ORAL JUDGMENT

1 This First Appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C.') is at the instance of the original plaintiff and is directed against the judgment and decree dated 4th February 2013 passed by the City Civil Judge, Court No.10, City Civil Court, Ahmedabad, below Exhibit : 72 in Civil Suit (CCC) No.6263 of 1993.

2 The appellant herein is the 'original plaintiff'. The respondents herein are the 'original defendants'. The plaintiff instituted the Civil Suit No.6263 of 1993 and prayed for the following reliefs:

“a) The Hon. Court be pleased to declare that the recovery certificate No.AS/N/Lavad-01/G-4-209 dated 13-4-1993 issued by the Registrar, Board of Nominees is null and void and not binding to the plaintiff bank.

b) The Hon. Court be please to issue permanent order of injunction restraining the Special Recovery Officer, Abhyuday Co-operative Bank Limited (defendant No.1 herein) and the said Abhyuday Co-operative Bank Limited (defendant No.2 herein), their agents, servants, officers and authorised persons from conducting the auction with respect to the property bearing Sub plot No.23 of Final Plot No.586 + 586/2/1 of Ellisbridge Town Planning Scheme No.3 (varied) of the limits of village Chhadavad, Taluka City, District and Sub-District Ahmedabad as per advertisement in Sandesh dated 18-11-1993 or in any other manner whatsoever.

c) The Hon. Court be pleased to issue permanent order of injunction restraining the defendants No.1 and 2 from obtaining possession of or in dealing with any other manner whatsoever with respect to the said property.

d) Interim orders in terms of prayers (b) & (c) above be granted.

e) Any other relief that may be deemed just and proper be granted. f) Cost of the suit be awarded to the plaintiff from the defendants.”

3 The plaintiff instituted the Civil Suit No.6263 of 1993 against the defendants for the purpose of seeking a declaration that the recovery certificate issued by the Registrar, Board of Nominees is null and void and not binding to the plaintiff Bank. As this First Appeal arises from an order passed by the Trial Court rejecting the plaint under the provisions of Order VII Rule 11(d) of the C.P.C., it is necessary to reproduce the entire plaint along with the reliefs prayed therein:

“Suit valued at Rs.300/-

The plaintiff begs to submit as under:-

1 The plaintiff is a bank incorporated under Banking companies (Acquisition and Transfer of Undertaking) Act, 1970, having its Head Office at Express Towers, Nariman Point, Bombay and having inter alia its Ellisbridge Branch at Ellisbridge, Ahmedabad.

2 The defendant NO.1 is the Special Recovery Officer of the defendant No.2 bank which is a cooperative bank registered and established under Gujarat Cooperative Societies Act.

3 Shri Kaushikbhai T. Patel and Smt. Shrutiben Kaushikbhai Patel were carrying on the business of construction of building and development of land building. They were at all material times directors guarantors of three companies, viz. M/s. Brown Construction Private Limited, M/s. Brown Builders Private Limited and M/s. Brown Engineers Private Limited (hereinafter referred to as “the said companies”).

4 At the request of said Shri K.T. Patel and Smt. Shrutiben K. Patel, the plaintiff granted various facilities to the said companies as under:

(a) M/s. Brown Construction Pvt Ltd Cash Credit Rs.5 lacs Demand Loadn A/c. I. Rs.10 lacs Demand Loan A/c. II Rs.18 lacs (b) M/s. Brown Builders Pvt. Ltd Cash Credit Rs.5 lacs Demand Loadn A/c. I. Rs.10 lacs Demand Loan A/c. II Rs.18 lacs (c) M/s. Brown Engineers.

Demand Loan A/c. II Rs.18 lacs Said Shri Kausdhik T. Patel and Smt. Shrutiben K. Patel had stood as guarantors for the above referred to facilities granted by the plaintiff to the said companies for due discharge of the liabilities and repayment by the aforesaid companies to the plaintiff bank. In consideration of the plaintiff bank having made and granted the aforesaid facilities to the said companies