Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1746/19(Suit 909/16)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1746/2019
IN
S.C. SUIT NO. 909/2016
1. Shri Abdul Hafeez Mohd. Mumtaz Baig
2. Shri Abdul Hakim Mohd. Mumtaz Baig ..Plaintiffs
V/s.
1. Oriental Bank of Commerce
2. Mr Vilas Sawant,
3. Mr. Brijlal Meena ..Defendants
Appearance:
Adv. Mr.Dipak Chitnis for the plaintiffs.
Adv. Mr. Anant Narayan for the defendants no.1 to 3.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 17.10.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiffs for
seeking declaration and mandatory injunction against the defendant
no.1 for completing the transaction of auction sale and for issuance of
share certificate in respect of the suit flat. The Motion is supported by
an affidavit of plaintiff no.2 Abdul Hakim Mohd. Mumtaz Baig and
documents filed on record vide Ex.A and B. Defendant no.1 has opposed
the N/M by filing reply. It is verified by Manager and authorized
person of Oriental Bank of Commerce on behalf of the defendant no.1.
2. I have heard Ld. Counsels for both sides.
3. It is submitted on behalf of the plaintiffs that, they have
filed Suit for declaration and mandatory injunction against the
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defendant no.1 for completing the transaction of auction sale and for
specific performance of contract/ agreement between the parties. It is
further submitted that, the plaintiffs had participated in the auction sale
conducted by the defendant no.1 Bank on 25.6.2015 and was successful
highest bidder. As per terms and conditions of the auction sale an
amount of Rs.60 Lakh agreed as consideration of suit flat i.e. Flat No.A
703, Vatsalya CHS, situated at Dr. Maschrenhas Road, Narialwadi,
Mazgaon, Mumbai 10. Accordingly, the plaintiff had paid 25% of the
amount of the consideration i.e. Rs.15 Lakh to the defendants no.1 to 3.
The plaintiff was always ready and willing to pay he balance amount of
consideration i.e. Rs.45 Lakh.
4. However, it is submitted that, the defendant no.1 had
informed the plaintiff that the person who was defaulter in repaying the
loan to the defendant no.1 bank, had still not handed over the
possession of the suit flat to the defendant no.1 and therefor, the
defendant no.1 bank was unable to complete the sale. Under the above
circumstances, the defendant no.1 was not entitled to forfeit 25% of the
purchase price amount of Rs.15 Lakh which was deposited as earnest
money by the plaintiffs. The defendant no.1 bank has delayed the action
of taking steps for recovery of the possession of the suit flat from
Mr.Yusuf Dalal and Mrs. Farida Dalal, who were defaulters in re paying
the loan amount to the defendant no.1 bank and the plaintiffs were
never informed about the same as well as about attachment proceeding
under Securitization Act. The defendant no.1 bank has played fraud
with the plaintiffs and has caused irreparable loss to them. Under the
above circumstances, the plaintiffs are entitled for direction and
mandatory injunction against the defendants as prayed in the Motion.
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5. Ld. Counsel for the plaintiff submitted that the plaintiffs
had earlier filed a Notice of Motion No. 4678/2016 in the suit and after
hearing both sides, this Court had passed an order granting interim
relief to the plaintiffs and restrained the defendant no.1 bank from
selling the suit flat to third party and said interim relief was
subsequently confirmed by this court by passing order on merit on the
said N/M. Copy of the said order is annexed with the Motion vide Ex.A.
6. Ld. Counsel for the defendant has strongly opposed the
Motion and relied on the reply filed by Mr. S.A.Wasnik , Manager and
authorized officer of the defendant no.1 Oriental Bank of Commerce. It
is submitted that, the suit filed by the plaintiffs itself is not maintainable
in law and this court has no jurisdiction to entertain the present Notice
of Motion because the transaction of the auction sale in the present case
had taken place as per provisions of SARFAESI Act 2002 and only DRT
is competent authority/forum where any transaction/auction
undertaken under provisions of SARFAESI Act can be challenged and
civil court has no jurisdiction to entertain the suit as well as the Motion
in that regard. Ld. Counsel for the defendant no.1 has placed reliance
on the provisions of Sec.17 r/w. Sec.34 of SARFAESI Act and argued
that, there is no merit in the notice of motion and it is liable to be
dismissed.
