Bombay High Court
Kotak Mahindra Bank vs Shrishti Petroleum And Ors on 7 August, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
926-IAL-34287-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 34287 OF 2022
IN
COMMERCIAL EXECUTION APPLICATION NO. 2165 OF 2018
Kotak Mahindra Bank ... Applicant
V/s.
Shrishti Petroleum and others ... Respondents
WITH
INTERIM APPLICATION (L) NO. 809 OF 2024
IN
INTERIM APPLICATION (L) NO. 34287 OF 2022
WITH
COURT RECEIVER'S REPORT NO. 8 OF 2024
IN
INTERIM APPLICATION (L) NO. 34287 OF 2022
WITH
REVIEW PETITION NO. 1 OF 2024
IN
INTERIM APPLICATION (L) NO. 34287 OF 2022
Ms. Medha Rane alongwith Mr. Prafull Chiipte and Ms. Reshma
Nandilath, Advocates for the Applicant.
Mr. Mathews Nedumpara alongwith Ms. Hemali Merva and Mr. B.S.
Monday instructed by M/s. Nedumpara & Nedumpara, Advocates for
the Respondents.
Mr. N.C. Pawar, OSD, Court Receiver, present.
CORAM : ABHAY AHUJA, J.
DATE : 7 AUGUST, 2024
P.C. :
1. Pursuant to the earlier orders of this Court, today when the
926-IAL-34287-2022.doc
matter is called out, Mr. Nedumpara reiterates his arguments with
respect to the jurisdiction of this Court to entertain the Execution
Application and once again draws attention of this Court to the
decisions of the Hon'ble Supreme Court in the case of Vidya Drolia and
others vs. Durga Trading Corporation, Civil Appeal No.2402 of 2019
alongwith other connected matters, reported in (2021) 2 SCC 1, to
submit that in matters concerning banks and financial institutions, it is
only the Debt Recovery Tribunal that could have jurisdiction and that
such matters are not arbitrable. The learned Counsel also refers to the
decision of the Hon'ble Supreme Court in the case of Kiran Singh and
others vs. Chaman Paswan and others reported in 1954 SCC Online SC
11 as well as A.R. Antulay vs. R.S. Nayak and another, reported in
(1988) 2 SCC 602 to reiterate that it is a fundamental principle that a
decree passed by a Court without jurisdiction is a nullity and that the
invalidity can be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in
collateral proceedings.
2. Mr. Nedumpara submits that therefore this Court has no
jurisdiction and orders passed by this Court need to be recalled and the
Award debtors need to be restored the possession of the property which
is now in the physical possession of the Court Receiver.
926-IAL-34287-2022.doc
3. Ms. Rane appears for the Bank and submits that the issues
had already been raised in the very same Interim Application (L) No.
34287 of 2022 as well as Interim Application (L) No.809 of 2024 and
seeks to draw the attention of this Court to the orders dated 27 th April,
2023, 21st December 2023 and 11th January 2024. The learned Counsel
for the Bank also submits that against the order dated 27 th April 2023,
there is a Review Petition that has been filed by the Award debtors
which is pending. The learned Counsel also draws the attention of this
Court to paragraph 6 of the order dated 11 th January 2024 passed in
the above Applications and submits that unless and until the Review
Petition is heard and decided no further arguments of the Award
debtors be entertained.
4. I have heard the learned Counsel at some length. I am afraid.
I am unable to entertain the submissions of Mr. Nedumpara at this
stage, inasmuch as the said arguments more or less appear to have
been already taken up in these very Applications earlier on as can be
seen from paragraphs 4 and 6 of the order dated 27 th April 2023
against which a review is pending. It is also observed from order dated
11th January 2024 that Mr. Nedumpara's submissions with respect to
the provisions of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 and the Micro,
926-IAL-34287-2022.doc
Small and Medium Enterprises Development Act, 2006 and his reliance
upon the notification dated 9th May 2015 has also been recorded in the
said order. Paragraph 6 of the said order also refers to the issues raised
by Mr. Nedumpara and it has been recorded therein that ultimately the
fate of the proceedings would depend upon the Review Petition.
5. As held above, I am unable to entertain Mr. Nedumpara's
request once again to consider the same arguments raised before the
predecessor benches of this Court in respect whereof it has clearly been
recorded that the fate of the proceedings would depend upon the
review proceedings and that this Court is not sitting either in review of
the said orders nor in appeal.
6. The learned OSD to the Court Receiver, who is present in
Court refers to the Report No.8 of 2024 and submits that after taking
physical possession of the subject Flat No.3002, 30 th Floor, B-Wing,
Metropolis Building, J.P. Road, Four Bungalows, Andheri West, Mumbai
- 400 053, the articles lying in the said flat have been inventoried and
have been kept in one room of the said premises and since the
Judgment debtors have not taken possession of the same, although the
Court Receiver is ready to do so, directions be given as to the next steps
with respect to the said articles. This Court therefore put to Mr.
Nedumpara whether he would advise his clients to receive the said
926-IAL-34287-2022.doc
inventoried articles from the Court Receiver. However, Mr. Nedumpara
has submitted, on instructions, that since the Judgment Debtors are
living in a rented premises and keen to be restored possession of the
said flat premises, it would not be possible to receive the said articles
and the same be kept in the same premises. Accordingly, the Court
Receiver is directed to keep the inventoried articles until further orders
in the same premises as directed vide order dated 5th January 2024.
7. In view of the above, remove the matters from board until the
hearing and disposal of the Review Petition.
8. Liberty to apply.
(ABHAY AHUJA, J.)
