ORDER : (ARIF S. DOCTOR, J.) 1. The captioned Suit has been filed inter alia seeking a declaration that the (a) Plaintiff is the exclusive first charge holder / mortgagee in respect of two properties,[(i) a property admeasuring 21,774.10 sq. mtrs. situated at C.S. Nos. H401, H402, H415 to H438 of Bandra Village, Samtacruz (W), Mumbai with structures standing thereon (Santacruz Property) and (ii) a plot of land known as Ghia Compound admeasuring 4,325.30 sq. mtrs. bearing C.S. No. H/395, H/296, H/397 and H/398 of Bandra Village, Santacruz (W), Mumbai (the Ghia Compound Property)] i.e. the Santacruz Property and the Ghia Compound Property more particularly set out in Exhibit ‘A’ to the plaint (“the Suit Properties”) and (b) the Deeds of Simple Mortgage dated 30th July 2018 are void and illegal to the extent of the mortgage created by Defendant Nos. 2 and 3. 2. Before adverting to the rival contentions, it is necessary for context, to set out the following facts, viz. i. The Original Plaintiff i.e. Yes Bank Limited (“Yes Bank”) had sanctioned certain financial faculties/loans under three Term Loan Facility Agreements to Defendant No.2 to the extent of Rs.700 crores. ii. Defendant No. 2 and one Real Estate Projects Private Limited (“REPPL”) as 50% owners of the Santacruz Property mortgaged the said property in favour of Yes Bank under Deeds of Mortgage dated 9th February 2016 and 12th May 2016 respectively as and by of security for due repayment of the said facilitates granted by Yes Bank to Defendant No.2. Defendant No.3 then, by way of a Supplemental Deed of Mortgage dated 6th February 2018 as owner, mortgaged the Ghia Compound plot in favour of Yes Bank. The threeMortgage Deeds executed in favour of the Plaintiff are for convenience referred to as “the Plaintiff’s Mortgage”. iii. It is not in dispute that all the clauses contained in all the aforesaid Deeds of Mortgage were virtually identical. For convenience, reference to the relevant clauses from the Plaintiff’s Mortgage i.e. clauses 5, 13(d) and 10(B) of Schedule I are extracted from the Deed of Mortgage dated 9th February 2016, which are as follows: “5. iii. It is not in dispute that all the clauses contained in all the aforesaid Deeds of Mortgage were virtually identical. For convenience, reference to the relevant clauses from the Plaintiff’s Mortgage i.e. clauses 5, 13(d) and 10(B) of Schedule I are extracted from the Deed of Mortgage dated 9th February 2016, which are as follows: “5. DEALINGS WITH RESPECT TO THE MORTGAGED PROPERTIES The Mortgaged Properties shall be specifically appropriated in the charge and mortgage and lien created under this Deed and the Mortgagor shall not sell, transfer, lease out, assign, dispose of or otherwise part with the Mortgaged Properties or any part thereof, or deal with the same or create or suffer any mortgage, charge, lien or other encumbrance on the Mortgaged Properties, without the prior written consent of the Mortgagee. Any mortgage/charge created hereafter by the Mortgagor on the Mortgaged Properties, in violation of this Deed, shall be subject to the present mortgage/charge created in favour of the Mortgagee under this Deed and the mortgage/charge created in terms of this Deed shall in all circumstances rank superior. 13(d) not create any mortgages, charges and encumbrances over the Mortgaged Properties in favour of any person except which are expressly permitted to be created under the Financing Documents and as are disclosed to the Secured Parties in writing;” 10(B). PROVISIONS RELATING TO FLOATING CHARGE (i)…. (ii)…. (iii) ....FURTHER THAT, the Mortgagor shall not create or suffer any lien on the Mortgaged Properties set out in paragraph 10(A)(iv) of this Schedule I or any part thereof except with the specific written approval of the Mortgagee. Any subsequent fixed or floating charge created by the Mortgagor, in violation of this Deed, shall under no circumstances rank superior to the charge created by the Mortgagor in favour of the Mortgagee under this Deed. Further, upon creation of any charge in violation of this Deed, the charge created under this Deed shall crystallize and shall have priority over any and all other charges created in violation of this Deed.” iv. In or about July 2018 Defendant No.2 and 4 represented to Yes Bank that they were desirous of repaying the said amounts due under the various credit facilities. In or about July 2018 Defendant No.2 and 4 represented to Yes Bank that they were desirous of repaying the said amounts due under the various credit facilities. It was basis this, that they sought the release of the said mortgaged properties and vide an email dated 27th July 2018 requested Yes Bank to issue a conditional No Objection Certificate (“NOC”) for release of the said mortgaged properties. v. In view of the aforesaid request, Yes Bank issued a conditional NOC to Defendant Nos. 2 and 4 which inter alia stated that Yes Bank had no objection to release the mortgage over the said Suit properties subject to due repayment of the said amounts which had been advanced by Yes Bank. The NOC specified that the same was valid upto 10th August 2018 and provided that it would stand revoked if the conditions mentioned therein were not complied with. vi. Since it is the Plaintiff’s case that the said amounts were not repaid