7. It is admitted by the defendant no.1 that, the plaintiffs had
deposited 25% amount of auction sale i.e. Rs.15 Lakh to the defendant
no.1 bank and 75% of the balance amount was to be paid by the
plaintiffs and the plaintiffs have failed to pay the said balance amount
within stipulated period, which has resulted in forfeiture of the advance
payment/EMD of the auction sale. It is submitted that, as per terms and
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conditions of auction sale, the suit flat was to be sold on the condition
i.e. 'AS IS WHERE IS BASIS' and therefore, the grievance made by the
plaintiffs that possession of the suit flat was not delivered by the
defaulters Yusuf Dalal and Mrs Farida Dalal are not tenable in law.
Alternatively, it is submitted in para 21 of the reply by the defendant
no.1 that, necessary and proper orders may be passed by this Court
directing the plaintiffs to pay the balance amount of Rs.45 Lakh within
a reasonable period of 30 to 45 days, together with interest thereon
from the due date till payment is made.
8. Under he above circumstances, it was submitted that, if the
above alternative submission is not acceptable to the plaintiffs, then the
Motion is liable to be dismissed with costs.
9. I have gone through the N/M and supporting affidavit as
well as reply filed on behalf of the defendants. I have also taken into
consideration oral submissions made by Ld. Counsels for both sides. I
find that regarding factual aspect there is no dispute. It is an admitted
fact on record that, the plaintiff no.1 was the highest and successful
bidder in respect of the suit flat in the auction sale conducted by the
defendant no.1 Oriental Bank of Commerce on 25.6.2015. Admittedly,
the consideration of flat was agreed at Rs.60 Lakh and the plaintiffs had
paid 25% of the amount of consideration i.e. Rs.15 Lakh to the
defendant no.1 and payment of balance amount of Rs.45 Lakh was to
be made by the plaintiffs. On the above factual background, there is
dispute between the parties whether the plaintiff was ready and willing
to complete the terms of the contract/ agreement on his part in terms of
auction sale. It is also in dispute whether the defendants were in
position to hand over the possession of the flat to the plaintiff on his
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making payment of balance amount of consideration, because, it is
alleged by the plaintiffs that, defaulters Mr. Yusuf Dalal and Mrs Farida
Dalal had not handed over the possession of the suit flat to the
defendant no.1 bank. It is also contended by the defendants that the
suit as framed and filed by the plaintiffs is not maintainable before this
court and this court has no jurisdiction in view of provisions of Sec.17
r/w. 34 of SARFAESI Act, 2002 and it is only DRT which is the
authority/ forum having jurisdiction to entertain the dispute arising out
of special enactment.
10. However, on the basis of above said background, the
plaintiff had moved N/M No. 4678/16 before this Court and this court
had granted interim protection by passing interim order of stay
preventing the defendant no.1 bank from selling the suit flat to the third
party. Subsequently the said order or protection has been continued by
this court and N/M has been allowed. The defendant had taken out an
application for for framing preliminary issue on the point that this court
has no jurisdiction but said application has been also rejected by this
Court. Under the above circumstances, I am of the opinion that,
considering the say/ reply filed by the defendant, more particularly,
para21, it will be just and proper to allow the present N/M by allowing
the plaintiffs an option either to complete the sale transaction by
making payment of balance amount of consideration of Rs.45 Lakh or
get back the amount of earnest money from the defendants. Hence, I
proceed to pass following order:
ORDER
Notice of Motion No.1746/2019 is hereby allowed in
following terms:
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1. Defendant no.1 bank is directed to accept the remaining
balance amount of consideration of the suit flat from the
plaintiffs i.e. 75% of the purchase price (Rs.45 Lakh)
within a period of two months, from today, along with
interest at the bank rate from the due date till actual
payment is made and complete sale transaction with the
plaintiffs by issuing share certificate and hand over
vacant and peaceful possession of the suit flat to the
plaintiffs within the above stated period of two months.
2. In the event, the defendant no.1 is not in a position to
comply with the above order within stipulated period
then alternatively, the defendant no.1 is directed to
refund the amount of Rs.15 Lakh to the plaintiffs, being
25% of the purchase price, along with interest accrued at
the bank rate from the date of payment till actual refund
of the said amount within a period of two months from
today.
3. Sheristedar of this Court is directed to supply the
authenticated copy of today's Roznama to the Ld.
Counsel for the plaintiffs for information and
communication of the same to the defendant bank for
compliance.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 17.10.2019 Gr. Bombay (C.R. 03)
Dictated on :17.10.2019
Typed on :17.10.2019
Draft given to HHJ on 17.10.2019
Signed by HHJ on :18.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 19.10.2019
TIME: 11.30 am (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 17.10.19
Judgment/ order signed by P.O on 18.10.19
Judgment/ order uploaded on 19.10.19
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