Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1761 of 2018
CNR No.MHCC010057762018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1761 OF 2018
IN
S.C. SUIT ( STAMP) NO. 5595 OF 2018
Kishor Kirtilal Mehta .. Plaintiff.
Versus
Phoenix ARC Private Limited and Ors. .. Defendants
Appearance
Ld. Advocate Dalal for plaintiff.
Ld. Advocate Rohit Gupta for defendant no. 1.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 24.09.2018
: ORDER :
This Notice of Motion is taken out by plaintiff for restraining
the defendant no. 1 from making any claims or taking any steps in view
of Consent Term dated 01.10.2013 and the Deed of Assignment dated
30.09.2013. Further, restraining the defendant no. 1 from proceeding
or taking any steps for auctioning property before the Debt Recovery
Tribunal, Mumbai.
2. Plaintiff submitted that defendants no. 3 to 6 are his family
members and defendants no. 2, 7, 8 and 9 are the business entities run
by them. Defendant no. 1 is successor in interest of the Oriental Bank
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of Commerce (herein after referred to as 'OBC'). Plaintiff further
submitted that defendants no. 2 to 9 had availed various financial
facilities from Global Trust Bank, which was later merged with 'OBC'.
Plaintiff alongwith defendants no. 3 to 6 were the guarantors. Recovery
proceeding were filed before the Debt Recovery Tribunal (herein after
referred to as 'DRT'). Recovery certificate was issued, which was
challenged before the Debt Recovery Appellate Tribunal (herein after
referred to as 'DRAT'). Thereafter Tripartite Agreement was executed
between the defendant no. 1 as assignee, 'OBC' as assignor and
defendants no. 2 to 9 as confirming parties. By this Deed the borrowers
wished to close the accounts and requested the 'OBC' to accept Rs.
20,28,00,000/ on or before 30.09.2013 alongwith interest at the
prevailing base rate + 2% towards full and final claim. Accordingly,
on 01.10.2013 plaintiff and defendants no. 1 to 9 signed and executed
Consent Term. According to it plaintiff and defendants no. 2 to 9
agreed to pay 27,31,04,000/ to defendant no. 1 on or before
29.09.2014 and on failure it was to be paid with interest @ 24%.
According to the plaintiff, defendant no. 1 has not paid the entire
consideration payable under Deed of Assignment to 'OBC'. According
to the letter of bank dated 19.03.2018 to defendant no. 3 they have
received Rs. 20,28,00,000/ instead of total consideration of Rs.
21,53,40,000/ and thus, there was deficit of Rs. 1,25,40,000/.
Plaintiff further submitted that inspite of this defendant no. 1 is
proceeding against him and defendants no. 2 to 9 before 'DRT'. As per
the plaintiff they have paid the entire consideration which was
recorded under consent term dated 01.10.2013 and the Appeal and
Recovery of proceeding were disposed of in view of this consent term
dated 09.10.2013. According to the plaintiff, defendant no. 1 has
recovered more than Rs. 25,00,00,000/ from the plaintiff and
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defendants no. 2 to 9 as per roznama dated 14.12.2015. Thus, they had
recovered more than the entire amount to be paid in terms of
settlement. On the application of defendant no. 1 'DRT' had initiated
auction proceeding against the plaintiff. It is further alleged that fraud
is played upon the plaintiff and they prayed to restrain the defendant
no. 1 from proceeding.
3. Defendant no. 1 appeared and raised preliminary objection
regarding maintainability of the suit. They further submitted that this
court has no jurisdiction to try the suit. It is also barred by law of
limitation. It was further submitted that the order dated 14.12.2015 as
relied by the plaintiff is misconceived. This issue was earlier raised
before the 'DRT' and the Hon'ble High Court, which was not considered
by them. Plaintiff has suppressed the facts. Defendant no. 1 agreed
regarding the original application filed before the 'DRT'. Judgment
and order passed by the 'DRT', issuance of recovery certificate they
agreed to have acquired the debt due and payable by the Mehta family
by Deed of Assignment dated 30.09.2013. They also submitted that
Mehta family approached them for settlement. Consent Term dated
01.10.2013 were recorded and were executed and filed 01.10.2013
before 'DRAT'. But further submitted that Mehta family committed
default in payment as per consent term and failed to pay the agreed
amount. They agreed to have initiated recovery proceeding as per the
Recovery certificate obtained. They also pointed out towards the
various litigations filed by the Mehta family against them.
4. Advocate Dalal for plaintiff submitted that the order dated
14.12.2015 as mentioned in the roznama in 'DRT' is subsisting and is
not yet corrected. It was argued that as the principal debtor has been
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discharged by the defendant no.1 the plaintiff being the surety is liable
to be discharge. Fraud is being played on the plaintiff and it can only
decide by the Civil Court and not 'DRT'.
