Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2331/18 Suit 2096-14 1
CNR NO.MHCC010067952018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2331 of 2018
IN
SUIT NO.2096 of 2014
Canara Bank & Ors. .. Applicants
(Org.Defendant13)
IN THE MATTER OF
Mr.Hitesh Vadalia ..Plaintiff
Versus
Canara Bank & Ors. ...Defendants
Plaintiff and advocate absent.
Advocate Shri. Akbar Rizvi for Defendant no.1 to 3.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR No. : 32
Dated : 1st November 2018
ORDER
1. Defendant no.1 to 3 taken out this motion for
Defendant no.1 bank be allowed to appropriate the amount of the
Fixed Deposit Receipt (FDR) towards the discharge of the outstanding
liability of plaintiff owed to the defendant no.1 in view of order dated
09/03/2015.
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NM 2331/18 Suit 2096-14 2
2. Defendant no.1 bank granted Open Cash Credit (OCC) to the
defendant no.4 for a sum of Rs.25,00,000/,that time, plaintiff was
Director of defendant no.4 company and executed the Guarantee
Agreement dated 29/12/2002 in which it was specifically mention that
plaintiff is liable for the payment up to an amount of Rs.30,00,000/.
Plaintiff has surrendered his RBI Bonds bearing Certificate No.BC42022
and BC47758 of Rs.3,00,000/ (Rupees Three Lakhs Only) and
Rs.4,00,000/ (Rupees Four Lakhs Only) respectively totally amounting
to Rs.7,00,000/ (Rupees Seven Lakhs Only) together with its Director
being defendant No.5 to 7 towards collateral security for granting OCC
facility in favour of defendant no.4. Plaintiff requested the defendant
No.1 bank to release the amount but as the plaintiff had executed
Guarantee Agreement in favour of defendant no.1 bank for an amount
Rs.30,00,000/ therefore defendant bank refused to release any
payment to the plaintiff. Plaintiff himself admitted that the FDR receipt
are the collateral security created by defendant No.4 to 7 alongwith
plaintiff in favour of defendant no.1.
3. In view of order dated 09/06/2015, suit itself has become
infructuous therefore, motion is required to be made absolute.
4. Plaintiff filed the reply. The motion is unsustainable in law. The
motion is nothing but abuse of process of law. Hence, be dismissed with
cost.
5. Heard Ld. Adv.Shri. Akbar Rizvi for defendant No.1 to 3. Plaintiff
and advocate absent.
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NM 2331/18 Suit 2096-14 3
6. Plaintiff has filed the present suit for declaration that act of the
defendants in renewing the loans of the defendant no. 4 to 7 without
the express consent and concurrence of the plaintiff are bad in law and
illegal and for mandatory order directing the defendants to release the
FDR Bearing No. 0105401005667/7 dated 11/07/2017 for an amount
of Rs. 7,55,510/ and No. 0105401005667/8 dated 11/07/2017 for an
amount of Rs. 5,65,752/.
7. Ld Adv.Shri. Akbar Rizvi for defendant no.1 to 3 submitted that
plaintiff had taken out Notice of Motion No. 3915/14 for temporary
order for injunction restraining defendant nos. 1 to 3 from taking any
action against the plaintiff's Fixed Deposits bearing No.
0105401005667/7 dated 11/07/2013 for an amount of Rs.7,55,510/
and No. 0105401005667/8 dated 11/07/2013 for an amount of
Rs.5,65,752/ for any dues of the defendant nos.4 to 7. That motion
was dismissed with cost by order dated 09/03/2015. It is undisputed
fact on record that plaintiff has executed Guarantee Agreement in
favour of defendant no.1 bank and surrendered his RBI bond to the
defendant no.1 bank as a collateral security for grant for OCC facility.
8. Defendant no.4 is the borrower and plaintiff is the Guarantor as
the plaintiff has executed Guarantee Agreement to discharge the
liability of defendant no.4 in case of there default. Under Section 126
of the Contract Act the Guarantor's obligation depends upon the default
of principle debtor, the liability of Guarantor is nor primary and
independent.
9. The matter is at the stage of framing of issues therefore, in my
considered view, the reliefs prayed in the motion can not be granted at
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NM 2331/18 Suit 2096-14 4
this stage. Hence, I pass the following order.
ORDER
Notice of Motion No.2331/18 is dismissed with cost.
Dated : 01/11/2018 (Pushpa N. Rao)
Ad hoc Judge
City Civil & Sessions Court
Greater Mumbai
Direct typed on computer on : 01/11/2018
Signed by HHJ on : 01/11/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02/11/2018 at ( 4.30p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
01/11/2018
JUDGMENT/ORDER signed by
P.O.on
01/11/2018
JUDGMENT/ ORDER uploaded on 02/11/2018
.
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