Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1940 OF 2019
IN
S.C.SUIT NO.2039 OF 2019
1. Vasudev Balbhadra Goyal,
2. Lalita Vasudeo Goyal ... Plaintiffs
Versus
1. Nishant Vasudev Goyal,
2. Pooja Nishant Goyal,
3. Axis Bank Limited ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 29th AUGUST, 2019
Mr.Chothani, ld. adv. for plaintiffs.
Mr.Shruboddhe, ld adv. for defendant nos.1 & 2.
Mr.Selvi Laxman, ld.adv. for defendant no.3.
O R D E R
1. This notice of motion is taken out by plaintiffs for
temporary injunction restraining defendant no.3 Axis Bank Ltd., its
representatives, servants, agents or any person claiming through or
under them in any manner from taking possession of suit property.
2. Plaintiff no.1 Vasudeo Balbhadra Goyal has filed his
affidavit in support of notice of motion contending that he is intending
to rely upon the contentions raised in the plaint. It is further contended
that balance of convenience lies in favour of plaintiffs and they will
suffer from grave hardship loss or prejudice if notice of motion will not
be made absolute. According to plaintiffs, if the notice of motion will be
made absolute no prejudice will be caused to defendants.
3. As contended in the plaint, plaintiff no.1 is husband and
plaintiff no.2 is wife of plaintiff no.1. Defendant no.1 is their son,
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defendant no.2 is wife of defendant no.1 and daughterinlaw of
plaintiffs. Defendant no.3 is Axis Bank, is a Banking Company
incorporated under the provisions of Companies At, 1956. Plaintiffs
have filed this suit for perpetual injunction restraining defendant no.3
from dispossessing plaintiffs from use and possession of amalgamated
flat Nos.C63 and C64 which were procured by plaintiffs, further they
have sought declaration that defendants have no right, title and interest
in flat No.C63 situated on 6 th Floor in CWing of building namely
Manali Building No.3 situated at Evershine Nagar, Malad(West),
Mumbai400 064. It is contended that flat No.C63 is having built up
area of 815 sq.ft. It is contended that said flat was purchased by
plaintiffs on 13th September, 1985 as per plaintiffs' agreement with M/s.
Manali Corporation, Builders. Plaintiffs have purchased it for the
consideration referred in said agreement. Copy of said agreement is
annexed to the plait as Exh.A. It is further contended that by Deed of
Transfer dated 27/01/2000 between Mr.Kishore Ramchandra Potnis
and Smt.Supriya Kishore Potnis in favour of Arun Goyal and defendant
no.1 Nishant Goyal. Flat No.C64 from said building was purchased by
Arun Goyal and Nishant Goyal, the defendant no.1, for consideration
referred in the Deed of Transfer dated 27/01/2000. It is contended
that said flat No.C64 is admeasuring 610 sq.ft. Copy of said Transfer
Deed is filed with plaint at Exh.B. As such according to plaintiffs, Arun
Goyal and Nishant Goyal, the defendant no.1, have 50% share each in
said flat No.C64.
4. It is contended that on 18/03/2009 plaintiffs have filed an
application to Manali Building no.3 CHS Ltd. for amalgamation of flat
Nos.C63 and C64 and said society by its letter dated 09/04/2009
approved such amalgamation of said flat i.e. suit property. The
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application filed by plaintiffs and the letter of Manali Building no.3 CHS
Ltd. and copies of application filed by plaintiff and letter of Manali
Building no.3 CHS Ltd. are annexed to the plaint as Exhs.D and E.
Plaintiff has also annexed to the plaint the photographs of plaintiff as
Exh.F.
5. Plaintiffs have contended that on 20/04/2019 plaintiffs
were shocked to receive letter dated 17/04/2019 issued by the
defendant no.3 Axis Bank through its advocate by which Carpe Heat
and Others (including defendant nos.1 and 2) were inter alia called
upon to pay the monies owned by Carpe Heat and Others from
defendant no.3 Axis Bank. Copy of said letter is annexed to the plaint
as Exh.G. After receiving said letter Exh.G, plaintiffs made inquiry with
defendant no.1 regarding mortgage of flat no.C64 in fvour of
defendant no.3. Initially, defendant no.1 was reluctant to share any
information or document pertinent to said mortgage but after much
persuasion defendant no.1 informed plaintiffs' about mortgage of flat
no.C64 in favour of defendant no.3 and defendant no.1 provided a
copy of possession notice dated 29/03/2019 issued by defendant no.3
in the Financial Express Newspaper in which it was informed to the
public in general that defendant no.3 Axis Bank had taken symbolic
possession of flat no.C64. Copy of said public notie is annexed as
Exh.H to the plaint.
