IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO. OF 2005.

Bank of Baroda, )

A Body Corporate constituted under the )

Banking Companies (Acquisition and Transfer )

Of Undertakings ) Act, 1970 having its Head )

Office at Mandvi, Baroda and its Charkop )

Branch at Jayadev House, Plot No. 93/A, Govt. )

Industrial Estate, Sahyadri Nagar, Charkop, )

Kandivli (West), Mumbai - 400 067. ) … Plaintiff.

Versus

1. Shivkumar Lalchand Maheshwari )

of Mumbai Indian Inhabitant residing at )

505, Shantinath Tower, 5th Floor, Building No. 45, )

Shanti Park, Mira Road (East), Dist. Thane. )

2. Prasanta K. Mohapatra , )

of Mumbai Indian Inhabitant residing at )

601/ A Classic , Mira Bhayandar Road, )

Mira Road (East), Dist. Thane. ) …. Defendants.

THE PLAINTIFF ABOVENAMED STATES AS UNDER :

 2

1. The Plaintiff is a Body Corporate constituted under the Banking

Companies (Acquisition and Transfer of Undertakings ) Act, 1970 having its

Head Office at Mandvi, Baroda and its Branch Office amongst others at

Jayadev House, Plot No. 93/A, Govt. Industrial Estate, Sahyadri Nagar,

Charkop, Kandivli (West), Mumbai - 400 067. The Plaintiff inter-alia

carries on business as Bankers.

2. Defendant No. 1 is one of the constituents of the Plaintiff and is

sued herein as the principal borrower having enjoyed a Term Loan with the

Plaintiff as more particularly set out hereinbelow. Defendant No.2 is sued

herein as the guarantor having guaranteed to the Plaintiff the due

repayment of the amounts outstanding under the said Term Loan granted by

the Plaintiff to the Defendant No.1 as more particularly set out

hereinbelow.

3. The Plaintiff states that pursuant to the application dated 28th June,

2003 made by the Defendant No. 1, the Plaintiff granted/ sanctioned a Term

Loan (Housing) of Rs.6,97,000/- to the Defendant No. 1 for purpose of

purchasing residential flat being the Flat No. 505 situate on the 5 th floor of

the building known as “Shantinath Tower”, Building No.45 constructed on

the land bearing Old Survey No.730, New Survey No.122, Shanti Park,

Mira Road (East), District Thane. The Plaintiff craves leave to refer to and

rely upon the said Loan Application and sanction letter when produced.

4. The Plaintiff states that in consideration of the Plaintiff sanctioning/

 3

granting the said Term Loan of Rs.6,97,000/- and to secure the amounts due

thereunder the Defendant No.1 executed the following security documents in

favour of the Plaintiff ;

(a) Demand Promissory Note dated 9th July, 2003 whereby the

Defendant No. 1 promised to pay to the Plaintiff on demand the

sum of Rs.6,97,000/- for value received with interest thereon as

more particularly set out therein. Hereto annexed and marked

Exhibit “A” is a copy of the said Demand Promissory Note

dated 9th July, 2003.

(b) Loan Agreement dated 9th July, 2003 whereby the Defendant No.1

agreed for the various terms and conditions as more particularly

set out therein. Hereto annexed and marked Exhibit “B” is a

copy of the said Loan Agreement dated 9th July, 2003.

(c) Letter of Installments with Acceleration Clause dated 9 th July,

2003 whereby the Defendant No.1 agreed and undertook to repay

the amount of said Term Loan in monthly installments of

Rs.3,875/- each commencing from 9 th August, 2003 in addition to

the applicable interest as more particularly set out therein.

Hereto annexed and marked Exhibit “C” is a copy of the said

Letter of Installment dated 9th July, 2003.

(d) Letter of Authority dated 9th July, 2003 whereby the Defendant

No.1 authorised the Plaintiff to make payments directly to the

dealer/builder. The Plaintiff crave leave to refer to and rely

 4

upon the said Letter of Authority dated 9 th July, 2003 when

produced.

(e) Letter of Undertaking dated 9th July, 2003 whereby the Defendant

No.1 apart from other things agreed and undertook to utilize the

monies advanced or to be advanced exclusively for the purpose

setforth in his loan proposal. Hereto annexed and marked

Exhibit “D” is a copy of the said Letter of Undertaking dated

9th July, 2003.

