Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 2772- 2019, in Suit no.1677 of 2009
MHCC010076252019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.2772 OF 2019
IN
SUIT NO.1677 of 2009
Akshat Sanjay Agarwal and Anr. ... Plaintiffs
V/s
1.Sanjay Ramesh Chandra Agarwal and Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 19th DAY OF AUGUST, 2023
-: Appearances: -
The learned Adv. Farhan Khan for plaintiff.
The learned Adv. Anshul Anjarlekar for deft no.11
The learned Adv. Advait Hattangadi i/b Raval Shah and Co. for
defendant No.2
ORAL ORDER
By this notice of motion, the defendant no.11 prayed to
discharge the Court Receiver with respect of suit property.
2. It is to be noted that, the defendant no.11 has not pressed
prayer clause (a) of notice of motion and only requested to consider
prayer clause (b) as stated supra.
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2 Ord. in NM no 2772- 2019, in Suit no.1677 of 2009
3. In short, it is contention of defendant no.11 that, plaintiffs
have filed suit for declaration and permanent injunction against
defendants. In Appeal from order no. 866/2009, the Hon’ble High
Court
vide order dated 27th August, 2009 was pleased to appoint the
Court Receiver in respect of flat no. 11-A, (1450 sq.fts.) 11th floor Vidya
Nivas Co. Operative Society Limited, Plot No.2, Siri Road, bearing C.S.
No. 392 and 1/392 of Malabar and Cumbulla Hill Division, and S. No.
7298, admeasuring 1631 sq.yards and (ii) Basement Property, Vidya
Apartments, Plot No.2, Siri Road, bearing C.S.No.392 and 1/392 of
Malabar and Cumbulla Hill Division, and S. No. 7298, admeasuring
6274 sq.fts., (herein after referred to as “Suit premises”).
4. It is further contended that
vide an order dated
20/04/2016 the Court Receiver was discharged, as the plaintiffs failed
to appear in the Appeal. However,
vide an order dated 19/04/2017,
Court Receiver was re-appointed as the plaintiffs filed an application for
recall and filing of the present suit.
5. It is contended that, due to the appointment of Court
Receiver, the defendant no.11 is unable to proceed under the
Securitization and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (in short “SARFAESI Act”). It is further
contended that, there is a complete deadlock where the defendants
actions under SARFAESI Act have been completely barred despite
specific bar against Civil Court in taking action in a matter in which
SARFAESI action is pending. The Court Receiver was appointed for an
interim period, i.e., till final disposal of notice of motion taken out by
the plaintiffs.
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3 Ord. in NM no 2772- 2019, in Suit no.1677 of 2009
6. It is further contended that, prayer clause (a) to (h) of the
suit pertains to restraining defendant no.11 from taking action Under
SARFAESI Act cannot be granted in view of a specific bar under section
34 of the SARFAESI Act. DRT/ DRAT alone has the power to deal with
the matter arising out of SARFAESI Act.
7. It is contended that, the present suit filed by the plaintiff
seems to be a “Proxy litigation” at the hands of defendant no.2 only to
escape the ultimate result of non-payment of the loan availed from
defendant no.11. A lot of time has been lost due to appointment of
receiver in this matter. The defendant no.11 has gone from pillar to post
to recover its legitimate dues. Nothing in the present suit can bar this
defendant from taking action under the SARFAESI Act. This Court
cannot appoint the Court Receiver in a matter which is pending before
the learned DRT. Defendant no.11 wishes to take action against the
defendant no.7 and 8 by proceeding under section 14 of the SARFAESI
Act. However, due to appointment of Court Receiver on the suit
premises/ mortgaged properties, defendant no.11 is unable to proceed
under SARFAESI Act. Therefore, the Court Receiver ought to be
removed to unable to this defendant to take necessary action under the
SARFAESI Act. Hence the notice of motion.
8. The plaintiff strongly opposed the notice of motion by filing
reply on affidavit. It is submitted that after passing of the order of
appointment of Court Receiver, there has been absolutely no change in
circumstances which would enable to defendant no.11 to take out any
proceeding for discharge of the Court Receiver. The defendant no.11
has not challenged the order of appointment of Court Receiver before
any forum. Thus, the defendant no.11 now has been estopped from
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4 Ord. in NM no 2772- 2019, in Suit no.1677 of 2009
challenging the same. It is contended that the Court Receiver presently
is custodia legis and in view thereof the rights of all the parties
concerned are protected. If the Court Receiver is discharged then,
naturally plaintiff would suffer prejudice. The notice of motion taken
out by the defendant no.11 being devoid of substance and merits is
liable to be rejected.
9. Heard the learned advocate for the defendants no.11 and
plaintiff at length. Perused the record.
