Hemali Saurabh Shah And Anr vs Capital First Ltd. And 6 Ors
2023 Latest Caselaw 4510 Bom

                                                              22.IA.1464.23 in COMS.377.18.doc



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                         IN ITS COMMERCIAL DIVISION

                       INTERIM APPLICATION NO. 1464 OF 2023
                                        IN
                         COMMERCIAL SUIT NO. 377 OF 2018


Hemali Saurabh Shah & Anr.                    ...         Applicants/Plaintiffs

           Versus

Capital First Ltd. & Ors.                     ...       Defendants

           And

IDFC First Bank Limited                       ...         Respondent



Mr. Anshul Anjarlekar for the Plaintiffs.
Mr. S.U. Kamdar, Senior Advocate, Mr. Aseem Naphade, Ms. Bhagyashree
Lembhe, Mr. Vidhur Malhotra i/b Naik Naik & Co. for the Respondent.


                                   CORAM :     R.I. CHAGLA, J.
                                   DATED :     2nd MAY, 2023.
ORDER :

1 Interim Application has been moved with an attempt to make

out a case of urgency on the ground that the IDFC First Bank Limited is

taking steps under the RDB Act for sale of the subject premises in

execution of the decree passed by the DRT.

Waghmare                                                                                  1/4




                                                           22.IA.1464.23 in COMS.377.18.doc



2           The learned Counsel for the Applicants/Plaintiffs has relied

upon an opinion of Assistant Examiner of Documents, dated 28.01.2019 in

order to contend that as per the opinion, the signatures marked on the

mortgage deed and old documents, are not that of the

Applicants/Plaintiffs. He has submitted that the concerned Bank ought to

stay its hands and not proceed with the sale of subject premises till the

issue is determined with regard to the Applicants/Plaintiffs not having

signed the aforementioned documents.

3 This Court has granted ample opportunities to the Applicants/

Plaintiffs for making deposit of the outstanding dues of the concerned bank

and this can be seen from order dated 14.02.2018 by which the

Applicants/Plaintiffs was directed to make deposit of an amount of Rs.12

crores to satisfy the decreetal debt and that submissions would not be

heard until that deposit was made. It was further recorded that the

award/decree was final. This Court by prior order dated 29.01.2018 had

considered the Valuation Report of the subject premises and had

considered that the Judgment Debtors are not willing to deposit a single

rupee as security for satisfaction of the decretal amount which is in excess

of Rs.12 crores and for which interest continues to run and accordingly

had not found it fit to stay the auction sale of the subject premises which

was directed to proceed by the Sheriff of Mumbai.

Waghmare                                                                              2/4




                                                              22.IA.1464.23 in COMS.377.18.doc



4                 The Applicants/Plaintiffs had carried the matter before the

Supreme Court and by order dated 04.12.2017, the Supreme Court had

issued notice subject to deposit of 50% of the amount ordered by this

Court i.e. Rs.6 crore within a period of six weeks from the date of the said

order, failing which the notice will stand discharged. Thereafter, by order

dated 04.12.2017, the Supreme Court had recorded that as deposit was

not made as per the said order, the Special Leave Petition stands dismissed.

5 It is necessary to note that by an order of the DRT which was

pronounced on 10.02.2023 and signed on 27.03.2023, the DRT has held

that the Applicants/Plaintiffs herein cannot take benefit of the opinion of

Hand Writing Expert on the execution of loan documents. Accordingly, the

application for stay of recovery proceedings has been rejected by the said

order.

6 Having considered the prior orders passed by this Court as

well as orders of the Supreme Court referred to above and the order of the

DRT dated 27.03.2023, no case is made out for grant of ad-interim relief

restraining Defendant No.1 from taking steps with regard to sale notice

dated 17.09.2022 and auction sale scheduled in pursuance thereof.

Accordingly, ad-interim relief sought for is rejected.

Waghmare                                                                                 3/4




                                                       22.IA.1464.23 in COMS.377.18.doc



7           Insofar as prayer clause (c) is concerned, which is for

amendment to the Suit as per schedule-I, the prayer is granted.                The

Applicants/Plaintiffs are permitted to amend the cause title of the Suit in

accordance with Schedule-I of the Interim Application.

8 Amendment shall be carried out on or before 06.06.2023.

9           Re-verification is dispensed with.




                                                         (R.I. CHAGLA, J.)




Waghmare                                                                          4/4