*1* caw.316.09.238.2474.10.wp.732.08.905.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.316 OF 2009 IN WRIT PETITION NO.732 OF 2008 Life Line Hospital and Medical Research Centre (India) Pvt.Ltd. and others. ..Applicants -Versus- C.K.P. Co-operative Bank Ltd. and others. ..Respondents WITH CIVIL APPLICATION NO.238 OF 2010 AND CIVIL APPLICATION NO.2474 OF 2010 IN CIVIL APPLICATION NO.316 OF 2009 IN WRIT PETITION NO.732 OF 2008 Life Line Hospital & Medical Research Centre (India) Pvt.Ltd.. ..Applicants -Versus- C.K.P. Co-operative Bank Ltd. and others. ..Respondents. .......... Mr.Shriram S. Kulkarni, for the Applicant No.5/ Dr.Koshy George. Mr.S.N.Bhosale, AGP, for the Respondent No.2/State of Maharashtra. Mr.Tejas Dande, for the Respondent No.5/Sahyadri Hospitals Ltd.. Mr.Vishal Ghosalkar, for the Life Line Hospital. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 16th June, 2011. P.C.: 1 This Civil Application No.316/2009 is moved by in all 08 *2* caw.316.09.238.2474.10.wp.732.08.905.sxw Applicants. Further, it is reported that there are differences between the Applicants inter-se. The Applicant No.5 Dr.Koshy George and the Applicant Nos.1 to 4 and 6 to 8 purport to form one group. However, the Applicant No.5-Dr.Koshy George also claims to represent the Applicant No.1, a private limited company. 2 At initial stage, it appears that all Applicants were together and they sought relief that the Respondent No.1 Bank be directed to release all the secured assets as described in Schedule-II and release the original title deeds of the properties together with other documents. They also seek a restraint order against the Respondent No.1 Bank from in any manner dealing with the secured assets. Prayer clause (d) of this Civil Application reads thus:- “(d) For declaration that Reg. Sale Certificates dated 17.11.2008 executed in favour of the Respondent No.4 (Exhibit “B” colly hereto) by Respondent No.1 in respect of Schedule I properties, are illegal and passed no legal title in favour of the Respondent No.4.” 3 Mr.Kulkarni, appears and claims to represent the Applicant No.5, whereas, Mr.Ghosalkar states that other Applicants do not wish to go ahead with the Applicant No.5 and they are claiming to be incharge of the Company. 4 In the light of these differences, I inquired from Mr.Kulkarni, learned counsel appearing for Dr.Koshy George as to how any relief can be granted on this application and even otherwise the prayer for a declaration in terms of clause (d) above cannot be granted in a Writ Petition which is already disposed of. 5 Mr.Kulkarni submitted that this Civil Application is already *3* caw.316.09.238.2474.10.wp.732.08.905.sxw admitted and therefore, must be heard on merits. Alternatively, he submitted that the Applicant No.5 cannot seek any relief by approaching the competent Civil Court because the Respondent No.1 Bank has purported to act in exercise of powers conferred by the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short “the Securitisation Act, 2002”). The Respondent No.1 Bank, after the consent terms were executed to which it is party and which consent terms specifically record that the dues of the Bank has been settled by one Sahyadri Hospital, proceeded to sell one of the immovable properties, which is not their security. The Respondent No.1 Bank could not have gone ahead and sold this property because the Applicant No.5 Dr.Koshy George guaranteed the repayment of the dues of the Companies. Once the Companies have been absolved from the liability to pay any sum and the consent terms record so, then, personal properties of the Applicant No.5 Dr.Koshy George could not have been sold. Mr.Kulkarni submits that if at all any relief has to be obtained from the competent Civil Court, the Applicant No.5 will have to place before that Court, the details pertaining to the sale and thereupon that Court would not be in a position to go ahead with that proceedings in the light of the bar created by Section 34 of the Securitisation Act, 2002. At the same time, Mr.Kulkarni submits that, the Respondent No.1 Bank has in furtherance of the so called sale, which is fraudulent and totally malafide, purported to confirm the arrangement with the purchaser-Ashwin Shah. Once the rights of the said Ashwin Shah have allegedly intervened, what would happen is that the Applicant No.5 will have to chase several persons and entities who may have dealt with the properties till date and thereafter. For all these reasons, Mr.Kulkarni submits that the Civil Application be heard and disposed of after hearing all parties. *4* caw.316.09.238.2474.10.wp.732.08.905.sxw 6 Bearing in mind that there are differences within the Applicants themselves and in any event once this Writ Petition is disposed of in the light of the consent arrangement and terms recorded therein, it will not be possible to grant any relief in this Civil Application. Further, grant of any relief would necessitate this Court holding an inquiry, in a disposed of matter, into the right, title and interest claimed by the Applicant No.5 in the immovable properties which are sold and disposed of by the Respondent No.1 Bank. Whether, this sale, after the consent terms were filed, is permissible or not and whether, the sale is not of the property which forms the part of security given to the Respondent No.1 Bank, are matters which require recording of oral evidence. It would require the parties to produce number of documents. This Court will virtually hold a trial as if this application is a civil suit and that is clearly impermissible. Further, I am not in