(f) Letter of Undertaking dated 9th July, 2003 whereby the Defendant

No.1 undertook to do the various things, deeds as more

particularly set out in the said undertaking. Hereto annexed and

marked Exhibit “E” is a copy of the said Letter of Undertaking

dated 9th July, 2003.

5. The Plaintiff states by way of further security the Defendant No.2

by General Form of Guarantee dated 9 th July, 2003 guaranteed to the

Plaintiff the due repayment of the all amounts due and payable by the

Defendant No.1 to the Plaintiff under the said Term Loan as more

particularly set out in the said Guarantee. Hereto annexed and marked

Exhibit “F” is a copy of the said General Form of Guarantee dated 9 th

July, 2003.

6. The Plaintiff states that as per the terms and conditions of sanction

the Defendant No. 1 was required to create equitable mortgage on the Flat

No. 505 situate on the 5th floor of the building known as “Shantinath

Tower”, Building No.45 constructed on the land bearing Old Survey No.730,

New Survey No.122, Shanti Park, Mira Road (East), District Thane which
 5

was agreed to be purchased by the Defendant No.1 from M/s. Nirav

Developers Pvt. Ltd. under the Agreement for Sale dated 11 th June, 2002.

The Plaintiff states that M/s. Nirav Developers Pvt. Ltd. by their undated

letter confirmed of having sold the said flat to the Defendant No.1. By the

said letter the said Builder, apart from other things, also gave their No

Objection to the Defendant No.1 for mortgaging the said flat to the

Plaintiff as a security for repayment of the amount of Housing Loan.

Hereto annexed and marked Exhibit “G” is a copy of the said letter sent

by M/s. Nirav Developers Pvt. Ltd. .

7. The Plaintiff state that the Defendant No. 1 attended the office of

the Plaintiff Bank on 9 th July, 2003 and deposited with the Plaintiff the

original title deeds in respect of his said immovable property being the Flat

No. 505 situate on the 5th floor of the building known as “Shantinath

Tower”, Building No.45 constructed on the land bearing Old Survey No.730,

New Survey No.122, Shanti Park, Mira Road (East), District Thane with an

intent to create a security in favour of the Plaintiff by way of equitable

mortgage by deposit of title deeds. A more particular description of the

said flat is given the Schedule being Exhibit “H” annexed hereto. The

Plaintiff has recorded creation of the said equitable mortgage in

Memorandum of Entry dated 9th July, 2003. Hereto annexed and marked

Exhibit “I” is a copy of the said Memorandum of Entry dated 9 th July,

2003. The Defendant No.1 also executed a Declaration and Power of

Attorney both dated 9th July, 2003 in respect of the said equitable mortgage.

Hereto annexed and marked Exhibit “J” is a copy of the said Declaration
 6

dated 9th July, 2003. The Plaintiff crave leave to refer to and relied upon

the said Power of Attorney dated 9th July, 2003 when produced.

8. The Plaintiff states that as aforesaid the said Term Loan (Housing)

of Rs.6,97,000/- was sanctioned by the Plaintiff to the Defendant No.1 for

purchasing the said flat described in Exhibit “H” annexed hereto from the

said Builder M/s. Nirav Developers Pvt. Ltd. Pursuant to the letter of

demand dated 4th July, 2003 sent by the said Builder, the Plaintiff, towards

the disbursement of the said Housing Loan, paid a sum of Rs.7,00,000/-

(i.e. Rs.6,97,000/- being the loan amount and Rs.3,000/- being the margin

money contributed by the Defendant No.1) to M/s. Nirav Developers Pvt.

Ltd. by Banker’s cheque No.063526 dated 10 th July, 2003 being the full and

final payment of the price of the said flat. The Plaintiff states that the said

Banker’s cheque has duly been encashed by the said builder through routine

clearing. The Plaintiff crave leave to refer to and rely upon the said letter

of demand and the Receipt issued by the said Builder when produced.

