1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4619 OF 2007 IN NOTICE OF MOTION NO. 741 OF 2004 IN SUIT NO. 718 OF 2004 Mahesh Natwarlal Kothari & Anr. .. Plaintiffs Vs. M/s. Gaurav Continental Trading Company Limited. .. Defendant and Central Bank of India .. Applicant Mr. Sean Wasoodew for the Plaintiffs. Mr. M. M. Vashi i/b M. P. Vashi & Associates for the Defendant. Mr. R. J. Singh for the Applicant. CORAM : MRS. R. S. DALVI, J. DATE : 18th March, 2010. P.C. The applicant bank has been mortgaged the suit property. The suit property is a basement in plot No.10, Nutan Laxmi Co-operative Housing Society Ltd. 10th Road, Juhu Vile-Parle Development Scheme, Mumbai. The suit is in respect of an agreement between the plaintiffs and the defendant. The Court Receiver has been appointed in respect of suit premises. The defendant was in possession of the suit premises. The defendant has taken a loan from 2 applicant bank. The defendant has deposited the title deeds of the suit premises with the bank. The title deeds are shown in schedule 1 of the Memorandum of Deposits with the bank. The bank has granted a loan to the defendant. The plaintiffs have guaranteed the loan. The transaction between the applicant Bank and the defendant is therefore known to the plaintiffs. A Suit has been filed in the D.R.T. The defendant has sought to proceed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the Securitisation Act). 2. The bank and the defendant have proposed a settlement. Part payment under the settlement is made. If, full payment is not made as per the settlement, the bank would be entitled to proceed under the Securitisation Act. The bank has, therefore, applied for discharge of the Receiver. 3. The plaintiffs’ Advocate contends that, the bank has moved this application a year after knowledge of the appointment of Court Receiver. The application is in the nature of Review Petition. It is, therefore, barred by limitation. He also contends that the bank has come to Court with unclean hands. 4. This application is by way of notice of motion is 3 not by way of review. Hence, the application is not barred by limitation or suffering from laches. It is only when the bank desires or requires to proceed under the Securitisation Act that the bank may apply for discharge of Court Receiver. Until then the appointment of Court Receiver would not prejudice to the bank. In fact, the appointment of Court Receiver is to prevent waste of the suit property and would enure for the interest of the Bank just as well as that of the parties to the suit. 5. The application on merits shows that the plaintiffs in the suit contend that the suit basement is the property of the plaintiffs. Both the plaintiffs have separately signed the letter of guarantee for advances and credit made to the defendant by the Bank. The Bank can recover the amount as much from the plaintiffs as much from the defendant. The Bank can attach and proceed against the properties as much of the plaintiffs and as that of the defendant. The liability of the plaintiffs is coextensive with that the liability of the defendant to the Bank. Consequently, if the bank desires to proceed under the Securitisation Act no case is made out for not allowing to bank to do so. 6. Mr. Vashi contended that grant of prayer (d) would suffice. Hence the applicant Bank shall be entitled to proceed under the Securitisation Act despite the appointment of Court Receiver. Hence prayer (d) is 4 granted. Notice of motion is disposed of accordingly. 7. This order is stayed for two weeks. (R. S. DALVI, J.)