1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION NOTICE OF MOTION NO. 2274 OF 2007 IN SUIT NO. 419 OF 2002 H.D.F.C. Ltd. .... Plaintiff. V/s. Banerjee Sujaya & Anr. .... Defendants. And M/s. Ansal Buildwell Ltd. ... Respondent. ....... Mr. C.M. Lokesh i/b. Lex forum for the Plaintiff. Mr. Naushad Engineer i/b. RMG Law Associates for Defendants 1 and 2. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 11TH JANUARY 2008. P.C. :- In the suit which has been instituted for the recovery of ant amount of Rs.25.24 lakhs, being the balance due and payable under a 2 housing loan facility extended by the Plaintiff to the Defendants, the Court Receiver was appointed as a Receiver of a residential flat by an order dated 7th January 2004. The Plaintiff has now taken out a Notice of Motion seeking the leave of the Court to take recourse of its powers under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The permission of the Court is necessitated in view of the fact that the property is custodialegis Counsel appearing for the Defendants submits that the permission which has been sought from the Court should not be construed in any manner as an adjudication by this Court on the entitlement of the Plaintiff to proceed under the Securitization Act since the Defendants would in appropriate proceedings desire to contest the issue as to whether a security interest was created in favour of the Plaintiff. There is no reason why the prayer which has now been made before the Court for permitting the Plaintiff to take recourse to its rights 3 under the Securitization Act should not be granted. At the same time, this would be subject to such rights and remedies as are available in the law to the Defendants in the event that the Plaintiff takes such proceedings under the Securitization Act as are open in law. The permission of the Court would, however, be necessary since at present the property is custodialegis. The Notice of Motion is accordingly disposed of by granting liberty to the Plaintiff to take recourse to such action as may be open in accordance with the provision of Securitization Act upon which the Court Receiver shall stand discharged in terms of prayer clause (b) of the Notice of Motion. However, it is clarified that in the event that any such proceedings are adopted by the Plaintiff, the Defendants would be at liberty to take recourse to such remedies as are available to them in accordance with law and this order shall not be construed as amounting to any adjudication of the questions which may arise in those proceedings. The Notice of Motion is accordingly allowed, in the aforesaid terms. 4 -------