TEXT OF CIVIL APPLICATION 3110/2003 IN APPEAL FROM ORDER 176/2003

CIVIL APPLICATION 3110/03 IN APPEAL FROM ORDER 176/03 IN GUJARAT HIGH COURT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: AHMEDABAD


CIVIL APPLICATION NO. 3110 OF 2003

IN


APPEAL FROM ORDER NO 176 OF 2003



1. PANKAJ SURESHCHANDRA MODY
HINDU, ADULT, RESIDING AT 40 BRAHMAN
MITRA MANDAL SOCIETY, PALDI,
AHMEDABAD 380006 ….. ……. APPLICANT



VERSUS


1. DHANYUSHYA FINANCIAL LTD
2. MR. JATIN JALUNDHALA
3. M/S CORE HEALTH CARE LIMITED

ALL SITUATED AT CORE TOWERS
NEAR PARIMAL RLY CROSSING
OPPOSITE DOCTOR HOUSE
AHMEDABAD
4. GLOBAL TRUST BANK …….. OPPONENTS


CIVIL APPLICATION FOR STAY


MOST RESPECTFULLY SHEWETH THAT:

1. The applicant above named – original plaintiff being aggrieved by order dated 8-4-2003 rendered by the learned judge Shri V.C. Modi of Chamber Court of City Civil Court , Bhadra , Ahmedabad below Exh 6 in Suit 5827 of 2001, have preferred the above numbered Appeal From Order on the facts and grounds stated therein. The applicant crave leave to refer and rely upon the facts and ground stated in the aforesaid Appeal from Order, the same may be treated as part and parcel of this application for stay.
2. That the applicant is founder director and shareholder of Rupmanglam Investment Private Limited and that he continues as director as well as shareholder of this company having paid up capital of Rs 15. 00 lakhs. The Said company owns 62% share in immoveable property located on F.P. 768/10 in Chadawad near Parimal Rly Crossing. That the opponent 1,2 created charge on Rupmanglam above referred property by charging the same to Opponent 4 bank in March 99 so as to make available term loan to opponent 3 a sum of Rs 12.5 crores. This has been done by opponent 1,2 inspite of not having authority and power vested in them to do so and the opponent 4 did not make necessary inquiries at the time of appraisal and sanction of charge that they do not have necessary authority, power to create charge.
3. The present applicant had filed civil suit 5827/2001 along with injunction application and obtained status quo order passed on 31-12-2001 and this has been in force till 5-5-2003 as per the extension granted by the honorable judge on 28-4-2003.
4. The order passed on 31-12-2001 under exhibit 5 had stated that present opponents are hereby directed to produce on record all relevant information and details supported by the documentary evidence as asked for by the plaintiff in the letter dated 29-7-99 as well as about right and title on the suit property.
5. Even in Civil Revision Application on 25 and 26 filed by the opponent 1 the Opponents were directed to furnish the particulars in relation to Exh 5 latest by April 26,2002. The opponents have not furnished all relevant information and details supported by documentary evidence as asked for by the applicant and so also they have not furnished information in para 21(b) of stay application in the civil suit 5827/2001.
6. It is clear from the information furnished to the chamber court by the opponents that they have not been able to furnish any satisfactory evidence that defendant 2 as well as his colleague continue to be the directors after the expiry of their term as additional directorship. They have not furnished any documentary evidence that defendant 1 own all the shares of Rupmanglam, that they have necessary statutory registrars in form of Minute book records to show that the management has been fully vested in Defendant 1 and 2 . The defendants have not produced any documentary Evidence and confirmation from the escrow persons that they have handed as regards to compliance report showing that they have handed over letters of resignation, shares, transfer deeds from all the members simultaneously and released the cheques given by the defendant 1 lying with them to the applicant as perunderstanding from time to time. The defendants have not adduced necessary evidence as called for in para 21(b) of the injunction Application as well as orders passed on 31-12-2001 under exhibit 5.
7. The applicant submit that the appiicant have strong primae facie case and the balance of convenience is in his favour. The applicant submit that if the interim as prayed for in this application is not granted, the applicant will suffer irreparable loss and injury which cannot be compensated in terms of money. On the other hand, the opponents are not likely to suffer any loss and injury , if the interim relief as prayed for is granted. Therefore, it is just, fit, expedient, and in the interest of justice that this H’onorable Court be pleased to grant the interim relief as prayed for.
8. The applicant, therefore, pray that:-

(A) Pending hearing and final disposal of the Appeal from Order, this H’onble Court be pleased to stay and suspend the implementation ,operation and execution of the impugned judgment and order dated 8-4-2003 rendered below Exh 6 in civil suit 5827 of 2001 by the learned judge Shri V.C. Modi of Chamber Court of City civil court at Bhadra. and the opponents are restrained to sell, or transfer by way of Sale, gift or in any other manner and /or part the possession or create charge on the suit property. This may be granted till final disposal of the present Appeal from Order.
(B) Pending hearing and final disposal of the present civil application , this H’onble Court be pleased to stay and suspend the implementation ,operation and execution of the impugned judgment and order dated 8-4-2003 rendered below Exh 6 in civil suit 5827 of 2001 by the learned judge of
Chamber Court of City civil court at Bhadra and the opponents are restrained to sell, or transfer
by way of Sale, gift or in any other manner and/or part the possession or create Charge on the
suit property. This may be granted till final disposal of the present Civil Application.
(C) Ex-parte ad-interim relief in terms of prayers (A) and (B) above may Kindly be granted and the same be confirmed after notice to the opponents herein.
(D) The opponents are called upon to furnish all the documents as referred in para 21(b) of original stay application in plaint 5827/2001 and the said documents are kept in avaljapti.
(E) The applicant humbly request to allow original notice of motion as stated on 31-12-2001 and accordingly injunction may be granted.
(F) Be pleased to pass such other and further reliefs, as the nature and circumstances of the present case may require.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL , AS IN DUTY BOUND, FOR EVER PRAY.


AHMEDABAD

DATE: /05/2003 ---------------------------



A F F I D A V I T


I PANKAJ SURESHCHANDRA MODY, SON OF SURESHCHANDRA MOI, hindu, resident of Ahmedabad, the applicant herein, do hereby state on solemn affirmation as under:-

1. That what is stated in paragraphs is true to the best of knowledge , information and I believe the same to be true. That paragraph no 8 contains prayer clause.

Solemnly affirmed on this day
of May 2003 at Ahmedabad.