9. The Plaintiff state that the Defendant No.1 thus duly availed of the

said Term Loan with the Plaintiff. The Plaintiff state that in their ordinary

and usual course of Banking business, the Plaintiff has maintained a

separate accounts in their books of account in the name of the Defendant

No.1 in respect of said Term Loan wherein the Plaintiff has duly debited

the amounts lent and advanced by the Plaintiff to the Defendant No.1

together with the accrued interest, costs, charges, expenses etc. The Plaintiff

have also given due credit for the amounts from time to time deposited/
 7

paid by the Defendant No.1. The Plaintiff crave leave to refer to and rely

upon the statement of account when produced.

10. The Plaintiff states that as stated hereinabove the said Term Loan

was repayable by the Defendant No.1 in 180 monthly installments of

Rs.3,875/- commencing from 9th August, 2003 in addition to the regular

monthly interest accrued thereon. The Defendant No.1, however, failed and

neglected to pay the monthly installments to the Plaintiff. The Defendant

No.1 also failed to pay the accrued monthly interest on the said Term

Loan. The Plaintiff time and again called upon and requested the Defendant

No.1 to pay the overdue monthly installments and interest and to regularize

the said Housing Loan account. However, the Defendant No.1 failed to

comply with the said requests made by the Plaintiff.

11. The Plaintiff states that since the Defendants failed to regularize the

said Term Loan, the Plaintiff ultimately by their Advocate’s letter 7 th April,

2005 recorded some of the aforesaid facts and called upon the Defendants

to make the payments of the amounts due under the said Term Loan with

further interest as more particularly set out therein.. The Defendants,

however, failed to comply with the Plaintiff’s Advocate’s said letter dated

7th April, 2005. Hereto annexed and marked Exhibit “K” is a copy of the

said letter dated 7th April, 2005 sent by the Plaintiff’s Advocate.

12. In circumstance, the Plaintiff state that there is now due and

payable jointly and severally by the Defendants to the Plaintiff a sum of

Rs.8,18,806/- under the said Housing Loan as per the Particulars of Claim
 8

being Exhibit “L” annexed hereto with further interest thereon at the rate

of 8.25 % p.a. plus 2% penal interest with monthly rests from the date

hereof till the payment and/or realization.

13. The Plaintiff submits that the Defendant No.1 as the principal

borrower and the Defendant No.2 as the guarantor are jointly and severally

bound and liable to pay to the Plaintiff the aforesaid amounts and interest

as prayed herein. The Plaintiff, therefore, submit that the Defendants jointly

and severally be ordered and decreed to pay to the Plaintiff the amounts,

interest and costs as prayed herein and the suit be accordingly decreed as

prayed.

14. The Plaintiff submits that the aforesaid amount with interest is duly

secured by a valid and subsisting equitable mortgage of the immovable

property being flat described in Exhibit “H” annexed hereto. The Plaintiff

further submit that the Defendants be ordered and directed to pay to the

Plaintiff the aforesaid amounts with interest by a date that this Hon’ble

Court may fix for redemption of the mortgage and in the event of the

Defendants fails to redeem the mortgage by paying the aforesaid amounts

with interest to the Plaintiff within the time so fixed by this Hon’ble Court

for redemption, the said mortgaged immovable property be ordered to be

sold by and under the orders and directions of this Hon’ble Court and the

net sale proceeds thereof be ordered to be paid to the Plaintiff towards

their claim herein.

15. The Plaintiff strongly apprehend that in order to defeat the rights of
 9

the Plaintiff the Defendants may deal with, dispose off, transfer, sublet,

create encumbrances and/ or create a third party rights in or over the said

mortgaged flat. The Plaintiff further submit that the mortgaged flat is in

great danger. The Plaintiff, therefore, submit that it is just, proper and

absolutely necessary that pending the hearing and final disposal of the suit,

the Court Receiver, High Court, Bombay be appointed as a Receiver of the

said mortgaged flat described in Exhibit “H” hereto with all powers under

Order XL Rule 1 of the Code of Civil Procedure, 1908 including the power

to sell the said mortgaged flat and to pay the net sale proceeds thereof to

the Plaintiff towards their claim in the suit.

16. The Plaintiff further submit that it is also just, proper and

absolutely necessary that pending the hearing and final disposal of the suit,

the Defendants, their servants, agents and /or any other person or persons

claiming through or under them be restrained by an order of injunction of

this Hon’ble Court from parting with possession, selling, disposing off,

transferring, encumbering, letting out the said mortgaged flat described in

Exhibit “H” hereto and/ or creating any third party rights or interest of

whatsoever nature in respect thereof.

