1 nms-1283-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.1283 OF 2008 IN SUIT NO.771 OF 2002. ICICI Bank Limited. .... Plaintiffs. vs. Unimers India Limited & Ors. ..... Defendants. .... Mr. Mahesh Patil, a/w. Mr. Shravanth P., i/b. M/s. M.K. Ambalal & Co., for Plaintiffs. Mr. D.d. Madan, Senior Counsel, a/w. Mr. Ricab Chand & Mr. L.A. Robens, M.V. Sujit S. Suryavanshi, i/b. Vigil Juris, for Defendant No. 1. Ms. Hema Desai, i/b. Singhi & Co., for Defendant No.5. .... CORAM : S. J. KATHAWALLA, J, DATE : 27TH SEPTEMBER, 2011. P.C.: The above Suit is filed by the Plaintiffs in their capacity as Debenture Trustees for the amounts payable by the Defendant No.1 under and in respect of 12.5% Secured, Redeemable, Non- Convertable Debentures, aggregating to Rs.997 lakhs together with interest, costs, charges and other monies payable at the contractual rates in accordance with the terms of the issue. 2. At all material times the Defendant No.1 was and continues to be seized and possessed of and/or sufficiently entitled to immoveable properties as more particularly described in Exhibit A to the Plaint 2 nms-1283-08 which properties are mortgaged in favour of the Plaintiff by deposit of title deeds. 3. At all material times, the Defendant No1 was and continues to be the owner of the moveable properties as more particularly described in Exhibit B to the Plaint, which properties are hypothecated in favour of the Plaintiffs. 4. The Plaintiffs had earlier taken out Notice of Motion No.791 of 2002 for appointment of Court Receiver interalia in respect of properties described in Exhibits A and B to the Plaint and for an injunction restraining the Defendants from creating any third party rights in respect of the said properties. 5. By an Order dated 29th March, 2004 this Court directed that no third party rights be created in the properties described in Exhibits A and B to the Plaint. The Plaintiffs were however granted liberty to renew their request for appointment of a Court Receiver at a later stage. 6. Pursuant to the said liberty granted, the Plaintiffs have taken out the above Notice of Motion inter alia seeking appointment of a Court Receiver of the Securities more particularly described in Exhibits A and B hereto, with all powers under Order XL Rule 1 R of the Code of Civil Procedure 1908, including power to take possession thereof and sell or dispose off by way of public auction or private treaty, with a direction to pay the net sale proceeds to the Plaintiffs 3 nms-1283-08 towards satisfaction of their claim in the Suit. 7. Shri Patil, the Learned Counsel appearing for the Plaintiffs has at the outset informed the Court that the Plaintiffs are restricting the relief sought by them only to the extent of seeking the appointment of a Court Receiver to take symbolic possession of the properties described in Exhibits A and B to the Plaint and not to disturb the possession of the Defendants No.1 in any manner whatsoever. The Learned Advocate appearing for the Plaintiffs has informed the Court that the Plaintiffs are entitled to this relief against the Defendants since the Defendant No.1 till date has not paid the amounts due towards principal as well as interest to the Debenture Holders. He submits that instead the Defendants are trying to take shelter under Corporate Debt Restructuring (CDR) mechanism and are wrongly pressuring the Plaintiffs to withdraw the Suit. In support of his contention that a Court Receiver be appointed for the mortgaged property, the Learned Advocate appearing for the Plaintiffs has relied on the decision of a full bench of this Court in State Bank of India vs. Trade Aid Paper & Allied Products (India) Pvt. Ltd. & Ors. AIR 1995 268 and Industrial Credit & Investment Corporation of India Ltd. & Ors. vs. Karnataka Ball Bearings Ltd. & Ors. AIR 1999 Supreme Court 3438. 8. The Learned Senior Advocate appearing for Defendant No.1 submits that the Plaintiffs are completely secured and the Defendant No.1 has no intention to dispose off or create third party rights in respect of the properties mortgaged/hypothecated to the Plaintiffs. It is submitted that the Plaintiffs are secured creditors and therefore 4 nms-1283-08 have the choice to decide whether they are interested in being part of the CDR Scheme or remain out of the said Scheme. It is denied that Defendant No.1 is putting any pressure on the Plaintiffs to withdraw the Suit. It is submitted that no case is made out for appointment of a Court Receiver, and the decisions relied on by the Plaintiff are not applicable to the facts and circumstances of the present case, more particularly since the Advocate for the Plaintiff at the outset made a statement that he is restricting his relief to the extent of seeking an appointment of a Court Receiver only for the limited purpose of taking symbolic possession of the mortgaged/hypothecated properties. It is therefore submitted that the Notice of Motion deserves to be dismissed. 9. I have considered the submissions advanced on behalf of the Plaintiffs as well as the Defendant No.1. Admittedly the properties described in Exhibits A and B to the Plaint have been mortgaged to the Plaintiffs. Since the year 2004, the Defendant No.1 has been restrained from creating any third party rights in respect of the said properties. It is not the case of the Plaintiffs that the Defendant No.1 over the years has acted in a manner whereby the securities are wasted and/or its value has been depleted. The Plaintiffs themselves have at the very outset stated that they are not pressing for the Defendant No.1 to be dispossessed of the mortgaged properties nor are they seeking sale of the mortgaged properties, but are only seeking appointment of a Court Receiver to take symbolic possession of the properties. In view thereof, the ratio laid down in the decision of this Court in the case of State Bank of India (Supra) and the ratio laid down by the Hon’ble Supreme Court in the case of Industrial 5 nms-1283-08 Credit & Investment Corporation of India Ltd. (Supra) are of no assistance to the Plaintiffs. Only because the Defendant No.1 is trying to invoke the CDR mechanism, the Plaintiffs who are admittedly the secured creditor and who can always stay out of the CDR Scheme cannot be heard to say that their rights in respect of the said securities are in any way diluted and/or prejudiced. In the circumstances, I am of the view that the Plaintiffs have not made out any case for appointment of a Court Receiver to take symbolic possession of the properties described in Exhibits A and B to the Plaint. The Notice of Motion is therefore dismissed. However, since the Suit is of the year 2002, and is not disposed off in the last 9 years, the hearing of the Suit is expedited. The Defendants are directed to file their Written Statements, if not so filed till date, on or before 21st November, 2011. Place the Suit for framing of issues on 22nd November, 2011, high on board. The Notice of Motion is accordingly disposed of. [ S. J. KATHAWALLA, J. ]