1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL (L) NO. 136 OF 2009 IN NOTICE OF MOTION NO. 1501 OF 2008 IN SUIT NO. 1144 OF 2008 ICICI Bank Ltd and Another .. Appellants Vs Nilesh Rajbhar .. Respondent Mr. Vishwanath Mannadiar i/b Mannadiar & Co for the Appellants Mr. Rahul Pandey i/b Pandey & Co for the Respondent CORAM : B.H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ DATE : 17th February, 2010 P.C.: 1. Heard. 2. Admit. 3. The Respondent – Plaintiff waives service. 4. This Appeal arises from the interlocutory order passed on 05.08.2008 allowing the Notice of Motion No. 1501 of 2008 filed in Suit No. 1144 of 2008 in terms of prayer clauses (a) and (b). 5. The present Respondent has instituted Suit No. 1144 of 2008. The 4b.APPL136-09 2 Plaintiff had borrowed a loan from Defendant No. 1 – Bank for purchase of a commercial vehicle and it was hypothecated with the bank. On account of non payment of monthly equated installments, the bank had issued notice and the vehicle was seized on 17.11.2003 and it is, under these circumstances, the suit was filed for declaratory reliefs as well as for mandatory injunction. 6. When the Notice of Motion No. 1501 of 2008 was taken out up for hearing on 14.07.2008, the Plaintiff had filed an affidavit of service and none present on behalf of the Defendants. It was stated before this Court that the Plaintiff’s letter dated 31.01.2008 was not replied to and even a copy of the loan agreement was not furnished to the Plaintiff. The trial Court was pleased to grant ad-interim relief in terms of prayer clauses (a) and (b) and directed to issue notice to the Defendants. 7. It is submitted by the learned counsel for the Defendants that this notice was served on a wrong branch and therefore, the concerned branch of Defendant No. 1 – Bank was not aware till 05.08.2008 regarding the order passed on 14.07.2008 and therefore, it could not be represented in the suit. An exparte order came to be passed on 05.08.2008, thereby confirming the interim order passed on 4b.APPL136-09 3 14.07.2008. 8. The affidavit filed by Shri. Sunil Narendra Agravat , the Manager of Defendant No. 1 – Bank along with its annexures goes to show that the subject vehicle was sold by auction in December, 2007. On 22.01.2008, the Bank had informed the Plaintiff about the sale of the vehicle and the fact that the sale proceeds were deposited in his accounts. On 19.03.2008, Defendant No. 1 – Bank through its advocate informed M/s. Pandey & Co, the advocates for the Plaintiff that the vehicle was sold in auction. The learned counsel for the Plaintiff disputes receipt of both these letters. 9. We are satisfied that the Bank could not appear before this Court on 05.08.2008 for the reasons not attributable to it and therefore,it is necessary to provide an opportunity to put up its case afresh before the learned trial Judge. In the course of fresh hearing of Notice of Motion No. 1501 of 2008, both the parties may be in a position to bring on record the documents regarding the sale of vehicle or otherwise and based on that, the Notice of Motion will have to be decided, de novo. The impugned order has resulted in miscarriage of justice. 10.Hence, this Appeal succeeds and the same is hereby allowed. The 4b.APPL136-09 4 impugned orders passed on 14.07.2008 and 05.08.2008 are hereby quashed and set aside. The Notice of Motion No. 1501 of 2008 is restored to the file and is remanded back for a fresh decision as per law after hearing both the parties. [SMT. V.K. TAHILRAMANI, J.] [B.H. MARLAPALLE, J.] 4b.APPL136-09