1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3554 OF 2006 IN SUIT NO.2932 OF 2006 Umensh R. Shah & anr. .. .. Plaintiffs v/s. Bank of Baroda & ors. .. .. Defendants Mr.J.G. Shukla i/by M/s.G.H. Shukla & Co. for Plffs. Ms.Kavita Anchan i/by M/s.M.V. Kini & Co. for Defts. ---- CORAM : SMT.ROSHAN DALVI, J. Dated : 17th July,2009 P.C. : 1.The Plaintiffs have sued Defendant No.1-Bank for a declaration that the documents purported to be executed by them are void, for cancellation of the documents and by injunction restraining the Bank from acting upon it. The Plaintiffs have joined Defendant Nos.2 and 3, who have obtained overdraft facility from the Bank. The Plaintiffs are owners of the immovable property sought to be mortgaged to the Bank under equitable mortgage by way of deposit of Title Deeds. The deposit with the Bank came to be made on 13.11.2001 under a Memorandum of Deposit of Title Deeds for creation of an equitable mortgage. Under the Memorandum, executed and signed by the Plaintiffs, the Plaintiffs deposited the original ownership Agreement dated 31.1.1968 of their predecessor-in-title, the copy of the Agreement dated 2 23.5.1985 in their favour, the original share certificate of the Society in respect of the suit flat and the original letter of No Objection of the Society dated 2.11.2001 for creation of the equitable mortgage. The mortgage was created in respect of flat No.19, admeasuring 690 sq. ft., B Building, 2 nd floor, Geeta Bhavan Co-operative Society Limited, 93, Bhulabhai Desai Road, Mumbai 400 026. It may be mentioned that the Plaintiffs are shown to be the guarantors who had attended the Bank on that day at a specified time stated in the Memorandum along with two officers of Defendant No.1-Bank, whose names have been incorporated in ink in the printed Memorandum. 2.It is a case of the Plaintiffs that the original documents were misplaced. Consequently, the Plaintiffs have deposited not only the copy of that documents but also the original documents of the previous title- holder, the original share certificate and the original NOC of the Society. 3.The overdraft facility was granted. The Plaintiffs were the guarantors. Their liability was co-extensive with that of the principal debtors. The Bank could sue either the principal debtors, who were Defendant Nos.2 and 3 herein or guarantors, the Plaintiffs herein, in respect of the facility. 3 4.The Plaintiffs sued the Bank as well as the principal debtors, Defendant Nos.2 and 3 herein, who are the Plaintiffs son and daughter-in-law respectively, in the Bombay City Civil Court Suit No.3721 of 2006. The Plaintiffs withdrew the said Suit. In the order of withdrawal of the said Suit dated 14.8.2006, the Plaintiffs are shown as guarantors. That position is not denied. The Bank was to take possession of the suit premises in accordance with law from Defendant Nos.2 and 3 herein. The order recites the statement of the Advocate of the Bank that notices will be issued in accordance with law and the Bank will proceed against the Plaintiffs as the guarantors also in accordance with law. That law is the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act, 2002). The Bank has proceeded. It may be mentioned that the Bank can proceed either against the principal debtors or against the guarantors under the said legislation. The Bank has obtained an order of the Debts Recovery Tribunal (DRT) in Original Application No.306 of 2004 after service upon the Plaintiffs herein when the Plaintiffs remained absent despite service. The Plaintiffs have filed an Appeal against the said order. The Plaintiffs have not obtained stay of the order of the DRT dated 22.9.2006. 4 5.This Notice of Motion is taken out immediately after the said order was passed. The Affidavit-in-support of the Notice of Motion is dated 25th September 2006 and the Notice of Motion is registered on 10th October 2006. The Plaintiffs now seek an order that the documents have been fraudulently obtained by their son and the daughter-in-law and have been signed in blank and they were not properly notarized. All these aspects are to be considered under the Securitisation Act, 2002 by the relevant Court and which process is complete. No case for grant of any interim relief is made out. The Notice of Motion is dismissed. No order as to costs. (SMT.ROSHAN DALVI, J.)