Order 2

Order Details: Notice of Motion
Pdf Text: NM No. 1681 / 2025
Bank of India Vs. Naina
Order 1 of 7
MHCC010042382025
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
Notice of Motion No. 1681 / 2025
in
Commercial Suit No. 297 / 2021
Raju D. Shah … Applicants
Rajesh R. Bhansali (Original defendant nos. 3 & 4)
IN THE MATTER BETWEEN
Bank of India … Plaintiff
Vs.
Naina M. Singh & Ors. … Defendants
Appearances :
Defendant nos. 3 & 4 : Adv. Rishit Vimadalal
Plaintiff : Adv. Jagannathan
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 10.09.2025
***************************************************************
ORDER
(Delivered on this 10th day of September, 2025)
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1. Defendant Nos. 3 and 4 moved this Notice of Motion for
rejection of plaint under Order VII Rule 11(a) of the Code of Civil
Procedure, 1908 (the Code, for short) on a ground that there is no
cause of action against these defendants. Notice of Motion is supported
by an affidavit. Plaintiff filed reply affidavit at Exh.46.
2. I have heard Learned Advocate Mr. Rishit Vimadalal appearing
for defendant nos. 3 and 4. Perused written notes of argument (Exh.48)
submitted by Learned Advocate Mr. Jagannathan appearing for plaintiff.
Crux of Notice of Motion and arguments advanced on behalf of
defendant nos. 3 and 4 are as under :
3. Plaintiff raised this suit against defendant nos. 1 and 2 to
recover Rs. 8,49,414.68/- with future interest. Plaintiff is also seeking
declaration in respect of equitable mortgage. In this suit, plaintiff is a
Nationalized Bank whereas defendant no. 1 is a borrower of home loan
and defendant no. 2 is a builder. Plaintiff contended that, defendant no.
1 borrowed loan of Rs. 14,00,000/- to purchase flat no. 601, ‘A’ Wing,
6th floor admeasuring 32.37 square meter, Sai Akrti Empire, Plot No.
252, New Survey No.43, Village Navghar, Taluka and District Thane.
Said property hereinafter will be referred as suit property for short. As
per plaintiff, it was a secured debt and defendant no. 1 failed to repay
the amount, as agreed. So, present suit is filed.
4. Defendant nos. 3 and 4 contended that, they are prior
purchaser of suit property. As on 03.07.2012 a registered Agreement
was executed in favour of these defendants and they are in possession
of said flat from 29.04.2016. Whereas defendant no. 1 is claiming right
over the suit property on the basis of so called subsequent title deed.
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Bank of India Vs. Naina
Order 3 of 7
Defendant nos. 3 and 4 pointed out that much later after they acquired
rights in suit property, Defendant no. 1 applied for a loan on
06.09.2014. By pointing out entire plaint and prayer clauses, it is
vehemently argued that plaintiff has not claimed any relief against these
defendants. There is no cause of action accrued in favour of plaintiff
against defendant nos. 3 and 4. In fact, plaintiff is claiming mortgage
rights through defendant no. 1, who himself do not have any right in
respect of the suit property. Hence, defendant nos. 3 and 4 submits that
plaint may be rejected to their extent.
Summary of plaintiff’s reply and argument would be as under :
5. Plaintiff submits that present Notice of Motion is not
maintainable as issues are already framed and suit is posted for
evidence. Plaintiff raised an objection that present Notice of Motion
should have been filed before filing Written Statement. As per plaintiff,
defendant nos. 1 and 2 were hand-in-gloves availed loan from plaintiff
bank and cheated a Nationalized Bank dealing with public money.
Plaintiff also filed an FIR in this regard and that investigation is
pending. Only because the amount involved in the dispute is less than
Rs.10,00,000/-, plaintiff could not file the proceeding before Debt
Recovery Tribunal. Thus, denying entire contentions of defendants,
plaintiff prayed for dismissal of Notice of Motion.
6. Considering rival submissions, following points arise for my
determination and I have recorded my findings for the reasons
discussed as under :
Sr.
No.
