VIJAYA BANK Vs. MONA GEMS

JUDGEMENT

(1.) BY this motion, plaintiff bank is praying for appointment of Receiver, injunction and delivery of share certificate No.39 to plaintiffs in respect of flat No.B-47, Sunil Niwas Co-operative Housing Society Limited. Suit is filed for recovery of sum approximately of Rs.8 lakhs against defendant Nos. 1, 2, 3 and 4. Defendant No.1 is principal borrower, defendant Nos. 2, 3 and 4 are guarantors, defendant Nos. 5 and 6 are purchasers of flat, while defendant No.7 is co-operative society.

(2.) IT is true that documents on record indicate that suit flat is mortgaged with plaintiff bank by deposit of title deeds. However, in affidavit in support, plaintiffs have made statement that by agreement dated 28.1.1991, defendant Nos. 3 and 4 have transferred the suit flat in favour of plaintiff Nos. 5 and 6. The affidavit is not disclosing the date on which plaintiff bank come to know about this fact. Even-though, the suit was filed in month of January 1993, present motion is taken out in August 1995. In view of alienation taking place in favour of defendant Nos. 5 and 6, this is not a fit case for appointment of Court Receiver or direction to defendant No.7 to handover the share certificate. However, defendants will have to be restrained by order of injunction from alienating or transferring the suit flat. Suit flat appears to be the only security for repayment of loan. In these circumstances, in my judgment, this is a fit case only to grant relief of injunction. Defendant Nos. 3, 4, 5 and 6 are hereby restrained by order of injunction of this Court from transferring alienating, creating third party interest and/or parting with the possession of suit flat being flat No.B-47, Sunil Niwas Co-operative Housing Society Limited, Plot No.89/90, Jaiprakash Road, Near Four Bungalows, Versova, Andheri (W), Bombay 400 058. Defendant No.7 is also restrained by order of injunction from transferring share certificate No.39 in respect of suit flat in favour of defendant Nos. 5 and 6 or any other person.