w w w . L a w y e r S e r v i c e s . i n



The Cosmos Co-Op. Bank Ltd. v/s Anoushka Medicare & Diagnostics Pvt. Ltd.


Company & Directors' Information:- D. S. MEDICARE PRIVATE LIMITED [Active] CIN = U85100WB2008PTC129181

Company & Directors' Information:- P. P. DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U85100PN2008PTC132038

Company & Directors' Information:- OP INDIA PRIVATE LIMITED [Active] CIN = U29253DL2015FTC285049

Company & Directors' Information:- K K MEDICARE PRIVATE LIMITED [Active] CIN = U85310CH1998PTC021033

Company & Directors' Information:- MEDICARE INDIA PRIVATE LIMITED [Amalgamated] CIN = U99999TG1986PTC006690

Company & Directors' Information:- K V MEDICARE & DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U74900JK2013PTC003786

Company & Directors' Information:- J J DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U85100CT2013PTC000862

Company & Directors' Information:- K D MEDICARE PRIVATE LIMITED [Active] CIN = U85110DL2000PTC107059

Company & Directors' Information:- M M DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U85110DL1996PTC077165

Company & Directors' Information:- A & A MEDICARE PRIVATE LIMITED [Active] CIN = U85190WB2009PTC140435

Company & Directors' Information:- V G S MEDICARE INDIA PRIVATE LIMITED [Strike Off] CIN = U24231TN1988PTC015301

Company & Directors' Information:- I AND P MEDICARE LIMITED [Strike Off] CIN = U85110DL1993PLC052226

Company & Directors' Information:- S. J. MEDICARE PRIVATE LIMITED [Active] CIN = U85110GJ2011PTC065287

Company & Directors' Information:- B. L. MEDICARE PRIVATE LIMITED [Active] CIN = U74900UP2010PTC041353

Company & Directors' Information:- A P DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U85100UP2008PTC036452

Company & Directors' Information:- S B MEDICARE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC047778

Company & Directors' Information:- M H S MEDICARE INDIA PRIVATE LIMITED [Active] CIN = U74899DL2000PTC105024

Company & Directors' Information:- S M DIAGNOSTICS PRIVATE LIMITED [Strike Off] CIN = U85110TN1996PTC034213

Company & Directors' Information:- R. S. MEDICARE PRIVATE LIMITED [Active] CIN = U85110PB2008PTC032129

Company & Directors' Information:- E-COSMOS (INDIA) PRIVATE LIMITED [Active] CIN = U30007KA2004PTC034007

Company & Directors' Information:- MEDICARE DIAGNOSTICS PVT. LTD. [Active] CIN = U85110AP1993PTC015966

Company & Directors' Information:- G B MEDICARE PRIVATE LIMITED [Strike Off] CIN = U24232PB2011PTC034562

Company & Directors' Information:- S S MEDICARE PRIVATE LIMITED [Active] CIN = U85110DL2002PTC115168

Company & Directors' Information:- S C DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U51397KA1990PTC011418

Company & Directors' Information:- J J MEDICARE PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1988PTC033496

Company & Directors' Information:- I M MEDICARE PRIVATE LIMITED [Strike Off] CIN = U74999DL2004PTC131201

Company & Directors' Information:- J S MEDICARE PRIVATE LIMITED [Strike Off] CIN = U85110MP2009PTC022054

Company & Directors' Information:- S. A. K. MEDICARE PRIVATE LIMITED [Active] CIN = U24230HR2019PTC081503

Company & Directors' Information:- K S K DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U51397TZ2009PTC015688

Company & Directors' Information:- MEDICARE DIAGNOSTICS PVT LTD [Active] CIN = U33119PB1994PTC014458

Company & Directors' Information:- J D DIAGNOSTICS PVT LTD [Active] CIN = U85195KL1990PTC005906

Company & Directors' Information:- I. C. MEDICARE PRIVATE LIMITED [Active] CIN = U24232DL2008PTC177588

Company & Directors' Information:- A R S R DIAGNOSTICS PVT LTD [Strike Off] CIN = U85195WB1990PTC048501

Company & Directors' Information:- M M MEDICARE PRIVATE LIMITED [Active] CIN = U85110OR2005PTC008481

Company & Directors' Information:- D AND M DIAGNOSTICS PRIVATE LIMITED [Under Process of Striking Off] CIN = U24232GA1989PTC000951

Company & Directors' Information:- MEDICARE PVT LTD [Strike Off] CIN = U22121AS1982PTC001957

Company & Directors' Information:- M. R. DIAGNOSTICS PRIVATE LIMITED [Strike Off] CIN = U85100TG1998PTC029529

Company & Directors' Information:- CO-OP PVT LTD [Active] CIN = U70109WB1944PTC011810

Company & Directors' Information:- T AND T DIAGNOSTICS PRIVATE LIMITED [Strike Off] CIN = U24240MH1998PTC117365

Company & Directors' Information:- S A DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U51909MH2012PTC226292

Company & Directors' Information:- P & P MEDICARE PRIVATE LIMITED [Active] CIN = U74999MH2011PTC224186

Company & Directors' Information:- B M K DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U85191UP2009PTC037375

Company & Directors' Information:- S P G MEDICARE PRIVATE LIMITED [Active] CIN = U24231DL2001PTC113231

Company & Directors' Information:- D. V. MEDICARE PRIVATE LIMITED [Active] CIN = U51909DL2017PTC327336

