Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3568-19 in SU 2263-19 1 Date : 07.08.2025
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3568 OF 2019
IN
SUIT NO. 2263 of 2019
Madanlal Mohanlal Jangid : … Plaintiff
Versus
Reserve Bank of India (RBI) And ors. : … Defendants.
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Appearances :-
Ld. Adv. Sandeep Sheregar for plaintiff.
Ld. Adv. Martina Sapkal for defendant no. 10 to 14 and 23.
Ld. Adv. Shilpa Hadavale for defendant no. 2 to 6.
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CORAM : R.R. PATARE
JUDGE, (C.R.NO.08)
Heard on : 06.08.2025
Decided on : 07.08.2025
ORAL ORDER
(Dictated in open court)
1. From the pleadings and documents following points arises for
determination and findings thereon are recorded as under:
Sr.
No.
Points Finding
1 Whether plaintiff has made out prima facie
case for grant of injunction order as prayed?
In the negative.
2 Whether balance of convenience lies in
favour of plaintiff?
In the negative.
3 Whether plaintiff suffer irreparable loss? In the negative.
4 What Order? As per final
order.
2. Perused pleadings and heard advocate for the parties.
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NM 3568-19 in SU 2263-19 2 Date : 07.08.2025
3. This Notice of motion is taken out by plaintiff under Order 39
Rule 1 of Code of Civil Procedure seeking order restraining the
defendants from taking action against the plaintiff under SARFAESI Act.
The defendant no. 2 to 7 and 15 to 17 have filed reply and oppose the
notice of motion. According to plaintiff, the defendant bank in collusion
with defendant no. 12 to 19 committed fraud and mislead the plaintiff
in purchasing flat no. 7 situated on 2nd floor of Swagat Heights
Apartment. It is alleged that the defendants were knowing that the
construction of said flat was illegal and unauthorised despite that they
mislead the plaintiff and made the plaintiff to purchase the said flat. It
is further alleged that the defendant bank and the developer,
deliberately suppressed the fact that the land on which the building of
Swagat Hieghts Apartment is constructed is an occupancy Class II
Category. It is further alleged that the Najarana / Premium amount is
also outstanding. According to plaintiff the defendant bank has
initiated action against the plaintiff under the provisions of SARFAESI
Act. It is further stated that Collector has also initiated action for
recovery of Najarana / premium amount under the provision of
Maharashtra Land Revenue Report.
4. Admittedly, plaintiff has purchased Flat no. 7 situated on 2nd floor
of Swagat Heights Apartment. The plaintiff also obtained loan from the
defendant bank for that purpose. Undisputedly, plaintiff did not repay
the loan amount. As a result of it, the defendant bank initiated
proceeding for recovery of loan amount under SARFAESI Act. The
proceeding for recovery of Najarana/ premium amount is also initiated
under Maharashtra Land Revenue Report.
5. The Ld. Advocate for plaintiff would submit that the plaintiff is
victim of fraud. He would further submit that the plaintiff is having
right to challenge the action of defendants before Civil Court. In support
of his submission the Ld. Advocate relied on judgment of Hon’ble
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NM 3568-19 in SU 2263-19 3 Date : 07.08.2025
Supreme Court in the case of
Mardia Chemicals Ltd. and Ors. V/s.
Union of India and Ors. reported in (2004) 4 Supreme Court Cases 311.
From the perusal of Section 34 of SARFAESI Act, it is seen that the
jurisdiction of the Civil Court is barred in respect of matters which a
Debts Recovery Tribunal or an Appellate Tribunal is empowered to
determine in respect of any action taken or to be taken in pursuance of
any power conferred under the SARFAESI Act. In the case of cited
supra the Hon’ble Supreme Court is pleased to observe that the
jurisdiction of Civil Court can be invoked where the action of secured
creditor is fraudulent or when the claim is untenable. In the case on
hand, plaintiff alleges that the title of flat in question was not
marketable, however, defendants mislead the plaintiff and made him to
purchase the flat. The plaintiff is making allegations against the
defendants for making false report as regards the title of land on which
building Swagat Heights Apartment is constructed. However, plaintiff
has not pointed out as to what search he has taken before purchasing
the flat in question. It was the duty on the part of plaintiff to verify the
title of flat before entering into the disputed transaction. However, it is
seen that no such exercise was undertaken by the plaintiff. Admittedly,
the plaintiff did not pay loan amount and therefore, the defendant bank
has every right to recover the said amount from its borrower. The facts
of the case cited supra and the facts of the present case are not
identical. From the pleadings and documentary evidence on record, it is
seen that the transaction of flat is voluntary. The allegations regarding
fraud are vague and of general nature. The prayer for injunction is not
maintainable. It is settled that no person can be restrain from initiating
action in accordance with law. The defendant bank has initiated action
for recovery of outstanding loan amount in accordance with law. The
plaintiff is having opportunity to approach before Debts Recovery
Tribunal to agitate his grievance if any. The plaintiff has failed to made
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NM 3568-19 in SU 2263-19 4 Date : 07.08.2025
out prima facie case. The defendant has initiated proceedings in
accordance with law and therefore, will suffer irreparable loss in case
injunction is granted in terms of prayer clauses. The balance of
convenience also lies in favour of defendants. Hence, I answer point
no. 1 to 3 in the negative and following order is passed :
ORDER
1. Notice of Motion no. 3568 of 2019 is hereby rejected with no
order as to cost.
2. Notice of Motion no. 3568 of 2019 disposed off accordingly.
(R.R. Patare)
Judge, City Civil Court,
Dated :07/08/2025. Gr. Mumbai,
(C.R.08)
Directly Dictated on : 07.08.2025
Signed on : 07.08.2025
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NM 3568-19 in SU 2263-19 5 Date : 07.08.2025
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08/08/2025 at 6.00 p.m. Ms. V.V.Sawant
Name of the Judge (With Court room
no.)
R.R. Patare (Court Room No.08)
Date of Pronouncement of
JUDGMENT/ORDER
07/08/2025
JUDGMENT/ORDER signed by P.O.
on
07/08/2025
JUDGMENT/ORDER uploaded on 07/08/2025
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