17. The Plaintiff submits that a grave and irreparable harm, loss, injury

and prejudice will cause to the Plaintiff if the aforesaid reliefs are not

granted whereas no harm, loss, injury and / or prejudice will cause to the

Defendants if the aforesaid reliefs are granted in favour of the Plaintiff.

The Plaintiff have made out a prima facie case for grant of ad-interim and

interim reliefs. The Plaintiff further submits that the balance of convenience,
 10

law and equity is in favour of the Plaintiff and against the Defendants.

The Plaintiff, therefore, respectfully submits that the ad-interim and interim

reliefs as prayed herein be granted in favour of the Plaintiff.

18. The Plaintiff submit that said Term Loan (Housing) was granted at

Mumbai. The amount of the said Housing Loan has been disbursed by the

Plaintiff from Mumbai. The security documents were executed by the

Defendants in Mumbai. The equitable mortgage was created in Mumbai.

The amounts due under the said Housing Loan is payable at Mumbai. The

part payments were made at Mumbai. The material part of the cause of

action has thus arisen at Mumbai. However, the mortgaged flat is situated

at Mira Road (E), District Thane outside the jurisdiction of this Hon’ble

Court. The Plaintiff, therefore, submit that upon leave under Clause XII of

the Letters Patents being granted this Hon’ble Court will have jurisdiction

to entertain, try and dispose of the suit.

19. One Mr. K. V. Achuthan, the Senior Branch Manager of the Plaintiff

who is duly authorized and conversant with the facts of the case and able to

depose to the same has signed and verified the plaint.

20. The Plaintiff value their claim in the suit at Rs.8,18,806/- for the

purpose of court fees and jurisdiction and pay the court of Rs.20,630/-

accordingly.

21. The claim of the Plaintiff is not barred by the Law of Limitation.
 11

22. The Plaintiff will rely upon the documents a list whereof is annexed

hereto.

23. The Plaintiff have not filed any other suit, application or any other

legal proceeding in any court of law for recovery of the amounts claimed

herein except the present suit.

The Plaintiff, therefore, pray ;

(a) that the Defendants jointly and severally be ordered and

decreed to pay to the Plaintiffs a sum of Rs.8,18,806/-

due under the Term Loan as per the particulars of claim

being Exhibit “L” annexed hereto with further interest

thereon at the rate of 8.25 % per annum plus 2% penal

interest with monthly rests from the date hereof till

payment and/or realization.

(b) that it be declared that the repayment of the amounts

mentioned in prayer clause (a) above is duly secured by a

valid and subsisting equitable mortgage of the immovable

property being the flat described in Exhibit “H” hereto.

(c) that the Defendants be ordered and directed to pay to the

Plaintiff the amounts and interest mentioned in prayer

clause (a) above by a date that this Hon’ble Court may fix

for redemption.

(d) that in the event of the Defendants failing to pay to the

Plaintiff the amounts mentioned in prayer clause (a) above

 12

by a date so fixed by this Hon’ble Court for redemption,

the said mortgaged property being the flat described in

Exhibit “H” hereto be ordered to be sold by and under the

orders and directions of this Hon’ble Court and the net sale

proceeds thereof be paid to the Plaintiff towards their claim

in the suit.

(e) that pending the hearing and final disposal of the suit, the

Court Receiver, High Court, Bombay be appointed as a

Receiver of the said mortgaged property being the flat

described in Exhibit “H” hereto with all powers under

Order XL Rule 1 of the Code of Civil Procedure, 1908

including power to sell the said mortgaged flat and to pay

the net sale proceeds thereof to the Plaintiff towards their

claim in the suit.

(f) that pending the hearing and final disposal of the suit, the

Defendants, their servants, agents and /or any other person

or persons claiming through or under them be restrained by

an order of injunction of this Hon’ble Court from parting

with possession, selling, disposing off, transferring,

encumbering, letting out the said mortgaged flat described

in Exhibit “H” hereto and/ or creating any third party rights

or interest of whatsoever nature in respect thereof.