6. It is contended by plaintiffs that flat Nos.C63 and C64
have been amalgamated pursuant to the permission from Society
whereby only one access gate is provided to suit property and said gate
is from flat No.C63. According to plaintiffs, in such circumstances if
defendant no.3 Bank will take physical possession of flat No.C64 same
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would interfere with plaintiffs possession over flat No.C63. According
to plaintiffs, they are in the twilight years of life and do not have any
other place to stay other than flat No.C63 which they have purchased
with the sole intention of their residence. Hence, plaintiffs have
contended that if they will be dispossessed from flat No.C63 they will
be rendered homeless without roof over their head. It is contended that
plaintiff no.1 has got replaced his knees, plaintiff no.2 had suffered
from kidney failure and had undergone kidney transplant, hence
according to plaintiffs if defendant no.3 will dispossess plaintiff from
flat No.C63 they will be put to trauma. It is also contended that
plaintiffs were unaware of the fact that defendant no.1 has mortgaged
flat No.C64 to defendant no.3 Bank without permission of plaintiff. It
is further contended that the Bank defendant no.3 was unjustified in
sanctioning monies pursuant to mortgage of flat No.C64. Even though
said bank was knowing that flat Nos.C64 and C63 were amalgamated.
According to plaintiffs, as contended in the plaint they are entitled to
the declaration and injunction as prayed in the plaint.
7. Representative of defendant no.3, Mr.Amit Kumar Detke
has filed his affidavit in reply and resisted the notice of motion
contending that M/s.Carpe Heat Transfer Pvt. Ltd. has availed the
various credit facilities from defendant no.3 Bank aggregating to
Rs.400.00 Lacs in the year, 2015. It is further contended that borrower
had executed necessary security documents in favour of defendant no.3.
In order to secure the aforesaid credit facilities, defendant nos.1 and 2
on 23/10/2015 credited original title deed of flat No.C64 on
23/10/2015 with defendant no.3. As such mortgage of flat No.C64 is
created by defendant no.2 in favour of defendant no.3. It is contended
that defendant no.3 through Authorized Officer had issued demand
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notice dated 11/10/2018 under SARFAESI Act and on 25/03/2019 took
symbolic possession of the secured assets including suit flat No.C64.
Further it is contended that borrower company has failed and neglected
to repay the outstanding dues of the defendant no.3 Bank and
therefore, defendant no.3 bank has also filed application in DRT3,
Mumbai against above referred Carpe Heat Transfer Pvt., mortgagers
and guaranteers in said application defendant no.3 claimed decree. It is
contended that at the time of creation of mortgage of flat No.C64,
Manali Building CHS Ltd. vide its letter dated 20/10/2015 has given no
objection for creation of equitable mortgage against flat No.C64 and
the Lien is marked in their records. Copy of said NOC is annexed to the
affidavit at Exh.A. It is further contended that defendant no.3 has issued
legal notice dated 17/04/2009 claiming a sum of Rs.3,02,34,018.18
paise but the Mortgagers, guaranteers had failed to repay the dues. It is
contended that after receipt of said legal notice in collusion with
defendant nos.1 and 2, plaintiffs have filed this suit in order to defeat
the claim of defendant no.3 Bank. Further it is contended that
defendant no.3 bank took symbolic possession of flat No.C64 on
25/03/2019 and therefore plaintiff cannot seek any relief against suit
flat from this Court. It is further contended that this Court has no
jurisdiction to entertain present suit as the matter is pertaining to Debts
Recovery Tribunal as Civil Court has no jurisdiction to that effect as per
Section34 of Securitization and Reconstruction of Financial Assets and
Enforcement Act, 2002. Defendant no.3 has further contended that if
plaintiffs are aggrieved against the measures taken by the defendant
no.3 Bank under Securitization and Reconstruction of Financial Assets
and Enforcement Act, 2002, plaintiff has to approach the Debts
Recovery Tribunal and not to this Court. It is alleged that plaintiffs with
the help of defendant nos.1 and 2 are trying to create hurdles in the
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recovery proceedings initiated by the defendant no.3 under SARFAESI
Act and they are intending that defendant no.3 should defeat its valid
claim. It is alleged that present suit is collusive suit within the Father,
Mother and their son and daughter in law. It is further contended that
application U/s.14 of SARFAESI Act is filed by defendant no.3 before
the Chief Metropolitan Magistrate, Esplanade Court, Mumbai and same
is pending. Further according to defendant no.3, admittedly plaintiffs
are not claiming ownership right over flat No.C64 and therefore,
plaintiffs cannot seek any relief against said flat because plaintiffs are
owners of flat No.C63 and do not have any right, title or interest over
suit flat No.C64. It is contended that without permission of BMC,
plaintiffs do not have any right to merge two flats as claimed by
plaintiffs. According to defendant no.3 the floor plan of building cannot
be changed or interfered without written consent of concerned
authorities. It is alleged that office bearers of building no.3 Manali CHS
Ltd. are also hand in glove with plaintiffs and said Society office bearers
are helping plaintiffs and as such said society bearers have violated
society's byelaws. It is alleged that plaintiffs have not approached this
Court with clear hands and hence plaintiff is not entitled for any relief
from the Court.
