:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3970 OF 2005 NOTICE OF MOTION NO. 3970 OF 2005 NOTICE OF MOTION NO. 3970 OF 2005 IN IN IN SUIT NO. 3393 OF 2005 SUIT NO. 3393 OF 2005 SUIT NO. 3393 OF 2005 Anchor Health & Beauty Care Pvt. Ltd. & Anr. ..Plaintiffs versus Yuvraj Industries Limited ..Defendants Mr. Shailesh Shah with Ms. S. John i/b. M/s. M. P. Savla & Co. for the Plaintiffs. Mr. Chirag Balsara wtih Ms. Yogini Gada i/b. M/s. Harakhchand & Co. for the Defendants. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 7TH JANUARY, 2008. DATE : 7TH JANUARY, 2008. DATE : 7TH JANUARY, 2008. P.C. P.C. P.C. . By this Notice of Motion, the plaintiffs pray for a Receiver in respect of the suit property i.e. a Residential Hotel known as Hotel Yuvraj situate in a building admeasuring 603.99 sq. metres or thereabouts at Surat in the State of Gujarat bearing CTS No. 278/A/1/8 in Ward No. 7 situate at Gulambaba Mills (Hatim Mill) Compound, Opp: Surat Railway Station. There is no dispute about the fact that the aforesaid property along with certain other properties were mortgaged by a Registered Deed of :2: Mortgage dated 21.6.2002 between the defendants and the plaintiffs. This mortgage was executed because the defendants took a loan of about Rs.4,00,00,000/- from the plaintiffs, out of which a sum of Rs.3,90,00,000/- appears to be due as on date. Clause 9 of the Memorandum of Equitable Mortgage at Exhibit ’C’ makes it clear that the mortgage was executed for securing repayment of the aggregate sum and is executed by depositing the Title Deeds relating to the property in the First Schedule with the mortgagees i.e. with the Plaintiffs at Mumbai. 2. The plaintiffs made initial demand by notice dated 16.7.2004 calling upon the defendants to repay the sum of Rs.3,90,00,000/- on the ground that the defendants had committed a breach of the terms of the Mortgage and the Agreement of Loan and on this ground the amount was called back. At this stage, the defendants raised a defence that the plaintiffs were not entitled to call back the entire amount for a mere non payment of interest. However, there is no dispute about the fact that by now i.e. after 30.6.2005 when the amount became due there has been no payment from the defendants of the principal sum. The plaintiffs therefore issued another demand :3: notice which has not been complied with by the defendants. 3. On this background, Mr. Shah, learned counsel for the plaintiffs prayed for appointment of the Receiver. 4. Mr. Balsara, learned counsel for the defendants submitted that the defendants had made a Reference before the BIFR which was rejected on 13.9.2005. The Defendants therefore filed Appeal before the AAIFR which was allowed by way of remand to the BIFR. Thereafter, the BIFR dismissed the defendants Reference on 1.8.2006. According to Mr. Balsara, therefore this suit which was filed on 21.11.2005 could not have been instituted and was barred by the provisions of Section 22 of The Sick Industrial Companies (Special Provisions) Act, 1985. Though the argument requires consideration, it does not appear to have any merit. Even if the suit is taken to have been instituted after the remand by AAIFR and the institution attracted the bar of Section 22 of the SICA, there is no doubt that the Reference before the BIFR was dismissed on 1.8.2006 after which the suit could not be said to be barred. :4: Even if the institution of the suit is taken to be void the papers remained in the Court even after the BIFR Reference was dismissed and the bar was lifted. Learned counsel for the defendants has not pointed out any requirement of law that it was incumbent upon the plaintiffs to take back the papers of the suit from the court and refile them after the bar was lifted. In any case, in my view, this would be a procedural requirement and cannot come in the way of the court considering the grant of interim relief at point of time when there is no bar to the entertainment of the suit. 5. Having regard to the circumstances of the case, and particularly the admitted fact that the loan and the mortgage are both admitted and also the fact that there has been no repayment of any substantial amount of the loan, it is just and convenient to appoint a Receiver over the property in question situated at Surat referred to in the Second Schedule and described above. Thus, a Receiver is hereby appointed over the suit property ie. Residential Hotel known as Hotel Yuvraj situate in a building admeasuring 603.99 sq. metres at Surat in the State of Gujarat bearing CTS No. :5: 278/A/1/8 in Ward No. 7 situate at Gulambaba Mills (Hatim Mill) Compound, Opp: Railway Station in the City Surat, Taluka Choryasi, District Surat. The Receiver shall take charge of the property but shall appoint the defendants as his Agent and shall fix the royalty therefor. Having regard to the fact that the residential Hotel is running in the premises, the Receiver shall not display the board at prominent place on the premises. Till the Receiver takes possession there shall be an injunction in terms of prayer clause (b). Notice of Motion disposed of. Order accordingly. 6. Court Receiver to act on an authenticated copy of this order. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)