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.2050 of 2008 NOTICE OF MOTION NO.2050 of 2008 NOTICE OF MOTION NO.2050 of 2008 IN IN IN CHAMBER SUMMONS NO.1291 OF 2007. CHAMBER SUMMONS NO.1291 OF 2007. CHAMBER SUMMONS NO.1291 OF 2007. IN IN IN SUIT NO.2141 OF 2006. SUIT NO.2141 OF 2006. SUIT NO.2141 OF 2006. Housing Development Finance Corporation Limited ..Plaintiff versus Ganapathy Mutthu Kumar & Ors. ..Defendants Mr.Vishal Kanade i/b. Negandhi Shah & Himayatullah for the Plaintiffs Mr.Mayur Shetty i/b. Kini & Co. for the Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 6th August, 2008. DATED : 6th August, 2008. DATED : 6th August, 2008. P.C. 1. This motion is taken out by the respondent so as to seek modification of the Order dated 23.8.2007 passed in Chamber Summons No.1291 of 2007. Affidavit in reply has been filed. 2. Learned Advocate for the respondents submitted that the Order dated 23.8.2007 suffers defect in as much as the Court could not have passed the Order of Sale since the action which is taken by the respondents under Securitisation And Reconstruction of the Financial Assets and -2- Enforcement of Security Interest Act, 2002 (hereinafter referred to as the said Act) is independent of the present proceedings and it was necessary for the plaintiff to move the appropriate Authority. 3. On hearing the arguments advanced by both the sides, it is clear that the present respondents who have taken out the Notice of Motion are aggrieved by Order dated 23.8.2007. In such a situation the respondent ought to have instituted a proceeding challenging this Order dated 23.8.2007 and the present Notice of Motion seeking modification of the Order should not have been filed. On hearing this view of the Court, the learned Advocate appearing for the respondent prayed for withdrawal of this motion and sought liberty to institute appropriate proceeding challenging the Order dated 23.8.2007. 4. I am inclined to grant the request made by the learned Advocate for the respondent. The Notice of Motion filed by the respondents is allowed to be withdrawn with liberty to the respondents to institute appropriate proceedings -3- challenging the Order dated 23.8.2007 passed in Chamber Summons No.1291 of 2007. The respondent shall serve the compilation of the suit proceeding upon the attorneys of the plaintiff. The respondents to give 48 hours notice and then move the appropriate forum for orders of stay if found necessary. There shall be no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)