Bombay High Court
MR. SHYAM KABADKARversusCANARA BANK, MANDVI BRANCH THR AUTHORIZED OFFICER AND OTHERS
- Decided
- Disposal
- Disposed Off
- Bench
- MILIND N JADHAV
Holding
The appellate court stayed any coercive possession steps by the bank and directed a minimum 15‑day notice to the plaintiff before any action, without expressing any view on the merits.
Summary
The appellant, Shyam Kabadkar, sought protection against the bank's attempt to take possession of a property, citing the pending SARFAESI proceedings and the welfare of his children. The bank argued that substantial recovery was due and it should be allowed to proceed with coercive steps. The court noted the existence of a FIR alleging fraud by bank officials and the pending statutory application under Section 34 of the SARFAESI Act, which limits civil court jurisdiction for interim relief. Without deciding the merits, the court stayed any coercive action by the bank and ordered that the bank give the plaintiff at least 15 days’ notice before any possession steps. The order was directed to be placed before the City Civil Court for further hearing of the pending Notice of Motion, and the appeal was disposed.
Issues considered
- Whether the civil court has jurisdiction to grant interim relief when a SARFAESI application under Section 34 is pending
- Whether the bank may take coercive steps to take possession of the property without prior notice to the plaintiff
- Whether the appellate court should stay the interim order and impose a notice requirement pending final determination
Legislation cited
- SARFAESI Act — s. 34
Subjects
- possession
- interim relief
- SARFAESI Act
- bank recovery
- coercive steps
- notice requirement
- child welfare
Judgment
904. AO-625-2025.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 625 OF 2025
Shyam Kabadkar Appellant
.. (Org. Plaintiff)
Versus
Canara Bank & Ors. Respondents
.. (Org. Defendants)
....................
Mr. Pradyumna Sharma a/w Mr. Amardeep Bhattacharya & Ms.
N.N. Jain, Advocates for Appellant
Ms. Fatima Lakdawala, Advocate for Respondent Nos. 1, 8 & 9
...................
CORAM : MILIND N. JADHAV, J.
DATE : FEBRUARY 17, 2026
P. C.:
1. Heard Mr. Sharma, learned Advocate for Appellant - Org.
Plaintiff and Ms. Lakdawala, learned Advocate for Respondent Nos. 1,
8 & 9 - Org. Defendants.
2. Matter was fixed today on the Supplementary Board in view of
the urgency expressed by Mr. Sharma that possession of the subject
property was slated to be taken by Defendant No. 1 - Bank.
3. Ms. Lakdawala, learned Advocate appearing for Defendant No.
1 - Bank informs the Court that possession was not taken yesterday
due to unavailability of police protection. She would submit that as
and when future steps are taken, appropriate notice shall be given to
Plaintiff who is Appellant before me. That apart, she informs the
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Court that simultaneously Plaintiff who is the co-borrower and
guarantor has filed Statutory Application before the DRT and is
prosecuting the same and therefore in view of the provisions of
Section 34 of the SARFAESI Act, Civil Court has refused the ad-interim
relief. She would submit that Civil Court has no jurisdiction even if it
is so opined by the learned Trial Court. Be that as it may, presently
there is no need or any urgency in the matter to be heard forthwith.
4. At this stage Mr. Sharma makes a request to the Court that since
the impugned order in the present Appeal from Order is an ad-interim
order, directions be given to decide the Notice of Motion finally in a
time bound manner. He would submit that there is apparent fraud
element because of which Plaintiff has been compelled to file the Civil
Suit. Be that as it may, pending Notice of Motion is directed to be
decided and disposed of strictly in accordance with law as
expeditiously as possible within a period of eight weeks from today.
All contentions of Defendant No. 1 Bank and Plaintiff are expressly
kept open. The impugned order which is an ad-interim order is stayed
until the Notice of Motion is decided finally.
5. Mr. Sharma would submit that appropriate directions be passed
in the interim not to take any coercive steps in respect of possession of
the subject property for the following two reasons. Firstly he would
submit that two children of the Plaintiff aged about 12 and 21 years
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are required to appear for their annual academic examinations. He
would submit that the elder child is appearing and preparing for
Company Secretary examination slated in June 2026 whereas the
younger child is required to give his school examination. He has
placed the examination timetable before me. In that view of the
matter, he would submit that if any coercive steps are taken, it would
drastically affect the children and also affect their psychology to
appear for the academic examinations. Secondly he would submit that
there is a FIR which has been lodged against the officials of the Bank,
inter alia, with respect to the suit transaction itself citing their
complicity and collusion and committing a fraud. Hence he would
submit that the Court be considerate enough to pass appropriate
directions.
6. Per contra, Ms. Lakdawala would vehemently oppose the
request made by Mr. Sharma. She would submit that substantial
recovery of more than Rs. 5 Crores is pending and is to be recovered.
That apart the bank official who is handling the matter as also the
concerned Branch are required to finalize their year ending accounts
for which they have to take appropriate steps for recovery. Hence she
would submit that in the interregnum no protection whatsoever be
granted to the Plaintiff and the Bank be allowed to take steps in
accordance with law.
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7. I have considered the rival submissions as also the request made
by Mr. Sharma. Without giving any imprimatur on merits of the
matter, I direct Defendant No. 1 Bank not to take any coercive steps
without giving at least 15 days advance notice to the Plaintiff of any
purported action to be taken so as to enable the Plaintiff to take steps
available to him in accordance with law.
8. Needless to state that this Court has not expressed any opinion
on merits of the matter and this order is passed only after considering
the request made by Mr. Sharma.
9. Copy of this order shall be placed before the learned City Civil
Court tomorrow i.e. on 18.02.2026 at 11.00 a.m. to enable it to
determine hearing of the Notice of Motion as per its convenience.
10. With the above directions, Appeal from Order is disposed.
Amberkar [ MILIND N. JADHAV, J. ]
Digitally signed
by RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2026.02.17
15:10:38 +0530
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