Company & Directors' Information:- S G MEDICARE PRIVATE LIMITED [Active] CIN = U74999DL2010PTC202423

Company & Directors' Information:- Y K MEDICARE PRIVATE LIMITED [Strike Off] CIN = U74900DL2009PTC194522

Company & Directors' Information:- V K S T MEDICARE PRIVATE LIMITED [Active] CIN = U85100DL2010PTC198134

Company & Directors' Information:- R V DIAGNOSTICS PRIVATE LIMITED [Active] CIN = U85110DL2003PTC120955

Company & Directors' Information:- G N MEDICARE PRIVATE LIMITED [Strike Off] CIN = U85110DL2004PTC131348

Company & Directors' Information:- M R MEDICARE PRIVATE LIMITED [Strike Off] CIN = U85120DL2010PTC206224

Company & Directors' Information:- R. C. MEDICARE PRIVATE LIMITED [Strike Off] CIN = U24232GJ2007PTC051001

Company & Directors' Information:- R N MEDICARE PRIVATE LIMITED [Active] CIN = U51397MH2021PTC353742

Company & Directors' Information:- THE COSMOS BANK LIMITED [Active] CIN = U99999MH1933PTC002029

    Comm. Arbitration Petition No. 50 of 2019

    Decided On, 29 January 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE B.P. COLABAWALLA

    For the Petitioner: Rishabh Shah a/w Fatima Barodawalla i/b Raval Shah, Advocates. For the Respondent: Virag Tulzapurkar, Sr. Advocate i/b. Mandar Soman, Advocate.



Judgment Text


1. By consent of parties the Petition is taken up for hearing and final disposal.

2. By this petition filed under Section 37 of the Arbitration and Conciliation Act, 1996 (for short “the Act”), the petitioner-Bank challenges the order passed by the Arbitral Tribunal dated 3rd August, 2018 and 23rd October, 2018 in the pending arbitration proceedings. The order dated 3rd August, 2018 was passed by the Arbitrator at the instance of the respondent-claimant restraining the petitioner-Bank from taking any coercive steps against the respondent-claimant for recovery of the loan. In effect, this order of the Tribunal restrained the petitioner-Bank even from initiating the proceedings under the SARFAESI Act, 2002. Since this order was passed ex-parte and without hearing the petitioner-Bank, an application was moved for recall of this order. This application is dated 5th October, 2018. It is in this application that the Tribunal passed the order dated 23rd October, 2018 whereby the application of the petitioner-Bank was rejected.

3. I have heard Mr. Shah, learned Advocate appearing on behalf of the petitioner -Bank as well as Mr. Tulzapurkar, learned Senior Counsel appearing on behalf of the respondent (the claimant before the Arbitral Tribunal). Mr. Tulzapurkar, contended that the Arbitral Tribunal was fully justified in restraining the petitioner-Bank from taking any coercive action (and which would include the proceedings under the SARFAESI Act, 2002), in view of the express undertaking given by the petitioner-Bank in its letter dated 22nd January, 2018. In this letter, and which is addressed to the Joint Secretary of the Central Government of India and the Central Registrar of Co-operative Societies, Ministry of Agriculture and Farmers Welfare, the petitioner-Bank assured that no action would be taken inter alia against the respondent-claimant till the final orders are passed by the Arbitrator.

4. Though there may be some merit in the arguments canvassed by Mr. Tulzapurkar, I find that the order dated 3rd August, 2018 could not have been passed by the Arbitrator under Section 17 in view of the express bar contained in Section 34 of the SARFAESI Act, 2002. Section 34 of the SARFAESI Act, clearly stipu-lates, that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the SARFAESI Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the SARFAESI Act.

5. This being the clear position in law, though there may be some merit in the arguments canvassed by Mr. Tulzapurkar, the question that still arises is whether the Arbitrator could have restrained the petitioner-Bank from exercising its power under the provisions of the SARFAESI Act, 2002. To my mind, in view of the express provisions of Section 34 of the SARFAESI Act, 2002, the Arbitrator could not have restrained the petitioner-Bank from exercising its powers under the SARFAESI Act, 2002. It is not as if the claimant (the respondent herein) is left remediless if such action is taken. In such a situation, the same arguments that were canvassed before me, can certainly be canvassed before the Debts Recovery Tribunal (in short “DRT”), if and when the respondent challenges the action taken by the petitioner-Bank, under Section 17 of the SARFAESI Act, 2002.

6. This being the case, I find that the orders passed by the Arbitral Tribunal dated 3rd August, 2018 and 23rd October, 2018 cannot be sustained and I hereby set aside the same.

7. Considering that the present litigation has been bona fide prosecuted by the respondent herein, the petitioner-Bank is restrained from taking any further action against the respondent under the provisions of the SARFAESI Act, 2002 for a period of three weeks from today so as to enable the respondent to approach the DRT under Section 17 to challenge the action taken by the petitioner-Bank under the provisions of the SARFAESI Act. This will be subject to further orders that may be passed by the DRT after hearing both the parties. It is made clear that I have not opined on the

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merits of the arguments canvassed on behalf of the respondent or the petitioner and the application to be filed by the petitioner before the DRT shall be decided by it on its own merit and uninfluenced by any observations made either by the Arbitral Tribunal or in this order. 8. The Arbitration Petition is disposed of in the aforesaid terms. In the facts and circumstances of the case, there shall be no order as to costs. Arbitration Petition disposed of.
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