(g) that ad-interim and interim reliefs in terms of payer clause (e)

and (f) above be granted.

(h) That the Defendants be ordered and decreed to pay to the

Plaintiff the cost of the suit.

 13

(i) That such further and other reliefs as this Hon’ble Court may

deem fit and proper be granted in favour of the Plaintiff

and against the Defendants.

Plaint drawn by me For Bank of Baroda.

Senior Branch Manager & C.A.

Advocate for the Plaintiffs. Plaintiff.

VERIFICATION

I, K. V. Achuthan of Indian Inhabitant, the Senior Branch Manager and

Constituted Attorney of the Plaintiff abovenamed, solemnly declare that

what is stated in the paragraphs nos.1 to 9, 11, 12, 19 and 22 is true to my

own knowledge and what is stated in the remaining paragraphs nos. 8, 13 to

18, 20, 21 and 23 is stated on information and beliefs, and I believe the

same to be true.

Solemnly declared at Mumbai )

This 18th day of May, 2005. ) Before me.

Advocate for the Plaintiff.

 14

I am not the member of the advocates Welfare Fund, Hence the stamp of Rs.2/-
is not affixed herewith.

Advocate, High Court..

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO. OF 2005.

Bank of Baroda, )

A Body Corporate constituted under the )

Banking Companies (Acquisition and Transfer )

Of Undertakings ) Act, 1970 having its Head )

Office at Mandvi, Baroda and its Charkop )

Branch at Jayadev House, Plot No. 93/A, Govt. )

Industrial Estate, Sahyadri Nagar, Charkop, )

Kandivli (West), Mumbai - 400 067. ) … Plaintiff.

Versus

1. Shivkumar Lalchand Maheshwari )

of Mumbai Indian Inhabitant residing at )

505, Shantinath Tower, 5th Floor, Building No. 45, )

Shanti Park, Mira Road (East), Dist. Thane. )

2. Prasanta K. Mohapatra , )

of Mumbai Indian Inhabitant residing at )

601/ A Classic , Mira Bhayandar Road, )

 15

Mira Road (East), Dist. Thane. ) …. Defendants.

To,

The Prothonotary & Senior Master

High Court,
Mumbai.

Madam,

We, the Plaintiff above named, do hereby appoint Shri. Anant R. Bamne,

Advocate, High Court, to act, appear and plead on our behalf in the above suit.

IN WITNESS WHEREOF, the Plaintiff have set and subscribed their

hands to this writing, on this 18th day of May, 2005.

ACCEPTED : For Bank of Baroda

Senior Branch Manager & C.A.

Anant R. Bamne Plaintiff
Advocate, High Court,
05 / 109, Esplanade Mansion,1st floor
144, M, G, Road, Fort,
Mumbai 400 023.

O.S. Reg. No. 4871.

 16

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO. OF 2005.

Bank of Baroda ….. .… Plaintiff.

Versus

Shivkumar Lalchand Maheshwari & Anr. …. ….. Defendants.

MEMORANDUM OF REGISTERED ADDRESS

Bank of Baroda
C/o. Shri. Anant R. Bamne
05 / 109, Esplanade Mansion,1st floor
144, M, G, Road, Fort,
Mumbai 400 023.

For Bank of Baroda

Senior Br. Manager & C.A.

Advocate for the Plaintiff. Plaintiff

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 17

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO. OF 2005.

Bank of Baroda ….. .… Plaintiff.

Versus

Shivkumar Lalchand Maheshwari & Anr. …. ….. Defendants.

THE LIST OF DOCUMENTS ON WHICH THE PLAINTIFF WILL RELY

UPON.:

1. Application dated 28th June, 2003 made by the Defendant No.1 with

Plaintiff for Housing Loan.

2. Demand Promissory Note dated 9th July, 2003 of Rs.6,97,000/-.

3. Loan Agreement dated 9th July, 2003.

4. Letter of Installments with Acceleration Clause dated 9th July, 2003.

5. Letter of Authority dated 9th July, 2003.

6. Letter of Undertaking dated 9th July, 2003.

7. Letter of Undertaking dated 9th July, 2003.

8. General Form of Guarantee dated 9th July, 2003 executed by the

Defendant No.2.