Points Findings
1 Whether plaint disclose cause of action In the Negative.
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Bank of India Vs. Naina
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against defendant nos. 3 and 4?
2 Whether plaint deserves to be rejected
in respect of defendant nos. 3 and 4?
In the Affirmative.
3 What order? As per final order
REASONS
As to points nos. 1 to 3
7. It is settled law that for deciding an objection under Order VII
Rule 11 of the Code, only plaint can be gone through. It is not
permissible to have recourse to documents on record and it is not even
required to discuss probable defense of defendant. At the same time,
such an objection can be raised at any point of time. On this legal
backdrop, I have gone through plaint. Admittedly, defendant no. 1
borrowed a loan of Rs.14,00,000/- from plaintiff bank on 06.09.2014
for purchasing suit property. Plaintiff bank disbursed that loan and it
was directly paid to builder i.e. defendant no. 2. As per plaintiff,
equitable mortgage was created by defendant no. 1 in favour of
plaintiff. As the amount was not repaid and the loan account became
NPA, so present suit is filed.
8. In this suit, all the reliefs are claimed against defendant nos. 1
and 2 only. So far as relief no. 3 is concerned, it relates to declaration of
equitable mortgage. However, plaint nowhere says anything about
defendant nos. 3 and 4. Plaint is completely silent about the role of
defendant nos. 3 and 4 in the present controversy. Plaintiff in para no.
13 of the plaint clearly admitted that after enquiry, it came to know that
defendant nos. 3 and 4 already acquired title of suit property on
03.07.2012. As per plaint, the so called title deed in favour of defendant
no. 1 was executed on 08.08.2014. Thus, needless to say so called title
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Bank of India Vs. Naina
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deed of defendant no. 1 was executed two years later from the
registered Agreement, which was executed in favour of defendant nos.
3 and 4.
9. Thus, in such circumstances, there is no cause of action for
plaintiff to sue defendant nos. 3 and 4. Rather it appears defendant nos.
1 and 2 deceived plaintiff bank. It is also not known what steps were
taken by plaintiff bank prior to advancing loan to defendant no. 1. Had
plaintiff bank made a reasonable inquiry, it would have certainly come
to know about title deed of defendant nos. 3 and 4.
10. So far as rejection of plaint only against defendant nos. 3 and
4 is concerned, it would not amount to partial rejection of plaint. This
Court is conscious of a law that plaint cannot be partly rejected in
respect of few reliefs. However, here in this case, the facts are such that
entire plaint will have to be rejected as against defendant nos. 3 and 4.
Such a course of action is very much legal in view of Judgment of
Hon’ble Bombay High Court in the case Sheela Ram Vidhani Vs. S. K.
Trading Company reported in AIR ONLINE 2021 BOM 1682. In this
case, Division Bench of Hon’ble Bombay High Court observed that,
“plaint can be rejected as whole against some of the defendants”.
Hence, there is no legal impediment in rejecting plaint as a whole
against defendant nos. 3 and 4.
11. Hence, I find substance in the submissions made by Advocate
for defendant nos. 3 and 4. Plaint as a whole deserves to be rejected as
against defendant nos. 3 and 4, as it doesn’t disclose cause of action.
Hence, I answer point no. 1 in the Negative and point no. 2 in
Affirmative. As answer to point no. 3, following order is passed :
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Bank of India Vs. Naina
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ORDER
1. Notice of Motion No. 1681 of 2025 is allowed.
2. Plaint (as a whole) in Commercial Suit No. 297 / 2021 stands
rejected under Order VII Rule 11(a) of the Code of Civil
Procedure, 1908 as against defendant nos. 3 and 4.
3. Both parties to bear their own cost.
4. Order is dictated and pronounced in Open Court.
5. Record of Notice of Motion No. 1681 / 2025 shall form part
of Commercial Suit No. 297 / 2021.
Mumbai
Dated : 10.09.2025
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
10.09.2025 5.40 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
10.09.2025
Judgment/order signed by P.O on 10.09.2025
Judgment/order uploaded on 10.09.2025
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