CHARU KISHOR MEHTA Vs. PRAKASH PATEL

JUDGEMENT

(1.) The present SLP challenges the order dtd. 13/6/2022 passed by the High Court of Judicature at Bombay in First Appeal No. 531/2022, dismissing the Appeal with a cost of Rs.5.00 lakhs. The petitioner is the appellant before the Bombay High Court and filed a suit before the Trial Court in which the defendant had moved application under Order VII, Rule 11 of the Code of Civil Procedure, 1973 for rejection of the plaint. The application was allowed and the suit was dismissed by Order dtd. 25/5/2022 by the Trial Court. This was the order challenged in the first appeal, a reference of which has already been made above.

(2.) All the same, before we come down to the order passed in the first appeal, we must narrate the facts of the case which have a crucial bearing on the case. The petitioner had availed credit facility from the Oriental Bank of Commerce, Mumbai and had outstanding dues running approximately to the tune of Rs.277,00,00,000.00. The Bank ultimately moved an application before Debts Recovery Tribunal ('DRT' for short) for recovery of its dues from the present petitioner and others. This original application was allowed by the DRT, Mumbai on 24/7/2006 and consequently recovery certificate was issued and the borrowers and guarantors were directed to repay the outstanding dues. The order dtd. 24/7/2006 was challenged before the Debts Recovery Appellate Tribunal ('DRAT' for short) and so were several other orders and measures which were subsequently taken by the Bank for the recovery of the amount under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short). On 30/9/2013, the Bank had assigned the debts concerning the present dispute as well as the underlying securities in favour of M/s. Phoenix A.R.C. Pvt. Ltd., which we will now refer to as the secured creditor. Thereafter, a settlement took place between the present petitioner i.e., the plaintiff and the appellant before the court below and M/s. Phoenix A.R.C. Pvt. Ltd. and a settlement deed was signed between the parties on 1/10/2013. The present petitioner was a signatory to the said settlement wherein the petitioner undertook to repay M/s. Phoenix A.R.C. Pvt. Ltd. a sum of Rs.27,31,04,000.00 on or before 30/9/2014. The petitioner also agreed to handover the possession of the secured asset being Flat No. 37 on the 18th Floor of the building known as "Usha Kiran" along with the Garage no. 17 and open parking space which shall now be referred to as "the Suit Premises" to M/s. Phoenix A.R.C. Pvt. Ltd. The petitioner also gave an undertaking not to obstruct execution in case of the recovery certificate which may be issued in case of default of consent terms.

(3.) All the same, the petitioner failed to repay the amount or even handover the possession of the secured asset to M/s. Phoenix A.R.C. Pvt. Ltd. Not only this, in clear breach of the consent terms and the settlement dtd. 1/10/2013, attempts were being made by the petitioner in obstructing the execution of the recovery certificate by filing numerous proceedings before the authorities under the SARFAESI Act as well as before the Bombay High Court and the Supreme Court of India.