: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF OF OF MOTION NO.4476 OF 2007 MOTION NO.4476 OF 2007 MOTION NO.4476 OF 2007 IN IN IN SUIT SUIT SUIT NO.1753 NO.1753 NO.1753 OF 2005 OF 2005 OF 2005 State Bank of Indore .. Plaintiffs. Versus Mr.Taher Ahmed Khan & Ors. .. Defendants. Mr.N.K.Singh i/b.M/s.Vyas & Bhalwal for plaintiffs. None for defendants. CORAM CORAM CORAM : : : R.Y. GANOO, J. R.Y. GANOO, J. R.Y. GANOO, J. DATE DATE DATE : 18th July, 2008. : 18th July, 2008. : 18th July, 2008. P.C.: P.C.: P.C.: 1. The plaintiffs claim that they had advanced certain amount of loan to defendant No.1 under Term Loan Agreement. Rests of the defendants, namely, defendants 2 and 3 are the guarantors. Defendant No.4 is the builder with whom the defendant No.1 had entered into an Agreement to purchase the flat. Defendant No.5 is the Saraswat Co.Op. Bank Ltd., to whom, according to the plaintiffs, defendant No.1 had mortgaged the said flat after taking : 2 : loan from the present plaintiffs. 2. The present notice of motion is taken out by the plaintiffs for two reliefs. By the prayer clause (a), the plaintiffs want that a Court Receiver of this Court should be appointed in regard to the suit flat, more particularly, described in prayer clause (a) of the notice of motion. The plaintiffs have also prayed for an order of injunction, restraining the defendants from dealing with, disposing off, parting with or creating any third party rights in regard to the suit flat. 3. Defendants 1 and 2 are served. An affidavit of service was filed sofar as defendants 4 and 5 are concerned. 4. I have heard learned Advocate Mr.Singh. I have perused the text of the affidavit in support of the notice of motion. 5. Learned Advocate Mr.Singh submits that the defendant Nos.1,2 and 3 have not repaid loan amount and that defendant No.1 has mortgaged the suit flat to defendant No.5- Saraswat Co.Op.Bank Ltd. by entering into second mortgage, in violation of the terms of the loan advanced by the present plaintiffs to defendant No.1. Learned Advocate Mr.Singh submits that this itself is a : 3 : ground for appointment of Court Receiver, High Court, Bombay in terms of Order 40, Rule 1 of the Code of Civil Procedure. He submitted that if the Court is of the view that the appointment of the Court Receiver could not be granted, atleast, an order of injunction is required to be granted as prayed for in terms of the prayer clause (b) so as to protect the interest of the plaintiffs. He prayed for passing an order of injunction in terms of the prayer clause (b) of the notice of motion. 6. For the reasons to follow, I am inclined to dismiss the present notice of motion. The plaintiffs have approached this Court on account of defendants 1, 2 and 3, committed default in payment of the loan advanced to defendant No.1 as stated in paragraph 2 of the affidavit dated 27th November, 2007, filed by the plaintiffs. This has been made a ground for appointment of Court Receiver or for passing an order of injunction. 7. In my view, the plaintiffs have failed to make out a case for appointment of a Court Receiver or for grant of injunction. Merely because the defendants 1 to 3 have not paid the loan amount cannot be a ground to appoint a Receiver or to grant an order of injunction, particularly, when there is no case made out by the plaintiffs that defendants 1 to 3 are likely to prejudice the rights of the plaintiffs with reference to the suit flat. : 4 : 8. The argument advanced by the learned Advocate Mr.Singh that execution of a mortgage in favour of defendant No.5- Saraswat Co.op.Bank Ltd., amounts to breach of terms of conditions of loan agreement. If that is so, it will be open for the plaintiffs to take steps in terms of the loan agreement and certainly that cannot be a ground to appoint a Court Receiver or to pass an order of injunction. 9. For the reasons mentioned aforesaid, present notice of motion is required to be dismissed. Hence, I pass the following order :- a) Notice of Motion is dismissed. b) Since none of the defendants have remained present, there shall be no order as to costs. (R.Y.GANOO, (R.Y.GANOO, (R.Y.GANOO, J.) J.) J.)