9. Letter sent by M/s. Nirav Developers Pvt. Ltd. to the Plaintiff.

10. Memorandum of Entry dated 9th July, 2003.

11. Declaration dated 9th July, 2003 executed by the Defendant No.1 in

respect of the equitable mortgage.

12. Power of Attorney dated 9 th July, 2003 executed by the Defendant

No.1.
 18

13. Letter of demand dated 4 th July, 2003 sent by M/s. Nirav Developers

Pvt. Ltd.

14. The Receipts issued by M/s. Nirav Developers Pvt. Ltd .

15. The office copy of legal notice dated 7 th April, 2005 sent by the

Plaintiffs’ Advocate to the Defendants.

16. Statement of Account.

17. Postal Receipts.

18. Postal acknowledgements/ packet.

19. Correspondence prior to filing of suit.

20. Any other documents, if any, with the leave of this Hon’ble Court.

Dated this 18th day of May, 2005

For Bank of Baroda..

Advocate for the Plaintiff. Senior Branch Manager & C.A.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO. OF 2005.

 19

Bank of Baroda …. …. Plaintiff.

Versus.

Shivkumar Lalchand Maheshwari & Anr …. …. Defendants.

I, K. V. Achuthan of Indian Inhabitant, the Senior Branch Manager

and the Constituted Attorney of the Plaintiff abovenamed do hereby

solemnly affirm and say as under:

1. I say that I am conversant with the facts of the above case and

able to depose the same.

2. I say that the Plaintiff has filed the above suit against the Defendants

for recovery of the sum of Rs.8,18,806/- due and payable by the Defendants

to the Plaintiff under the Housing Loan as per the particulars of claim being

Exhibit ‘L’ annexed to the plaint with further interest thereon at the rate of

8.25% per annum plus 2% penal interest with monthly rests from the date

hereof till payment or realization, for enforcement of mortgaged security and

for interim and ad-interim reliefs as more particularly prayed in the plaint. I

verify that the averments and statements made in the plaint are true and

correct. I hereby confirm and adopt the said statements, submissions and

averments made in the plaint and reproduce the same herein verbatim so as

to form part of this affidavit.

3. I say that as more particularly set out in the plaint the Defendants

are just and truly indebted to the Plaintiff in the said amount of

Rs.8,18,806/- with further interest as claimed in the plaint. I further say

that the Defendants are bound and liable to pay to the Plaintiff the said
 20

amount, interest and costs claimed in the plaint. I further say that the

Plaintiff is entitled to enforced the mortgaged securities and is accordingly

entitled for the necessary orders and reliefs from this Hon’ble Court in

respect of the said security as prayed for by the Plaintiff in the plaint.

In the circumstances, I pray that the Defendants be ordered and

decreed to pay to the Plaintiff the said amounts, interest and costs and the

necessary orders and reliefs in respect of the mortgaged property be

granted in favour of the Plaintiff as prayed in the plaint.

Solemnly affirmed at Mumbai. )

This 18th day of May, 2005 ) Before me

Advocate for the Plaintiff.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL

JURISDICTION.

SUIT NO. OF 2005

 21

Bank of Baroda. …Plaintiffs.

Versus

Shivkumar L. Maheswari
& Anr. …Defendants.

Affidavit of Mr. K. V. Achuthan in support

of the plaint.
--------------------------------------------------------

Dated this 18th day of May, 2005.

Anant R. Bamne
Advocates for the Plaintiff,
05 / 109, Esplanade Mansion,1st floor,
144, M, G, Road, Fort,
Mumbai 400 023.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO. OF 2005.

Bank of Baroda …. …. Plaintiff.

Versus.
 22

Shivkumar Lalchand Maheshwari & Anr …. …. Defendants.

I N D E X

Sr. No. Particulars Page Nos.

1 Proforma A - D

2 Plaint 1 to

3. Vakalatnama

4. Mememorandum of Address.

5. List of Documents.

6. EXHIBITS

Exhibit. ‘A’
A copy of the Demand Promissory
Note dated 9th July, 2003 of Rs.6,97,000/-.

Exhibit. ‘B’
A copy of Loan Agreement
dated 9th July, 2003.

Exhibit ‘C’
A copy of Letter of Installments
dated 9th July, 2003

Exhibit ‘D’
A copy of Letter of Undertaking
dated 9th July, 2003.

