KOTAK MAHINDRA BANK LTD Vs. BALARAM CEMENTS LIMITED

JUDGEMENT

(1.) THE present Civil Application has been filed for vacating the inter order dated 10.08.2009 passed in Civil Application No.395/2009.

(2.) THE facts of the case briefly stated are that the the plaintiff filed Suit for declaration that he has not taken any loan or advances or hypothecated any property to the defendant and yet the defendant has served the notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the Securitisation Act") on the ground that the debt of the plaintiff to the ICICI Bank has been assigned in favour of the respondent bank by executing the deed of assignment under the Securitisation Act and, therefore, they have no right to take every action for the recovery of the outstanding dues. THE defendant filed an application, Exh.21 under Order VII, Rule 11(d) of the Civil Procedure Code, 1908 for the rejection of the plaint, which came to be allowed by passing order. THErefore, the plaintiff filed Regular Civil Appeal, which has been dismissed and, therefore, the present Second Appeal has been filed by the original plaintiff raising substantial questions of law posed therein with regard to the interpretation of the Securitisation Act, which came to be admitted. Along with the Second Appeal, Civil Application for stay also came to be filed, wherein the order came to be passed on 10.08.2009 and stay was granted.

(3.) LEARNED counsel, Mr.Pahwa, therefore, submitted that whatever the contention the respondent may seek could be raised before the same Forum i.e. Debts Recovery Tribunal, which will decide in accordance with law but the Suit itself would be barred and, therefore, Second Appeal itself would not have been maintainable but for the aforesaid circumstances. However, he submitted that in any case, the circumstance has been changed in view of the judgment of the Hon'ble Apex Court reported in JT 2010 (10) SC 599 and, hence, the interim order requires to be vacated, otherwise, the appellant may not be applied to pursue the remedy for the recovery though it is otherwise under the law like Securitization Act. Therefore, it was submitted that the present application may be allowed.