IMPORTANT POINT
Appeal under Section 13(1A) of Act of 2015 would lie only against Judgment and Orders which are enumerated or enlisted under Order XLIII of CPC.

JUDGMENT

Devendra Kumar Upadhyaya, J.—For the sake of clarity, the Plaintiff and the Defendants in the suit shall be referred to as per their original nomenclature i.e. Appellants herein as the Defendants and the Respondent herein as the Plaintiff.

2. Heard Mr. O. A. Das, learned Counsel representing the Defendants and Mr. Kishor P. Vig learned Counsel representing the Plaintiff.

3. This Appeal filed under Section 13(1A) of the Commercial Courts Act, 2015 (hereinafter referred to as the Act of 2015) seeks to challenge the order dated 2nd December 2020 passed by the District Judge – 2, Thane whereby the application moved by the Appellants – Defendants under Order VII Rule 10 and Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”) read with Section 19(6) to (10) of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as the “Recovery Act, 1993) has been rejected.

4. The facts of the case which can be culled out from the pleadings available on record and the submissions made by the learned counsel for the respective parties are that the Plaintiff – Respondents instituted Commercial Suit No.6 of 2019 against the Appellants-Defendants for recovery of loss and damages and compensation of Rs.100 Crores + Rs.10,10,733/- together with interest on the said amount @ 13.95% p.a. from the date of institution of the suit till final realization.

5. The said suit has been filed with the plaint allegations, inter alia, that the plaintiff is a partnership firm engaged in the business of builders and contractors since 1987 and that the Defendants fraudulently invoked the measures under the guise of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) to grab the property of the partner of the Plaintiff.

6. It has been submitted on behalf of the Appellants that Defendant No.1 sanctioned and granted cash credit limit of Rs.10 Crores and further credit facility to the Plaintiff for their working capital requirement and that the credit facilities were sanctioned and granted vide sanction letter dated 24th January 2013 and Modified Sanctioned letter dated 28th January 2013. Further submission on behalf of the Defendants is that in order to secure the credit facility, the Plaintiff executed certain security documents such as Demand Promissory Note for Rs.10 Crores dated 5th February 2013 in respect of the Cash Credit Facility, Bearer Letter for Rs.10 Crores dated 5th February 2013 in respect of the Cash Credit Facility, Hypothecation-cum-Loan Agreement for Rs. 15 Crores dated 15th February 2013 and a Composite Agreement dated 5th February 2013. The Defendants further state that on the request of the Plaintiff, the Defendants issued Bank Guarantee dated 27th February 2013 for a sum of Rs.9,67,000/- which was valid till 26th February 2014. It is also stated that the Defendant No.1 sanctioned and granted additional cash credit/temporary Over Draft limit of Rs. 1 Crore to the Plaintiff for their working capital requirement as per the terms and conditions stipulated in the Memorandum of Sanction dated 12th October 2013. It is also the claim of the Defendants that as security towards the additional cash credit limit of Rs.1 Crores, the Plaintiffs executed loan/security documents on 14th October 2013 and further that equitable mortgage was also extended in respect of certain immovable properties.

7. Further submission of the Defendants is that the Plaintiff committed default in repayment and accordingly, the account was declared as Non Performing Assets (NPA) on 27th July 2014 and accordingly action under the SARFAESI Act was initiated by issuing Demand Notice under section 13(2) of the SARFAESI Act. It is further asserted on behalf of the Defendants that since the outstanding dues were not paid by the Plaintiff even after receipt of the notice under Section 13(2), symbolic possession of the mortgage propert