8. According to defendant no.3, it has to recover huge public
money from borrower company and therefore it is necessary to protect
the public interest by rejecting the prayers sought by plaintiffs.
9. I have heard plaintiffs' advocate Mr.Chothani and
defendants' advocate at length. Advocate Mr.Chothani submitted that
suit flat no.C63 is owned by plaintiffs and flat no.C64 is owned by
defendant nos.1 and 2. Advocate for plaintiff argued that the
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documents annexed to the plaint make it clear that after receiving
notice dated 17/04/2009 plaintiff came to know that Flat No.C64 was
mortgaged by Carpe Heat Transfer Pvt.Ltd. in favour of defendant no.2
and said Carpe Heat Transfer Pvt.Ltd. made default in payment of loan.
After said notice, plaintiffs came to know that defendant no.3 has taken
action under Secutarization Act for mortgage property. According to
plaintiffs advocate said notice is issued by defendant no.3 in respect of
flat Nos.C64 and C63 even though Flat No.C63 owned by plaintiffs
was not subject matter of mortgage hence according to plaintiffs
advocate, plaintiffs cannot be dispossessed by defendant no.3 from flat
No.C64.
10. Advocate Mr.Selvi Laxman for defendant no.3 submitted
that this Court has no jurisdiction to pass orders in respect of property
which is subject matter of Secutarization Act and SARFAESI Act. It is
argued that if plaintiffs without giving knowledge to defendant no.3
would have amalgamated flat Nos.C63 and C64, defendant no.3 bank
cannot be held responsible for the mistake of plaintiff. Hence,
according to defendant's advocate the notice of motion is necessary to
be dismissed.
11. While passing this order advocate Mr.Aditya Manjarekar
h/f. Mr.Chothani submitted that Metropolitan Magistrate has passed
order U/s.14 of SARFAESI Act and has permitted defendant no.3 Bank
to take the possession of flat No.C64.
12. I have given serious consideration to the arguments
advanced. It is admitted fact that plaintiffs are parents of defendant
no.1. Further defendant no.1 and defendant no.2 are borrowers of
defendant no.3 bank. It is admitted that defendant nos.1 and 2 have
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obtained huge loan amount of Rs.4.00 Cores from defendant no.3 bank
and it is also admitted fact that learned Chief Metropolitan Magistrate
has passed order U/s.14 of SARFAESI Act empowering defendant no.3
bank to have the possession of flat No.C64. This is the interesting suit
in which plaintiffs have not clarified that whether amalgamation of flat
Nos.C63 and C64 was made by obtaining necessary permission from
BMC. Unless there is any permission, such a amalgamation cannot be
protected legally. It seems that at the time of obtaining the loan and at
the time of mortgaging flat No.C64, defendant nos.1 and 2 have not
informed defendant no.3 Bank that flat Nos.C63 and C64 are
amalgamated. In such circumstances, if the illegal act of amalgamation
of flats by plaintiffs and defendant nos.1 and 2 will be protected it will
amount to give protection and encouragement to illegal acts. Further as
already learned Metropolitan Magistrate has passed the order U/s.14 of
SARFAESI Act, I find that the relief as prayed by plaintiffs cannot be
granted. One more aspect of the matter is that plaintiffs have beaten
drums of allegations against defendant no.3 only and plaintiffs have not
uttered a single word in the plaint against defendant nos.1 and 2 who
are son and daughterinlaw of plaintiff. In such circumstances, I find
that plaintiffs and defendant nos.1 and 2 have jointed their hands
together and for all above reasons I find that notice of motion is
necessary to be dismissed. Hence, I proceed to pass the following order.
O R D E R
Notice of Motion No.1904 of 2019 stands disposed off/dismissed.
Sd/
(K.P.NANDEDKAR)
29/08/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 29/08/2019
Transcribed on : 09/09/2019
Signed by HHJ on : 13/09/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
16/09/2019 01.20PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 29/08/2019
Judgment/order signed by P.O on 13/09/2019
Judgment/order uploaded on 16/09/2019
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