Bombay High Court
Hero Housing Finance Limited ... vs Rehana Zoeb Bootwala And Ors on 20 December, 2023
Author: Amit Borkar
Bench: Amit Borkar
9-cra-742-2023.doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.742 OF 2023
Hero Housing Finance Limited
Through Authorized Signatory Pawan
Gangaram Khatate ... Applicant
V/s.
Rehana Zoeb Bootwala & Ors ... Respondents
Mr. Abhijeet Desai a/w Smt. Daksha M. Punghera, for
Applicant.
Mr. Archit Jayakar and Mr. Declan Fernandez a/w. Mr.
Mihir K. i/by Jayakar & Partners.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 20, 2023
P.C.:
1. Arguable questions are raised.
2. Rule.
3. According to plaintiff, defendant No.5 impersonated plaintiff
and executed agreement of sale in favour of defendant No.4.
Defendant No.4 had not title to mortgage the property to secure
creditor/defendant No.1. Therefore, according to the plaintiff, the
suit against the secured creditor falls within the parameters laid
down by the Apex Court in the case of Mardia Chemicals Ltd. Vs.
Union of India reported in (2004) 4 SCC 311. The allegations of
9-cra-742-2023.doc
fraud, according to the plaintiff, which to the effect of secured
creditor has not made inquiry regarding title and no 'due diligence'
was exercised before getting suit property as mortgaged. The
mortgage was after three days of the agreement to sell.
4. In view of the judgment of Apex Court in the case of
Electrosteel Castings Limited Vs. UV ASSET Reconstruction
Company Limited and Ors. reported in (2022) 2 SCC 573 has laid
down in paragraph 8 of the judgment that the parameters for
pleading of fraud as under:
"8. In Bishundeo Narain [Bishundeo Narain v. Seogeni Rai,
1951 SCC 447 : 1951 SCR 548] in para 22, it is observed and
held as under : (SCC p. 454)
"22. ... Now if there is one rule which is better established
than any other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth full
particulars and the case can only be decided on the
particulars as laid. There can be no departure from them in
evidence. General allegations are insufficient even to amount
to an averment of fraud of which any court ought to take
notice however strong the language in which they are
couched may be, and the same applies to undue influence
and coercion. See Order 6 Rule 4, Civil Procedure Code."
This extract is taken from Electrosteel Castings Ltd. v. UV
Asset Reconstruction Co. Ltd., (2022) 2 SCC 573 : 2021 SCC
OnLine SC 1132 at page 581
9. Having considered the pleadings and averments in the suit
more particularly the use of word "fraud" even considering
the case on behalf of the plaintiff, we find that the
allegations of "fraud" are made without any particulars and
only with a view to get out of the bar under Section 34 of the
SARFAESI Act and by such a clever drafting the plaintiff
intends to bring the suit maintainable despite the bar under
9-cra-742-2023.doc
Section 34 of the SARFAESI Act, which is not permissible at all
and which cannot be approved. Even otherwise it is required
to be noted that it is the case on behalf of the plaintiff-
appellant herein that in view of the approved resolution plan
under IBC and thereafter the original corporate debtor being
discharged there shall not be any debt so far as the plaintiff-
appellant herein is concerned and therefore the assignment
deed can be said to be "fraudulent".
5. Prima facie pleadings in the plaint do not constitute
ingredients of fraud by secured creditor as laid down in
Electrosteel (Supra). Therefore, applicant has made out a case for
grant of ad-interim relief in terms of prayer clause (c).
6. Rule is made returnable on 12 February 2023 at 2:30 p.m.
(AMIT BORKAR, J.)
