SURESH MALAPPA SHETTY Vs. SPL RECOVERY OFFICER

JUDGEMENT

(1.) HEARD finally by consent of parties at the stage of admission. Perused record and documents. Introduction:

(2.) THE source of this appeal is the order dated 27th November, 2001 passed by the Bombay City Civil Court at Mumbai, dismissing the Notice of Motion moved by the appellant/original plaintiff seeking to restrain the respondents/original defendants by an order of injunction from interfering with the alleged lawful possession of the plaintiff over the suit flat i. e. Flat No. 401, located on the fourth floor of Building No. 5, Neelan Nagar, Mulund (E), Mumbai 400 081 (hereinafter referred to as the "suit flat" ). Facts:

(3.) THE facts leading to the present appeal, in nut shell, are as under: the parties are referred to in their original capacity as they were before the City Civil Court. The defendant No. 3 is the owner of the suit flat. He had mortgaged this flat with defendant No. 2 i. e. Bharat Co-operative Bank (Mumbai) Ltd. ("the bank" for short) by executing necessary loan documents including equitable mortgage dated 6th September, 1995. He failed to repay the amount of loan borrowed from the bank. Consequently, the bank filed suit in a co-operative Court and obtained an order of attachment before judgment on 30th April, 1998 which, ultimately, culminated in the final Award dated 10th February, 2000 with the order of attachment of the property. In the Award, the defendant No. 3 was directed to pay the entire awarded amount in the sum of Rs. 57,31,158/- with simple interest thereon at the rate of 16. 5% per annum from 1st January, 2000 till repayment in full and final to the bank and, in the event of default, the bank was granted liberty to sell the attached property, namely, suit flat and was further permitted to adjust the sale proceeds towards their dues with further direction to refund the balance, if any, to defendant No. 3.