1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4276 OF 2008 IN SUIT NO. 2948 OF 2004 Triveni Co-op. Hsg. Society Ltd. ....Plaintiff Versus M/s. Parthasarathi Properties Pvt. Ltd. & Ors. ....Defendants None for the Plaintiff. Ms. Gauri Godse, Advocate for Defendant No.8. CORAM : R. V. MORE, J. DATE : 22ND FEBRUARY, 2010. P.C. : Heard Miss Godse, learned Counsel for Defendant No.8. None appears for the Plaintiff, though served and affidavit of service to that effect is already filed. 2. The notice of motion is taken out by the Defendant No.8 for striking out its name from the above suit. Miss Godse, learned Counsel, submitted that Defendant Nos. 6 & 7 in their capacity as Directors of Defendant No.1-Company availed loan from Defendant No.8 to the extent of Rs. 1 Crore by mortgaging Flat No.B-405 situated in the Plaintiff’s society by Registered Mortgage Deed dated 16th July, 2004. It is further submitted that Defendant Nos. 6 & 7 have 2 made repayment of the above loan of Rs. 1 Crore. The Defendant No.8 thereafter issued No Debts Certificate to Defendant Nos. 6 & 7 and consequentially released the above property from mortgage. Her submission is that in view of the above circumstances, Defendant No.8 is now not a necessary party to the suit and its name may be striked out. 3. The prayer clause (c) of the suit is about the suit flat which was mortgaged by the Defendant Nos. 6 & 7 as Directors of Defendant No.1- Company to Defendant No.8-Bank. Prayer Clause (c) of the suit runs as follows:- “that this Hon’ble Court be pleased to declare that the purported mortgage of Flat No.B-405 is illegal, null and void ab-initio.” Except above, there is no other relief claimed against the Defendant No.8. In these circumstances and in view of the facts stated above that the Defendant Nos. 6 & 7 have repaid the loan of Defendant No.8 and Defendant No.8 consequentially released the said flat from mortgage, the suit as against Defendant No.8 will not survive. The Plaintiff has also not denied the averments made in affidavit in support. The notice of motion is accordingly allowed in terms of prayer clause (a). 4. The Plaintiff shall carry out necessary amendments within a period of four weeks from today. 3 5. The Defendant No.8 shall communicate this order to the Plaintiff within a period of two weeks from today. Sd/- (R. V. MORE, J.)