Kotak Mahindra Bank Limited vs M/S. Shyam Enterprises And Anr
2021 Latest Caselaw 15376 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    ORDINARY ORIGINAL CIVIL JURISDICTION

                  INTERIM APPLICATION (L) NO. 16261 OF 2021

                                        IN

                EXECUTION APPLICATION (L) NO. 2135 OF 2011


Kotak Mahindra Bank Limited                            ...      Applicant
         vs.
M/s. Shyam Enterprises And Anr.                        ...     Respondents


Mr. Anand Poojari a/w Ms. Nikita Pawar i/b. S.I. Joshi & Co. for the Applicant.
Mr. Atul Pathak ib. Mr. Pankaj Pandey for Respondent no.1.


                                          CORAM : A. K. MENON, J.

DATED : 26th OCTOBER, 2021.

P.C. :

1. By this interim application the applicant bank seeks a direction to the

Court Receiver to take forcible possession of the Suit flat described in Exhibit

U. The Receiver is stated to have taken symbolic possession pursuant to order

dated 22nd October, 2018 copy of which appears at Exhibit O in the present

interim application. The Court Receiver at that stage was directed to take

symbolic possession and affix his board outside the residential flat.

2. Today Mr. Poojari pointed out that the decree is yet to be satisfied and

despite several promises made the judgment debtor has failed and neglected

32-IAL-16261-2021-EXAL-2135-2011.odt rrpillai to make payment. My attention is invited to order dated 18 th August, 2021 on

which date Mr. Pandey on behalf of the respondent submitted that his client is

willing to pay Rs. 34 lakhs and eight weeks time was granted. Thus time in

fact already granted on 28 th August, 2018 on which date the judgment debtor

had agreed to make payment on or before 19 th October, 2018. That

statement has been taken as an undertaking to the Court which has not been

honoured. However some indulgence was shown on 21 st August, 2021. At

the request of the defendants Advocate time was granted to file appearance

which has since been done.

3. On 21st August, 2021 matter could not be taken up for want of time

and was accordingly listed on 11 th October, 2021. Order of 11 th October,

2021 records that the respondent was not represented. However that appears

to be erroneous since respondent was represented by Mr. Pathak and it was

the applicant bank which was not represented.

4. However today the application is on the basis that even the amount

agreed to be paid in a sum of Rs. 34 lakhs has not been paid. This leaves the

Court with little option to direct the Receiver to take possession of the flat.

Accordingly, on behalf of the respondent Mr. Pathak states on instructions

that the respondent is in negotiations with the bank to settle the claim. This

is denied by Mr. Poojari. In the circumstances there is no reply filed and

there is no effective opposition to the application.

32-IAL-16261-2021-EXAL-2135-2011.odt rrpillai

5. Mr. Poojari states that no settlement has been arrived at till date. In the

circumstances I am of the view that the Receiver should be directed to take

possession of the flat. In view thereof I pass the following order :

(i) The Interim Application is allowed in terms of prayer clause (a) to the

extent that Receiver shall take physical possession of the flat. In the first

instance Receiver shall not take forcible possession but shall call upon the

respondent to hand over possession. Let the Receiver execute this order on

29th October, 2021.

(ii) In the event of any resistance, liberty is granted to the applicant to

apply for police assistance to take forcible possession.

(iii) Interim Application disposed in the above terms.

(A. K. MENON, J.)

Digitally signed by RAJESHWARI RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date:

2021.10.27 17:41:11 +0530

32-IAL-16261-2021-EXAL-2135-2011.odt rrpillai