Final Order 1

Order Details: Chamber summons
Pdf Text: CH-S 1022–18 in EA 76 of 2015 .. 1 ..
MHCC010073722018
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
CHAMBER SUMMONS NO.1022 OF 2018
IN
EXECUTION APPLICATION NO.76 OF 2015
M/s. MCT Cards & Technology Pvt. Ltd. ...Plaintiff
V/s.
M/s. Glodyne Technoseve Ltd. & Ors. ...Defendants
Appearances:
Adv. Jayesh Gawade For the Decree Holder
Adv. Kritika Joshi i/b Bhide & Asso. For defendant.
CORAM : HIS HONOURJUDGE
SHRI N. B. LAVTE, (C.R.No.83)
DATED : 18th September, 2025
ORAL ORDER
The Chamber Summons is moved by the intervener bank i.e
ICICI Bank with prayer that, the Warrant of Sale dated 11.08.2015 be
raised.
2. In short, it is their contention that, the defendants Nos.2
and 3 had availed a Home Loan Facility as well as Top-up Loan Facility
from them of an amount of Rs.52,00,000/- and Rs.41,00,000/-
respectively vide Home Loan Facility Agreement dated 13.10.2006 and
executed equitable mortgage in respect of flat No.402, Jayraj Co-Op.
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CH-S 1022–18 in EA 76 of 2015 .. 2 ..
Housing Society Limited, Bandra-Kurla Complex, Bandra (E), Mumbai –
400 051 by deposit of original title deeds. Hence, the bank is a secured
creditor. On 23.10.2015 an amount of Rs.52,31,019/- and
Rs.42,53,783.25/- were outstanding on both the accounts. On
02.09.2015, the bank came across notice inviting objections in respect
of the disputed flat in Free Press Journal Newspaper.
3. They also came to know about the issuance of Warrant of
Sale dated 11.08.2015. They filed an affidavit dated 03.11.2015 with
the office of the Commissioner for Taking Accounts, High Court,
Bombay lodging their objection. They did not receive any
communication from the said office. As the defendant Nos.2 and 3
defaulted, the demand notice dated 29.02.2016 u/Sec.13 (2) of
SARFAESI Act was issued. The defendant Nos.2 and 3 filed an
application u/Sec.17 of the SARFAESI Act before DRT-I at Mumbai in
which by an order dated 04.08.2017 they were directed to deposit
Rs.50,00,000/- on or before 07.08.2017. The defendant Nos.2 and 3
filed an application for modification of the order dated 04.08.2017. In
the said intervention application No.75/2017, the parties made joint
statement that the loan account of defendant Nos.2 and 3 was
regularized. Hence, the bank did not proceed with the SARFAESI
proceeding. The applicant bank was not party to the Execution
Application nor to the suit filed by the plaintiff nor was aware of any
such proceeding. The bank is having first and paramount charge of the
subject flat. Hence, the Chamber Summons.
4. By filing reply, the plaintiff/DH objected the same on the
ground that, the Chamber Summons is filed to delay the execution
proceeding to recover the legitimate claim. The applicant has not
approached the Court with clean hands and in collusion with
defendants have filed the Chamber Summons. The alleged mortgage
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CH-S 1022–18 in EA 76 of 2015 .. 3 ..
deed is not duly stamped nor registered, therefore, is not a binding
document. The applicant/bank is not secured creditor as no any order is
passed by the DRT in their favour. There is no any decree passed in
favour of the applicant in respect of purported date, therefore, there is
no question for setting aside the Warrant of Sale in respect of subject
flat. Hence, dismissal of the Chamber Summons with heavy costs is
prayed.
5. Heard Ld. Adv. Bhide for applicant and Ld. Adv. Vyas for
DH. So also, gone through the entire documents filed on record
including the authority of
Ashta Lokmanya Nagari Sahakari Patsanstha
Maryadit vs. Ganesh Coop. Spinnuing Mill Ltd,. in W.P. No.3957 of
2007. Perusal of the record reveals, the plaintiff company had filed suit
against the defendants for recovery of amount before the Additional
Senior Civil Judge, UDUPI bearing O.S.No.34/2010. It was decreed with
costs on 25.03.2014 wherein the defendants were directed to pay
Rs.11,4,823/- with 20% p.a. The decree was transferred for execution
to this Court in which the order of Warrant of Sale dated 11.08.2015
was passed. According to Adv. Bhide, the applicant bank is secured
creditor as the subject flat is mortgaged with them, therefore, being
secured creditor, they have right over the subject flat.
