1 NMS.1929/2010-S.1416/2010 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1929 OF 2010 IN SUIT NO. 1416 OF 2010 M/s. Mount Mary Enterprises ...Plaintiffs Vs. The Authorised Officer Bank of Baroda & Ors. ...Defendants Ms. Yasmin E. Tavaria, Advocate for Plaintiff Mr. Anant B. Shinde, Advocate for Defendant No.1 Mr. Vikas K. Singh, Advocate for Defendant No.2 Ms. Alisha Lambay, Advocate i/b. Lambay & Co., for Defendants 3 & 4 CORAM : SMT. ROSHAN DALVI, J. Date of reserving the order: 29th July 2010 Date of pronouncing the order: 24th August, 2010 ORDER : 1. The Defendants have taken out this Notice of Motion for rejection of the plaint under Order 7 Rule 11 of the C.P.C on the ground that the inherent jurisdiction of the Court to try the suit as barred under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act) and Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (DRT Act). 2 NMS.1929/2010-S.1416/2010 2. The Defendants have relied upon number of judgments Bank of India Vs. N. Natarajan & Anr. = 2007 (4) CTC 360 (s) 2007 (5) MLJ 1206, the Yuth Development Co-op. Bank Ltd. Vs. Balasaheb Dinkarrao Salokhe in the Civil Revision Appln. 148/2004 of this Court by Justice J.H. Bhatia, dated 26/3/2008, the Saraswat Co-op. Bank Ltd. Vs. Madan S. Jha of this Court by Justice R.C. Chavan, dated 1/7/2010, Allahabad Bank Vs. Canara Bank AIR 2000 SC 1535 and Hardesh Ores (P) Ltd. Vs. Hede and Company (2007) 5 SCC 614. 3. The Plaintiff has sued for declaration that the mortgage deed dated 4th September 2006 was illegal and the action taken by Defendant No.1 Bank thereupon was also illegal as also for recovery of possession of the premises attached by the Bank. However, the Plaintiff’s claim is not in respect of the loan granted by the Bank. The Plaintiff has not disputed the loan granted. The Plaintiff has not sought to challenge the repayment of the loan granted by the Bank. The Banks proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 are in respect of the loan granted by the Bank alone. 4. The Plaintiff has claimed the declaration that the mortgage executed as mentioned in the plaint is illegally executed because the executants had no title to the property on the date of the transfer created by her as the mortgager claiming to be the absolute owner of the property mortgaged. 5. The Plaintiff has claimed that he was put in vacant possession of the 3 NMS.1929/2010-S.1416/2010 premises sought to be attached and sold by the Bank. That case has been seen to be prima facie made out in the Notice of Motion taken out by the Plaintiff in which interim relief has been granted today. The Plaintiff has sought restoration of his possession not from the Bank upon attachment by the Bank, but from Defendants 2,3 and 4 in the suit upon his claim that he was conveyed the suit property prior to the execution of the mortgage by the Bank. 6. The claim of the Plaintiff is in respect of the transfer of property by conveyance to him and not under the Securitisation Act. 7. The inherent jurisdiction of the Civil Court is, therefore, not barred for determination of that claim. None of the above judgments apply to this case. The plaint, therefore, cannot be rejected under Order 7 Rule 11 of the C.P.C. 8. Notice of Motion is, therefore, dismissed. No order as to costs. (SMT. ROSHAN DALVI, J.)