5. Advocate Rohit Gupta for defendant no. 1 submitted that as
fraud was not played on this court as alleged and it cannot be decided
by this court. They denied that the principal borrower has been
discharge. It was further submitted that the amount was not paid by the
plaintiff and defendants no. 2 to 9 as per the consent term. The
jurisdiction of this court is barred and prayed to reject the motion.
6. Heard both sides. Perused the material on record.
7. Upon considering the hearing it is apparent that the
proceeding were filed before the 'DRT'. Judgment and order was passed
against the plaintiff and defendants no. 2 to 9. Recovery certificate
were granted by the 'DRT'. Thereafter matter went in Appeal before
'DRAT'. There 'OBC' transferred and assigned all their right, title and
interest in respect of debt due from plaintiff and defendants no. 2 to 9
in favour of defendant no. 1. 'OBC' and all the defendants are the
parties to the agreement dated 30.09.2013. As the defendants no. 2
to 9 wished to close the account and agreed to settle on 01.10.2013.
Plaintiff and defendants no. 1 to 9 signed and executed consent term.
As per the contention of the plaintiff the amount that was required to
be paid to 'OBC' by defendant no. 1 was deficit for Rs. 1,25,40,000/
Plaintiff relied upon the roznama dated 14.12.2015, in Recovery
Proceeding No. 238/2006, wherein it is recorded that “as per the
consent term, the matter is settled between the parties and the
amount is appropriated by bank in their respective account is as
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under. As per the plaintiff this amount is recovered by the defendant
no. 1. This roznama is not changed or corrected till date and still
subsisting. As per the contention of the defendant no. 1 the amount
was not paid as per the consent term. Plaintiff had alleged fraud and
that inspite of receipts of the amount and discharge of principal
debtor his property being auctioned.
8. That as per the contention of the plaintiff, principal debtor
has been discharged and fraud is being played upon them. They also
relied upon the consent term and roznama dated 14.12.2015.
Admittedly, the roznama dated 14.12.2015 pertains to 'DRT'.
Observations were made by the presiding officer in its common order
dated 04.07.2017 while disposing Appeal No. 465/2017 and Appeal
No. 466/2017. That it was nowhere mentioned in order dated
14.12.2014 that recovery proceedings were closed on account of full
and final satisfaction. Further, while passing order below Exh. 556 in
Transfer Recovery Proceeding No. 878/2016 on 24.11.2017 again
the order dated 14.12.2015 was agitated. It was observed by the
concerned Recovery Officer that the debtors therein had not produced
any proof as to how the amount was paid by them. It appears that
these orders are not challenged and had attained finality. This court
does not have powers to make any observations on the roznama of the
tribunal.
9. The defendants Charu K. Mehta and Reshma R. Mehta had
filed Writ Petition (L) No. 1766/2017 and 1767/2017 respectively
before Hon'ble Bombay High Court challenging the possession
notices issued by 'DRT'. Both the petitions were dismissed by
imposing cost of Rs. 5 Lacs each on 05.07.2017. It was observed
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by the Hon'ble High Court that the consent term were breached by
the petitioners. On the next day 06.07.2017 the matter was mentioned
on behalf of the petitioners. On humanitarian ground time was
granted to vacate the flat. Accordingly, minutes of order were signed by
the petitioners and the respondents.
10. Thus it is apparent that the issue raised before this court was
already raised before the concern presiding officer of Debt Recovery
Tribunal and also before the Hon'ble High Court. But the plaintiff and
defendants no. 2 to 9 herein failed to obtain any order in their favour.
It was submitted that the auction is being conducted for third time
and even when this matter was closed for order no bids were
received. Considering the record of litigations agitated before the
various forum by the plaintiff and defendants no. 3 to 6, it appears
that every time the auction is declared. They rushed to various
forums t o obtain the interim relief by way of injunction.
11. By considering the roznama dated 14.12.2015 and the
orders of Debt Recovery Tribunal dated 04.07.2017 and 24.11.2017
and also considering the consent term and the observations of the
Hon'ble High Court in W.P.(L) No. 1766/2017 and 1767/2017 dated
05.07.2017 there does not appears to be any fraud as alleged by
the petitioner. Moreso, the defendant no. 1 had submitted that the
principal debtor has not be discharged. So there is no question of
discharge of surety. The plaintiff has other competent forums to
agitate the issues raised. This court cannot grant the interim relief as
prayed. Thus, considering the notice of motion is devoid on merit and
accordingly, I pass the following order.
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: ORDER :
Notice of Motion No.1761 of 2018 is dismissed.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 24.09.2018 Gr. Mumbai
Dictated on : 24.09.2018
Transcribed on : 25.09.2018
Signed on : 25.09.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 26.09.2018 at 2.40 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
24.09.2018
JUDGMENT/ORDER signed by P.O. on 25.09.2018
JUDGMENT/ORDER uploaded on 26.09.2018
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