IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.07.2023 CORAM:

THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN C.R.P.No.1551 of 2021

1. M/s. Kotak Mahindra Bank Limited rep. By the Authorised Officer, 7^th floor, Plot No.7, Sector 125, Near Dell Complex, Noida – 201 313 2. M/s Kotak Mahindra Bank Limited, rep. By its Authorised Officer, No.185, 2^nd Floor, Annasalai, Mount Road, Chennai – 600 006 ... Petitioners Vs.

1. T.K.Karthikeyan

2. Shanthi Karthikeyan

3. Future Capital Finance Service Limited rep. By its State Risk Head having registered office at FCH House, Peninsula Corporate Park, Ganpatrao Kadam Marg, Lower Parle, Mumbai – 400 013

4. Authorised Officer, Capital First Limited, Unit No.401-407, 4th Floor, A Wing Technopolis Knowledge Park, Chakala Road, Opp. Holy Family School, Andheri, Mumbai – 400 093 ... Respondents Civil Revision Petition filed under Article 227 Constitution of India to set aside the petition and order passed in I.A.No.4 of 2021 in O.S.No.78 of 2021 dated 12.03.2021 and to terminate the O.S.No.78 of 2021 on the file of learned Principal Judge, Tiruvallur.

For Petitioner : Mr. V.Balasubramani For Respondents : Mr.B.Jeyash B.Dolia Sr.Counsel for Mr.K.Pattabhi

O R D E R

The present Civil Revision Petition is filed as against the order dated

12-3 2021 made in I.A No 4 of 2021 in O.S. No 78 of 2021 and to terminate the O.S. No. 78 of 2021 on the file of the Principal Judge. Thiruvallur.

2. The brief facts of the case are as follows:-

(i) The 1^st and 2^nd Respondents had obtained loan from M/s Capital First Limited, formerly known as Future Capital Holding Limited/ 3^rd and 4^th respondents for a sum of Rs.89,82,000/- (Rupees Eighty Nine Lakhs and Eighty Two Thousand only) upon terms and conditions mentioned in the agreement dated 23.12.2010.

(ii) As per the said agreement, the said loan facility was repayable by the respondents 1 and 2 in 180 equated monthly installments to the tune of Rs. 1,16,615/-(Rupees One Lakh Sixteen Thousand Six Hundred and Fifteen only). The respondents 1 and 2 started to commit default in repayment of amount.

(iii) Pursuant to the default in making the repayment of amount, Capital First Limited has invoked the Arbitration proceedings and an award was passed on 29.01.2015 directing the respondents 1 and 2 to pay a sum of Rs.93,35,927.62/- together with interest at the rate of 15.25% per annum from 09.10.2014. Despite the receipt of award, the respondents 1 and 2 have not paid the amount. Consequently, their loan account was classified as Non Performing Assets (NPA) by Capital First Limited on 31.01.2016. The said Capital First Limited, vide Deed of Assignment dated 08.07.2016 inter alia sold, transferred, assigned in favour of the petitioners.

(iv) Thereafter the petitioners issued notice to the respondents 1 and

2 on 06.02.2017 under Section 13 (2) of the SARFAESI ACT 2002 and called upon them to pay an amount of Rs.1,18,34,766/- (Rupees One Crore Eighteen Lakhs Thirty Four Thousand Seven Hundred and Sixty Six only) as on 06.02.2017 with interest at 15.25% per annum from 07.02.2017 until payment in full within 60 days from the date of receipt of said notice. Since the said amount was not paid within the stipulated period, the petitioners had taken symbolic possession of the property in excise of power conferred on them under Section 13 (4) of SARFAESI ACT read with Rules 8 and 9 on 24.04.2017 and issued a Sale Notice dated 19.02.2021.

(v) Consequent to the same, the respondents 1 and 2 filed a suit in O.S.No.78 of 2021 before the District Court, Thiruvallur and ad-interim exparte injunction was granted against the petitioners till 31.03.2021 in I.A.No.4 of 2021 filed by them. The petitioners has filed the present petition to set aside the order of the trial court and also to strike off the plaint.

3. The learned counsel for the petitioners submits that the order passed by the Court below dated 12.03.2021 in I.A.No.4 of 2021 is bad in law and the same is liable to be quashed and set aside in vie