Exhibit ‘E’
A copy of Letter of Undertaking
dated 9th July, 2003.

Exhibit ‘F’
A copy of the General Form of
Guarantee dated 9th July, 2003.

Exhibit ‘G’
A copy of letter sent by M/s. Nirav Developers.

Exhibit ‘H’
Description of Immovable Property.
 23

Exhibit ‘I’
A copy of Memorandum of Entry
dated 9th July, 2003.

Exhibit ‘J’
A copy of Declaration dated 9th July, 2003
executed by the Defendant No.1.

Exhibit ‘K’
A copy of the letter dated 7th April, 2005
sent by the Plaintiffs’ Advocate to the Defendants.

Exhibit ‘L’
Particulars of claim

Affidavit of Mr. K. V. Achuthan the Senior

Manager of the Plaintiff in Support of Plaint.

Anant R. Bamne
Advocate for the Plaintiff

EXHIBIT "G'"

PARTICULARS OF CLAIM

The amounts due and payable by the

Defendants under the Term Loan

as on 31.01. 2005. Rs.1,03,834/-

 24

Add: Unapplied interest at the rate of

16 % p.a. with monthly rest from

01.02.2005 till 22.03.2005 Rs. 2,215/-

----------------
Total Rs.1,06,049/-
===========

With further interest thereon at the rate of

16% p.a with monthly rests from the date hereof

till payment or realization plus 2% penal

interest.

For Bank of Baroda

Senior Branch Manager & C.A.

Advocate for the Plaintiff . Plaintiff

IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

ORDINARY ORIGINAL CIVIL

JURISDICTION.

SUIT NO. OF 2005

Bank of Baroda. …Plaintiffs.

Versus
 25

Shivkumar L. Maheswari
& Anr. …Defendants.

P L A I N T
--------------------------------------------------------

Dated this 18th day of May, 2005.

Anant R. Bamne
Advocates for the Plaintiff,
05 / 109, Esplanade Mansion,1st floor,
144, M, G, Road, Fort,
Mumbai 400 023.
EXHIBIT “H”

( Description of Immovable Property)

Flat No. 505 situate on the 5 th floor of the building known as

“Shantinath Tower”, Building No.45 constructed on the land

bearing Old Survey No.730, New Survey No.122, Shanti Park,

Mira Road (East), District Thane

 26

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

LETTERS PATENT PETITION NO. OF 2005.

In the matter of intended Suit to be filed

by the Petitioner against the Respondents.

AND

In the matter of Leave under Clause XII

Of Letters Patent.
 27

Bank of Baroda, )

A Body Corporate constituted under the )

Banking Companies (Acquisition and Transfer )

Of Undertakings ) Act, 1970 having its Head )

Office at Mandvi, Baroda and its Charkop )

Branch at Jayadev House, Plot No. 93/A, Govt. )

Industrial Estate, Sahyadri Nagar, Charkop, )

Kandivli (West), Mumbai - 400 067. ) … Petitioner.

Versus

1. Shivkumar Lalchand Maheshwari )

of Mumbai Indian Inhabitant residing at )

505, Shantinath Tower, 5th Floor, Building No. 45, )

Shanti Park, Mira Road (East), Dist. Thane. )

2. Prasanta K. Mohapatra , )

of Mumbai Indian Inhabitant residing at )

601/ A Classic , Mira Bhayandar Road, )

Mira Road (East), Dist. Thane. ) …. Respondents.

To,

THE HON’BLE THE CHEF JUSTICE AND

OTHER JUDGES OF THIS HONOURABLE

COURT.

THE HIMBLE PETITION OF THE PETITIONER ABOVENAMED

 28

MOST RESPECTFULLY SHEWETH :

1. The Petitioner is a Body Corporate constituted under the Banking

Companies (Acquisition and Transfer of Undertakings ) Act, 1970 having its

Head Office at Mandvi, Baroda and having its Branch office at Jayadev

House, Plot No. 93/A, Govt. Industrial Estate, Sahyadri Nagar, Charkop,

Kandivli (West), Mumbai - 400 067 The Petitioner inter-alia carries on

business as Bankers.

