Bombay High Court High Court

Ravindra Vithal Prabhu vs Umesh Martappa Prabhu on 4 July, 2008

Bombay High Court
Ravindra Vithal Prabhu vs Umesh Martappa Prabhu on 4 July, 2008
Bench: V.M. Kanade
                                       1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       CIVIL APPELLATE JURISDICTION




                                                                        
                  ARBITRATION APPEAL NO. 16  OF 2008




                                                
    1.  Ravindra Vithal Prabhu        )
    Adult, Occ: Business r/o          )




                                               
    Hotel Yatri Niwas, Tararani,      )
    Chowk, Kolhapur                        )
                                       )
    2.  Smt. Laxmibai Ramchandra Pai)




                                      
    Adult, Occ: Business, R/o at Hotel )
    Yatri Niwas, Tararani Chowk,
                          ig           )
    Kolhapur.                          )   ..... Appellants.

               V/s
                        
    1.  Umesh Martappa Prabhu         )
    Adult, Occu: Business             )
    R/o. House No.249/A E-Ward        )
       


    Rajlaxmi, Nagala Park,                 )
    



    Kolhapur.                         )
                                      )
    2.  Deepak Rajaapa Prabhu         )
    Adult, Occu: Business,            )





    Flat No.6, Plot No.10, Kusumanjali)
    Apartment, Datta Vidya Colony, )
    Near Lisha Hotel, Kolhapur        )
                                      )
    3.  Annasaheb Sambhaji Patil      )





    Adult, Occu: Business,            )
    R/at Babubhai Parikh Bridge,      )
    E-Ward, Kolhapur.                 )
                                      )
    4.  Kolhapur Janta Sahakari       )
    Bank Ltd. a co-operative bank     )
    having office at 511, C/2, "E" Ward)
    Station Road, Kolhapur through )
    its Authorized Officer.           )   Respondents.



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    Mr. Bhandari i/b  Mrs Pranjal Bhandari for the appellants.

    Mr. Ramchandra Yadav for respondent No.1.




                                                                              
    Mr. R.S. Ghadge i/b  Mr. A.S. Desai for respondent No.4.




                                                      
    ------

                             CORAM:   V.M.KANADE, J.




                                                     
                             DATE   :    4TH JULY, 2008.  

    JUDGMENT: 

1. Heard the learned Counsel for the appellants and the learned

Counsel for the respondents.

2. The appellants are challenging the judgment and order passed

by the District Judge, Kolhapur who, by his judgment and order dated

15/3/2008 was pleased to allow the application filed by the Kolhapur

Janta Sahakari Bank Ltd. below Exhibit 78 for rejecting the

application filed by the appellants below Exhibit-70 and dismiss the

application filed by the appellants herein below Exhibit-70 for

temporary injunction restraining the Bank from taking any steps in

pursuance of its notice dated 18/03/2005.

3. Brief facts in a nutshell are as under:-

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4. The appellants and respondent Nos.1 to 3 were partners in the

partnership firm in the name and style of M/s Ayodhya Hotel. They

were also carrying on business of giving on rent multi-purpose hall in

the name of Akshata Mangal Karyalaya and a hotel in the name of

Yatri Niwas by virtue of partnership deed dated 27/3/1989. There

was a dispute between the partners over the management of the

partnership firm. It is the case of the appellants that respondent No.1

obtained loan from Kolhapur Janta Sahakari Bank Ltd. on the basis of

forged and fabricated documents. Accordingly, police complaints

were also filed by the appellants herein against respondent No.1.

5. Kolhapur Janta Sahakari Bank Ltd., Kolhapur filed a dispute

against M/s Ayodhya Hotel & its partners for recovery of

an amount of Rs 1,74,95,872/- The appellants also filed a civil suit

No.144 of 2004 before the Civil Judge, Senior Division, Kolhapur,

seeking various reliefs. Since there was an arbitration clause in

partnership deed dated 27/03/1989, a Petition was filed by the

appellants under section 9 of the Arbitration & Conciliation Act, 1996.

An Arbitration Petition under section 11 of the Arbitration &

Conciliation Act, 1996 was also filed and the High Court appointed

Mrs Urmila Joshi as a sole proprietor. An order was passed on

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20/12/2004 appointing appellant No.1 as a Receiver and a direction

was given to him to take possession of the business from from the

Executive Magistrate, Karveer with further direction to pay Rs

1,50,000/- per month. In the meantime, the respondent – Bank issued

notice under section 13 of the SARFAESI Act dated 18/03/2005.

