank. Therefore, the plaintiff is challenging
basically the order of Debt Recovery Tribunal II of Ahmedabad in O.A
No. 202/2001 dated 17.07.2017.
9. Another ground to challenge the proceedings of DRT
against the plaintiff is that the loan was sanctioned to a minor and this
fact is not considered by the Debt Recovery TribunalII, Ahmedabad.
Therefore, plaintiff claims that the order passed by the Debt Recovery
TribunalII, Ahmedabad is not legal and proper.
10. The plaintiff further pleaded the various guidelines issued
by the Reserve Bank of India in Master Circular in respect of MSMEs are
not followed by the Defendant No.1Bank. It is also averred that as per
Article 323D of the Constitution of India, Company Law Tribunal (in
short CLT), DRT, DRAT and authorized officers under SARFAESI Act are
ultra vires to the Constitution. Therefore, jurisdiction of the Civil Court
is not barred. Plaintiff further claims that no amount is due and payable
to the defendant No.1Bank from the plaintiff. The suit is not in respect
of any act purportedly done by Government Officers in their official
capacity. Therefore, notice under section 80(1) of CPC is not necessary.
11. On the basis of the above pleadings, the plaintiff has prayed
for various reliefs including declaration that notice under Section 80(1)
of CPC is not imperative and bar of jurisdiction of the Civil Court under
4
-- 4 of 7 --
Order on Notice of Motion
No. 1509 of 2018
Sections 34, 35 and 37 of the SARFAESI ACT and Section 17 of RDDB
Act is not absolute, CLT, DRT, DRAT and authorized officers under
SARFAESI ACT are ultravires to the Constitution, unconstitutional,
incompetently instituted and nonest in the eyes of law. In the alternate,
it is also prayed that in case, the Court concludes that it has no
jurisdiction, the plaint be returned to the plaintiff for presentation in
DRT. Various other ancillary reliefs are also claimed in the plaint.
12. Bare perusal of the relief clause as well as pleadings in the
plaint, makes it clear that the plaintiff is challenging the order passed by
DRT under RDDB Act. The plaintiff is also challenging the proceeding
under Section 13 of SARFAESI ACT. Even the plaintiff is challenging the
Constitutionality of institutions such as CLT, DRT, DRAT and authorized
officers under the SARFAESI ACT. In view of the reliefs claimed in the
suit, it is crystal clear that there is express bar to the jurisdiction of the
Civil Court to entertain those reliefs under Section 17 of RDDB Act and
Section 34 of SARFAESI ACT.
13. Plaintiff has arraigned the Recovery Officer of DRT,
Ahmedabad, Police Inspector, Tahsildar, Collector and Governor of the
Reserve Bank of India as partydefendants in the suit. The plaintiff is
further challenging various Master Circulars issued by the Reserve Bank
India. In these circumstances, apart from the maintainability of the suit
in the light of the provisions of the Banking Regulation Act, presuit
notice under Section 80 (1) of CPC is mandatory. It is matter of record
that the plaintiff has neither issued any such notice nor has he obtained
leave of the Court to institute the suit without such notice. Therefore,
on this ground as well the suit is barred under Section 80 of CPC.
5
-- 5 of 7 --
Order on Notice of Motion
No. 1509 of 2018
14. It is worth to mention here that the suit is lodged on
24.11.2018 and since then it is pending for removal of office objections.
Till today, the plaintiff has not removed the office objections and
therefore, the suit is still not registered. On this ground alone the suit is
liable to be dismissed. However, in view of the fact that the present
Notice of Motion is pending for hearing, instead of dismissing the suit
on technical ground, the Notice of Motion is taken for decision on merit.
15. To conclude the foregoing discussion, it is clear that the
suit is barred under Section 18 of RDDB Act, Section 34 of SARFAESI
Act and Section 80 of CPC. Therefore, the plaint is liable to be rejected
under Order 7 Rule 11(d) of CPC. Resultantly, point Nos.1 and 2 are
answered in the affirmative and following order is passed:
ORDER
1. Notice of Motion 1509 of 2018 is made absolute in terms
of prayer clause (a) in the Notice of Motion.
2. Notice of Motion 1509 of 2018 is disposed of accordingly.
(S.B. Pawar)
Judge,
Dated: 04/07/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 04.07.2022
Dictated on : 04.07.2022
Transcribed on : 06.07.2022 & 7.07.2022.
Checked & Signed on:
6
-- 6 of 7 --
Order on Notice of Motion
No. 1509 of 2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.07.2022 at 2.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 04.07.2022
Order signed by P.O. on 08.07.2022
order uploaded on 15.07.2022
7
-- 7 of 7 --