Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2321 OF 2019
IN
S.C. SUIT NO.1534 OF 2019
Mr. Priyen Ravindra Khona … Plaintiff
V/s.
Bank of Baroda Erstwhile Dena Bank … Defendant
Appearances :
Ld. Adv. Rushabh Shah for plaintiff.
Ld. Adv. Yasmin Sarang for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 23rd AUGUST, 2019
ORDER
Plaintiff has taken out this notice of motion for directing
the defendant to make discloser and provide copies of sanction letters
and the security documents and for temporary injunction restraining the
defendant from taking any steps against plaintiff firm.
2. It is argued on behalf of plaintiff that plaintiff is running
business in the name of proprietory concern as M/s. Shalibhadra
Traders. Plaintiff is having cash credit facility of Rs.11.50 Crores with
defendant bank. Plaintiff has secured various properties and deposits as
collaterals security for said cash credit facility. On 31.10.2018 plaintiff
received notice under section 13 (2) of Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
MHCC01 006423 2019
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Act (hereinafter referred as SARFAESI Act) whereby the plaintiffs
account is declared as “out of order” alleging that last deposit was made
on 31.07.2018. As per said application defendant is seeking possession
of plaintiffs immovable properties kept as collateral securities. Plaintiff
has taken cash credit facility of Rs.11.50 Crores only. However, the
notice of defendant reveals that an aggregate sum of Rs.18.81 Crores is
outstanding against plaintiff. Plaintiff has never applied for
enhancement of cash credit facility. It seems that defendant has
unilaterally and by way of fabrication has enhanced the cash credit
facility. There is very much disparity between the claim of defendant
and documents relied upon. Therefore, plaintiff has requested
defendant bank to give inspection of the documents and to supply
copies thereon. However, defendant has not intentionally given the
copies of some earlier documents. Therefore, plaintiff has constrained
to file this suit for directing the defendant for discloser of documents
and supplying copies thereof to plaintiff.
3. Defendant bank has resisted this application on the ground that
suit is not maintainable in view of section 34 of the SARFAESI Act. As
per said section jurisdiction of Civil Court is expressly barred. It is
argued that by the end of May 2019 the outstanding amount was
11,63,70,341/ against the sanction limit of 11.50 Crores. Said account
never came within limit thereafter. It was remained out of order for a
period of more than 90 days. Said facility was sanctioned against
collateral security by way of deposit of title deeds of flats. On
30.09.2018 plaintiffs account turned into NPA. After 31.05.2019
plaintiff has not made any payment. Therefore, defendant has
constrained to take steps under SARFAESI Act. Accordingly, defendant
has applied under section 13 (2) of SARFAESI Act before Ld. CMM for
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taking possession of secured properties of plaintiff. If plaintiff is having
any grievance then the remedy is under section 17 of SARFAESI Act.
However, instead of approaching there plaintiff is knocking doors of
Civil Court. This application is filed with ulterior motive to give go by
or counter check to the action legally initiated by defendant under
SARFAESI Act. Apart from it as per plaintiffs demand inspection and
copies of documents were given to him. Therefore the application is
nothing but abuse of process of law and liable to be rejected.
4. It is an admitted position on record that plaintiff is having
cash credit facility with defendant bank to the tune of Rs.11.50 Crores
on collateral security of cash and assets. Now it is the grievance of
defendant bank that plaintiffs account went out of order and became
NPA. Therefore, as per provision of SARFAESI Act defendant bank has
initiated legal action under section 13 (2) of said act before Ld. CMM
for taking possession of secured properties to liquidate the outstanding
amount. On the other hand it is grievance of plaintiff that defendant
bank has unilaterally and behind his bank has enhanced the cash credit
facility above 18 Crores. The claim made by defendant bank and
documents relied upon are very much contrary with to each other.
Therefore, plaintiff wants inspection and discloser of the documents as
relied on the defendant.
5. No doubt as per section 13 of SARFAESI Act the secured
creditor has right to enforce right against any interest credited security
under provisions of this act without intervention of Court. Section 13
(2) provides issuance of notice to defaulter by secured creditors to
liquidate the dues within 60 days and on failure right is accrued to
secured creditor to apply under section 13 (4) of the SARFAESI Act
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before Ld. Court to take the majors to recover the secured debts by
taking possession and sale of property. It is also matter of record that in
case of any grievance the borrower or a person under a liability to
secured creditor may approach before DRT by way of appeal under
section 17 of the SARFAESI Act and as per section 34 of said act
jurisdiction of Civil Court is expressly barred. In such legal position it is
necessary to see whether what is the grievance of plaintiff that too
whether it comes under section 17 or he can seek redress before Civil
Court.
6. It is the grievance of plaintiff that he is having cash credit
facility of Rs.11.50 Crores and secured certain cash and assets as
collateral securities. However, by way of application made before CMM
it reveals that defendant bank is seeking possession of certain properties
which at all not given as security. There are no details as to when and
how the bank has unilaterally enhanced the collateral security. There is
no reference of original sanction letters or security documents. Plaintiff
never expressed intention to secure alleged dues of 18.81 Crores. It is
unilateral and illegal act on the bank.
7. So from above contention made in application it can be
inferred that plaintiff is having grievance about the contention raised
and prayers made by defendant bank in application under section 13
(2) of SARFAESI Act made before the Ld. CMM. It goes to show that
he is raising grievance to the action taken out by defendant bank under
SARFAESI Act. As discussed above in case of such grievance remedy is
open to plaintiff to file appeal before DRT under section 17 of the
SARFAESI Act. In that context jurisdiction of Civil Court is totally
barred. Though plaintiff put forth the case that he want the inspection
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and discloser of the security documents, the ultimate intention is to
create obstruction in the proceedings legally taken out by bank under
SARFAESI Act. Therefore, there is no force in the contention made out
by plaintiff.
8. The Ld. Counsel for plaintiff has relied on two citations...
(2004) 4 Supreme Court Cases 311 and AIR 1969 Supreme Court
78. The Ld. Counsel for plaintiff relied on above citations on the point
that Civil Court has every jurisdiction only if it is expressly barred. No
doubt it is the rule that Civil Court has every jurisdiction unless it is
expressly or impliedly barred. If any separate remedy under special act
alongwith forum is provided and if that forum is able to give finality to
the cause in issue then it can be said that the jurisdiction of Civil Court
is impliedly barred.
9. I have gone through both the citations. It is observed that
before holding bar to jurisdiction of Civil Court Court has to see the
scheme of the statute in question of the adequacy or sufficiency of the
remedies provided by it. If that forum is able to provide finality to the
dispute then jurisdiction of Civil Court is barred. If that forum is not
able to give finality then it can be said that Civil Court has jurisdiction
to entertain the cause. Here, as per the scheme of SARFAESI Act
separate forum is provided to give finality to the cause. Therefore,
jurisdiction of Civil Court is barred. So the citations above are not
helpful to the case made out by plaintiff.
10. To conclude there is no substance in the contention made
out by plaintiff. The notice of motion is liable to be dismissed.
Accordingly, the order.
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ORDER
1. NM No.2321/19 in SU No.1534/19 is hereby dismissed.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 23/08/2019 City Civil Court, Gr. Mumbai
Dictated on : 23.08.2019
Transcribed on : 23.08.2019
Signed on : 28.08.2019
sbk/
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
29.08.2019 11.05 a.m. Sanjay Baliram Kaskar
(Stenographer H.G.)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
23.08.2019.
Judgement/order signed by P.O on 28.08.2019.
Judgement/order uploaded on 29.08.2019.
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