10. Following points arise for my determination to which I have
recorded my findings with reasons as follows: -
Sr. No. Points Determination
1. Whether the defendant no.11 is
entitled for the relief claimed in the
notice of motion?
No
2. What order? As per final order.
REASONS
As to Points no.1: -
11. The defendant no.11 has filed the present notice of motion
with sole intention that due to the appointment of Court Receiver in
respect of suit property, it is unable to proceed under the provisions of
SARFAESI Act for sale of the suit properties. It is further contended that
as the provisions of SARFAESI Act is attracted here, hence the Civil
Court has no jurisdiction to deal with the matter. The jurisdiction lies
with DRT/DRAT. Thus, the Court Receiver, High Court Bombay needs to
be discharged.
12. Here, it is to be noted that, the Hon’ble High Court of
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5 Ord. in NM no 2772- 2019, in Suit no.1677 of 2009
Bombay
vide an order dated 27/08/2009, passed in Appeal from order
no.866/2009 appointed Court Receiver, Bombay High Court as the
Receiver of the suit properties.
13. It is further to be seen that, the Hon’ble High Court
vide an
order dated 20/04/2016 dismissed appeal from order no. 1366/2020
for non-prosecution. The Hon’ble High Court also discharged the Court
Receiver without passing the accounts. It further reveals that, the
Hon’ble High Court
vide order dated 19/04/2017, passed in Civil
Application no. 869/2016, in appeal from order no.1366/2010 was
pleased to allow it and thereby restored the appeal. The Hon’ble High
Court further held that, “Now, in view of exceeds of pecuniary
jurisdiction the appellants would have to file a fresh suit in City Civil
Court at Bombay to redress their grievances and in that case, the City
Civil Court at Bombay would anyway have to entertain such a suit. In
the premises, the appeal from order is allowed by setting aside the
impugned order passed by City Civil Court at Bombay on 22/10/2010.
The notice of motion taken out by defendant no.5 Dena Bank is
dismissed. It is held that the City Civil Court at Bombay does have
jurisdiction to entertain and try the suit filed by the appellants”. The
Hon’ble Bombay High Court was further pleased to pass order thereby
order dated 20/04/2016 discharging the Court Receiver is recalled and
set aside. At the same time, the Hon’ble High Cour granted liberty to the
defendant no.11 to apply for discharge of the Court Receiver in the suit,
if so advised, before the City Civil Court at Bombay in the pending suit.
Accordingly, defendant no.11 has filed the present notice of motion.
14. Herein, it is to be seen that, this Court is also called the
report from the Court Receiver. Accordingly, he has submitted his report
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6 Ord. in NM no 2772- 2019, in Suit no.1677 of 2009
Exh.5. It is contended that, there is total outstanding of Rs.39,50,000/-
on the plaintiffs. Thus, it is contention of the defendant no.11 that as
plaintiffs failed to deposit said amount. Hence on that count also the
Court received needs to be discharged. However, it is to be seen that,
that this ground is not raised in the notice of motion. The defendant
no.11 ought to have taken out a separate proceeding for the same, if he
wishes to, as it required to give an opportunity to the plaintiffs to put
their submission. That issue cannot be dealt with while considering the
present notice of motion.
15. As stated supra, it is main contention of the defendant
no.11 that due to appointment of Court Receiver, it is unable to proceed
under the SARFAESI Act for recovery of loan amount. However, the
Hon’ble High Court already deal with this question and held that the
Civil Court has jurisdiction to try and entertain the suit. The Hon’ble
High Court
vide order dated 19th April, 2017 passed in Civil application
no. 869/16 while dealing with all these objections held that the City
Civil Court at Bombay does have jurisdiction to entertain and try the
suit filed by the appellant/ plaintiff. The defendant no.11 failed to show
any specific change in circumstances thereby the Court Receiver, which
was appointed by the Hon’ble High Court and again re-appointed
vide
an order dated 19/04/2017 needs to be discharged.
16. It is further to be seen that the defendant no.11 has never
challenged the order of appointment of Court Receiver. In such
circumstances, I am of the view that no case made out by the defendant
no.11 for discharge of the Court Receiver. Hence, my answer to point
no.1 is in the negative.
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As to point no.2:
17. In view of my above discussion, I pass the following order:
ORDER
1. Notice of Motion No.2772/2019 stands rejected.
2. Notice of Motion stands disposed off accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.19.08.2023 (C.R. No.1)
Dictated on : 19.08.2023
Transcribed on : 22.08.2023
Checked & Signed on : 23.08.2023
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8 Ord. in NM no 2772- 2019, in Suit no.1677 of 2009
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 23.08.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 19.08.2023
JUDGMENT/ORDER signed by P.O. on 23.08.2023
JUDGEMENT/ORDER uploaded on 23.08.2023
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