6. Whereas, in response, Adv. Vyas submitted that, the suit
was filed in the year 2013 and was decreed on 25.03.2014. The
applicant bank did not take any recourse to recover their amount and in
the DRT proceeding and the loan account regularized. Therefore,
according to him, there is no any order of any Competent Court in
favour of the applicant bank, hence, cannot be termed as secured
creditor.
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7. Admittedly, though, the subject flat was mortgaged with
the applicant bank on 13.10.2016, however, till 2015, they did not take
any steps to recover the amount. It was only after coming to know
about the notice dated 02.09.2015 published in Free Press Journal, the
applicant bank came out of slumber and started proceeding against
defendant Nos.2 and 3 and para 21 of their own pleading goes to show
that, in the DRT proceeding they regularized the account. Therefore, at
this juncture, there is no any order of Competent Court in favour of the
applicant bank. On the contrary, the plaintiff/DH is having a decree
issued by the Competent Court and pursuant to it there is Warrant of
Sale order dated 11.08.2015 in their favour.
8. In
Ashta (supra), the facts were similar wherein the suit
filed before the Cooperative Court by the appellant Patsantha was
decreed against which respondent preferred appeal. The decree was
transferred to Civil Judge, Senior Division, Ichalkaranji for execution.
The respondent/JD prayed for suspension of the decree claiming that,
the immovable property is mortgaged to Maharashtra State Co-
Operative Bank which will have precedence over the award in favour of
the appellant. Which was allowed against which the DH/appellant filed
the W.P. While deciding the issue, the Hon’ble High Court in para Nos.11
and 12 held that:
11. I have perused the provisions relevant for the purpose
of enabling the executing court to stay the execution
proceedings. Order XXI Rule 26 of C.P.C. provides for
staying of execution proceedings. Both sides do not dispute
that execution proceedings could not have been stayed
under the said order in the facts and circumstances of the
present case. Similarly, both sides do not dispute that
attachment of the immovable property in execution is
permissible and merely because there is a mortgage or prior
charge there is no impediment in doing so. When attention
of Mr. Ingale was invited to order XXI Rule 54 read with
Order XXI Rule 58 (3), he could not dispute that
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Attachment can be levied even if there is prior charge or
mortgage of the Bank.
12. The Court below was, therefore, in clear error in
passing the impugned order. The said order is neither
traceable to the inherent powers of the Court nor the one
enabling it to stay execution proceedings. The Court has
clearly proceeded on a misconception in law that because
the properties are mortgaged in somebody else’s favour,
stranger to that proceeding, cannot execute the decree for
money passed in his or her favour by Attaching the same.
That this is misconception is clear from a perusal of the
abovementioned provisions in law.
9. The authority cited above is squarely applicable to the
present case in hand and the claim of mortgage and claim of secured
creditor claimed by the applicant is not impediment for attachment.
Therefore, I am of the view that, the Chamber Summons is not
maintainable and applicant cannot thwart the fruits of the decree
accrued in favour of the plaintiff. Hence, I proceed to pass the following
order:
ORDER
1.	ChThe Chamber Summons No.1022 of 2018 in Execution
Application No.76 of 2015 is dismissed.
2. The Chamber Summons No.1022 of 2018 is disposed of.
( N. B. Lavte)
Judge, (C.R.No.83)
Dt.: 18-09-2025 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 18-09-2025
Transcribed on : 18-09-2025
checked on : 19-09-2025
Signed on : 19-09-2025 ( N. B. Lavte )
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
19.09.2025 at 05.20 p.m.
UPLOAD DATE AND TIME
(MANISHA SRINATH)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
18.09.2025
Judgment/order signed by P.O. on 19.09.2025
Judgment/order uploaded on 19.09.2025
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