agreement with Mr.Kulkarni that merely because the Respondent No.1 Bank asserts that it has exercised the powers under the Securitisation Act, 2002, that the Civil Court has no jurisdiction. Whether, the Bank has exercised the powers under the Securitisation Act, 2002 and whether, the properties stand released on account of the consent terms, are matters which will have to be first inquired by the Civil Court. The Civil Court cannot refuse to hold an inquiry, if fraud and malafides are alleged. Further, the Civil Court cannot refuse to take cognizance of such matters merely because there are other parties whose rights have allegedly intervened. According to Mr.Kulkarni, Sahyadri Hospital has a definite role to play in this entire deal and transaction. If the allegations, which are indeed serious, of collusion, fraud and malafides are made, then, certainly the law that is laid down in several decisions of this Court and emanating from the judgment of the Honourable Supreme Court in M/s Mardia Chemicals Ltd. & others v/s *5* caw.316.09.238.2474.10.wp.732.08.905.sxw Union of India, reported in (2004) 4 SCC 311, is that the bar under Section 34 of the Securitisation Act, 2002 is not straightway applicable. Therefore, all these aspects would necessitate the parties to approach the competent Civil Court, if they are aggrieved by the actions of the Bank, post execution and filing of the consent terms. This Court has a limited jurisdiction when the main Writ Petition had already disposed of. Now, the cause of action which has allegedly accrued, is based on the subsequent developments. In all these circumstances, I am of the opinion that this Civil Application is not the remedy of the aggrieved Applicant No.5 Dr.Koshy George and he will have to approach the competent Civil Court for adjudication of his rights in the immovable properties. 7 The other apprehension expressed by Mr.Kulkarni is also not well founded. Prima facie, the competent Civil Court will have to hold an inquiry to find out as to how the civil suit which may be filed questioning the developments post execution of the consent terms, can be said to be beyond the period of limitation prescribed by law. Which is the applicable article, how much time is provided therein and when time starts running, are all matters which will have to be gone into and today, straightaway, it cannot be said that the claim is time barred. 8 If the property sold is secured asset of the Bank and whether, it could have been sold before the property of the Company is disposed of, are also matters which would require thorough investigation. Lastly, whether, the sale deed could have been executed after the consent terms have been filed and the parties have acted in furtherance thereof and particularly, when the Bank is party thereto, is also a matter which must be decided by the competent Civil Court. 9 For the aforementioned reasons, I am of the view that Civil Application No.316/2009 is totally misconceived and it is not appropriate *6* caw.316.09.238.2474.10.wp.732.08.905.sxw remedy for the Applicants and accordingly, it stands disposed of and particularly in the light of the clarifications which have been made above. 10 At this stage, Mr.Kulkarni prays that the order of status-quo that has been made on this Civil Application may be continued for a period of two months so as to enable the Applicants to either challenge this order in the higher Court or to adopt appropriate proceedings. 11 This request is opposed by Mr.Ghosalkar, who invites my attention to Civil Application No.238/2010 and particularly to the reliefs claimed in prayer clauses (a) and (b) therein. He also submits that the Respondent No.1 Bank, which is accused of having colluded with the Hospital or defrauded Dr.Koshy George and other Applicants in Civil Application No.316/2009, has agreed to return the documents and title deeds, therefore, the order of status-quo would prejudicially affect the Applicants in Civil Application No.238/2010. 12 After having heard both sides on this issue and bearing in mind that the remedy of none of the Applicants was not to approach this Court, but go elsewhere, since Dr.Koshy George has made serious allegations which are on affidavits filed before this Court; interest of justice would be served if the order of status-quo is continued for a period of eight weeks from today and if within this period the Applicant No.5 Dr.Koshy George is unable to obtain any interim order/ interlocutory relief in his favour in relation to the properties which are described in Schedule- II in Civil Application No.316/2009 and also forming part of Civil Application No.2474/2010, particularly prayer clause (A) thereof, then, the properties shall be released to the Applicants in Civil Application No. 2474/2010 and such release shall be without prejudice to the rights and contentions of Dr.Koshy George or other parties which may or have already instituted proceedings either before the higher Court or the *7* caw.316.09.238.2474.10.wp.732.08.905.sxw competent Civil Court. 13 Needless to clarify that this Court has not expressed any opinion on the issue of maintainability of the suit or limitation or merits of the controversy, but has only invited attention of all parties to the fact that their plea that the proceedings are their only remedy is not well founded. It is for this limited purpose that the facts have been narrated and above observations have been made. 14 In view of the above discussions, all Civil Application Nos. 316/2009, 238/2010 and 2474/2010 are disposed of. No costs. (S.C. Dharmadhikari, J)