The appellant gave their reply to the said notice dated 11/06/2005.

In the meantime, the Bank made an application, seeking delivery of

possession of the suit property and deposits which were made in the

Court in favour of the Bank. The appellants therefore filed an

application for amendment of the Petition which was filed under

section 9, vide Exhibit-70 on 18/07/2005. Another application for

temporary injunction was also filed, seeking relief against the bank.

The Bank also filed an application for rejection of the appellants’

application for adding them as party-respondent. The Bank gave an

undertaking that it would only take symbolic possession and,

accordingly, symbolic possession was taken by the Bank on

20/07/2005. The appellants further filed an application at Exhibit-87

to quash the Bank’
s notice dated 20/07/2005 and further application

at Exhibit-132 was filed for restraining the Bank from taking further

steps and another application at Exhibit-187 was filed for a

declaration that the notices issued by the Bank were illegal. In the

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meantime, the appellants also filed a suit against the Bank for

injunction vide Regular Civil Suit No.165 of 2008.

6. By the impugned judgment and order, the District Court was

pleased to reject the application filed by the appellants at Exhibit-70

and allow the application of the Bank at Exhibit-78. The applications

filed by the appellants at Exhibits 71, 132, 187 and 224 were rejected.

The other applications were also disposed of.

7. Mr. Bhandari, the learned Counsel appearing on behalf of the

appellants submitted that District District Court had erred in rejecting

the application filed by the appellants. He submitted that the

respondent had obtained loan from the Bank on the basis of forged

and fabricated documents and if the Bank was permitted to proceed

with the proceedings under the SARFAESI Act, the arbitration

proceedings would be rendered infuctuous. He submitted that it was

always open for any party to the arbitration proceedings to seek

appropriate orders from the Court under section 9 of the said Act for

the purpose of securing/preserving any property which was a subject

matter of the dispute in arbitration. He submitted that since

partnership assets were specifically the subject matter of the

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arbitration and if the Bank was not restrained from proceeding with

the proceedings which were initiated by them under SARFAESI Act,

the proceedings would become infrucutous.

8. The learned Counsel appearing on behalf of the appellants

relied upon two judgments of this Court in the case of Percept D’

Mark (India) Pvt. Limited Vs. Zaheer Khan reported in 2004

(2) BCR 47 and in the case of Global Aviation Services Pvt.

Ltd. Vs. Malaysian Airline System Berhad reported in 2007

(5) BCR 121.

9. It is not possible to accept the submissions made by the learned

Counsel appearing on behalf of the appellants. In the present case,

the Bank has instituted proceedings under the SARFAESI Act. There

is a specific provision in section 35 of the said Act which lays down

that the provisions of the Act would have overriding effect over other

laws. The validity of the said provision has been upheld by the Apex

Court in Maradia Chemical’
s case reported in AIR 2004 S.C. 2371. It

is the case of the Bank that the partners of the firm had taken loan

from the Bank and had committed default in repayment of the loan

and, therefore, recovery proceedings were initiated under the

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SARFAESI Act. On the other hand, it is the case of the appellants that

the respondent Nos. 1 to 3 had obtained loan on forged or fabricated

documents and, therefore, they are not liable to pay the said amount

to the Bank and, secondly, the property of the partnership firm also

could not be sold for the purpose of repayment of the said loan

amount.

10. In my view, it is open for the appellants to oppose the

application and proceedings which are initiated by the Bank under the

SARFAESI Act and seek discharge of their personal liability as also the

liability of the firm to repay the said bank loan. The subject matter of

the arbitration proceedings, essentially, is the statement of accounts

between the partners, whereas the subject matter of the proceedings

which are initiated by the Bank are in respect of recovery of loan

which was taken by the partnership firm from the Bank. These

proceedings being distinct and separate, the subject matter of both

these proceedings, therefore, is different and, therefore, the learned

District Judge was justified in rejecting the application filed by the

appellants for impleading the Bank as party in section 9 Petition and

also other applications which were taken out by the appellants herein.

The learned Counsel appearing on behalf of the appellants has relied

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upon two judgments of this court in the case of Percept D. Mark

(India) Private Limited (supra) and in the case of Global Aviation

Services Pvt. Ltd. (supra). Perusal of the facts in the said cases

clearly discloses that the ratio of the said judgments will not apply to

the facts of the present case.

11. Hence, there is no merit in the submissions made by the learned

Counsel appearing on behalf of the appellants. Appeal is accordingly

dismissed. Under the circumstances, there shall be no order as to

costs.

(V.M. KANADE, J)

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