2. The Respondent No. 1 is the constituent of the Petitioner and are

being sued as the principal borrower having enjoyed a credit facility with

the Petitioner as more particularly set out in the plaint. The Respondent

No.2 is being sued as the guarantor having guaranteed to the Petitioner the

due repayment of the amounts outstanding under the loan granted by the

Petitioner to the Respondent No.1 as more particularly set out in the plaint.

3. The Petitioner submit that they intends to file a suit against the

Respondents for recovery of a sum of Rs.8,18,806/- due and payable by

the Respondents to the Petitioner under the Term Loan (Housing) as per

the particulars of claim being Exhibit ‘L ’ annexed to the plaint with further

interest, for enforcement of mortgaged security and for other reliefs as more

particularly set out in the plaint.

4. The Petitioner submit that the Respondents have failed and neglected

to pay the amounts due to the Petitioner. The Petitioner repeat, reiterate
 29

and adopt all the averments and statements made in the plaint as if the

same are incorporated herein and forms a part of this petition.

5. The Petitioner submit that the Respondents are bound and liable to

pay to the Petitioner the aforesaid amounts, interest and costs as prayed

herein. The Petitioner , therefore , submit that they are entitled for a decree

against the Respondents as prayed in the plaint.

6. The Petitioner submits that said Term Loan (Housing) was granted at

Mumbai. The amount of the said Housing Loan has been disbursed by the

Plaintiff from Mumbai. The security documents were executed by the

Defendants in Mumbai. The equitable mortgage was created in Mumbai.

The amounts due under the said Housing Loan is payable at Mumbai. The

part payments were made at Mumbai. The material part of the cause of

action has thus arisen at Mumbai. However, the mortgaged flat is situated

at Mira Road (E), District Thane outside the jurisdiction of this Hon’ble

Court. The Petitioner, therefore, submit that upon leave under Clause XII of

the Letters Patents being granted this Hon’ble Court will have jurisdiction

to entertain, try and dispose of the suit.

7. A copy of the plaint is annexed hereto.

8. The Petitioner submit that a Leave under Clause XII of the Letters

Patents be granted to file the said suit against the Respondents in this

Hon’ble Court.
 30

The Petitioner, therefore pray :-

(a) that this Hon’ble Court may be pleased to grant leave to the

Petitioner under Clause XII of the Letters Patent to file the suit

against the Respondents.

(b) That the costs of the Petition be provided for.

Petition drawn by me For Bank of Baroda.

Senior Branch Manager & C.A.

Advocate for the Petitioner. Petitioner.

VERIFICATION

I, K. V. Achuthan, the Senior Branch Manager, of the Petitioner

abovenamed, solemnly declare that what is stated in the paragraphs nos. 1

to 4 and 7 is true to my own knowledge and what is stated in the

remaining paragraphs nos. 5, 6 and 8 is stated on information and beliefs,

and I believe the same to be true.

Solemnly declared at Mumbai )

This 18th day of May, 2005. ) Before me.

Advocate for the Petitioner.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL

JURISDICTION.

LETTERS PATENT PETITION NO. OF 2005

In the matter of intended Suit to be

filed by the Petitioner against the
Respondents.
AND
In the matter of Leave under Clause
XII of Letters Patent.

Bank of Baroda. …. Petitioner.

Versus.

Shivkumar L. Maheshwari
 32

& Anr. …. Respondents.

PETITION
---------------------------------------------

Dated this 18th day of May, 2005.

Anant R. Bamne
Advocates for the Petitioner,
05/ 109, Esplanade Mansion,1st floor,
144, M, G, Road, Fort,
Mumbai 400 023.
EXHIBIT "L'"

PARTICULARS OF CLAIM

The amounts due and payable by the

Defendants under the Term Loan

as on 28.02. 2005. Rs.8,03,251/-

Add: Interest at the rate of

8.25 % p.a. with monthly rest from

01.03.2005 till 18.05.2005 Rs. 15,555/-

----------------
Total Rs.8,18,806/-
 33

===========

With further interest thereon at the rate of

8.25% p.a with monthly rests from 18.05.2005

till payment or realization plus 2% penal

interest.

For Bank of Baroda

Senior Branch Manager & C.A.

Advocate for the Plaintiff . Plaintiff