and Defendant Nos. 2, 3 and REPPL committed defaults, the Yes Bank issued a loan recall notice dated 24th July 2019 as also a notice under Section 13(2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 (“SARFAESI Act”). vii. It is the Plaintiff’s case, that in or around August 2019, upon taking search in the office of the Registrar of Companies (“ROC”) the Plaintiff inter alia came across the two Deeds of Mortgages dated 30th July 2018 (“the Impugned Mortgages”) , executed by Defendant No. 2, 3 and REPPL whereby the said Defendants had mortgaged the suit properties in favour of Defendant No.1 for aggregate financial facilities of Two Thousand Crores stated to have been lent and advance by Defendant No.1 to Defendant No.2 and REPPL. viii. It is the Plaintiff’s case, that the Impugned Mortgages are contrary to the terms of the Plaintiff’s mortgage and thus the Impugned Mortgages are void and illegal, since Defendant No. 1 was aware/had notice of the Plaintiff’s Mortgage and was thus a subsequent transferee with notice hence, Defendant No. 1, would under Section 19(b) of the Transfer of Property Act,1882 (“TPA”) be equally bound by the terms of the Plaintiff’s mortgage. It was thus that the Plaintiff has filed the present Suit. ix. Yes Bank thereafter vide a Deed of Assignment dated 16th December 2022 assigned the Term Loan Facility Agreements to the Plaintiff. It was thus that the Plaintiff has filed the present Suit. ix. Yes Bank thereafter vide a Deed of Assignment dated 16th December 2022 assigned the Term Loan Facility Agreements to the Plaintiff. It is thus that the Plaintiff is the assignee of the said facilities. Similarly, Defendant No.1 also assigned the loans granted to REPPL, Defendant Nos. 2 and 3 to the Defendant No.5. Submissions made on behalf of the Plaintiff 3. Mr. Sancheti, Learned Senior Counsel appearing on behalf of the Plaintiff, at the outset submitted that the Impugned Mortgages had been entered into contrary to the terms of the Plaintiff’s Mortgage, and were thus void in the eyes of law or then voidable at the instance of the Plaintiff. In support of his contention that a mortgage created in violation of the terms of a prior and subsisting mortgage is infact no mortgage in the eyes of law, he placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Bikram Chatterji and Ors. v/s Union of India and Ors., (2019) 19 SCC 1 from which he pointed out the following: “84. With respect to the creation of mortgage deed in favour of bankers, etc., Noida Authority has submitted that every mortgage permission is granted by the Noida Authority to the individual company of Amrapali Group wherein a provision is made that Noida Authority has first charge/priority over all other charges including those created in favour of banks and financial institutions. The conditions on which permission to mortgage had been granted are as under: "This is to inform you that Noida shall have no objection for the purpose of financing his investment in the project on Group Housing Plot No. 001, Sector 119, Noida in favour of Nationalised Banks/Financial Institutions/HUDCO, New Delhi or to issue NOC to mortgage the said land to facilitate the housing loans of the final loans of the final purchasers subject to such terms and conditions as may be decided by the Authority at the time of granting the permission. This permission is being granted subject to the condition that in the mortgage deed, following clauses will be included: (i) That the financial institution in whose favour mortgage permission is required should be recognised by the Reserve Bank of India/National Housing Bank/HUDCO, New Delhi. This permission is being granted subject to the condition that in the mortgage deed, following clauses will be included: (i) That the financial institution in whose favour mortgage permission is required should be recognised by the Reserve Bank of India/National Housing Bank/HUDCO, New Delhi. Noida shall have the first charge towards the pending payment in respect of plot/flat allotted/lease rent/taxes or any other charges as informed or levied by the Authority on the plot and the banks/financial institutions/HUDCO, New Delhi, shall have the second charge on the dwelling units thus being financed. (ii) The mortgage permission shall be effective on making full payment of premium and up-to-date annual lease rent of group housing plot and after execution of sub-lease deed in favour of allottee of the dwelling unit and the allottee/sub-lessee shall be governed by the terms and conditions of allotment/lease deed of the plot to be executed and sub-lease deed to be executed in favour of the allottee sub-lessee. In the event of sale/transfer of flat, transfer charges at the rate prevailing at the time of transfer shall be payable to Noida. (iii) Each allottee/sub-lessee of the dwelling units shall have to intimate Noida of the creation of the mortgage in favour of bank/financial institutions/employer and the bank/financial institution/employee of the allottee shall also keep Noida informed about the dwelling units thus financed. (iv) It is further to inform you that in the case of cancellation of lease, Noida Authority will give 30 days' notice to nationalised banks/financial institutions/HUDCO, New Delhi prior to exercising its right of re-entry on the premises." 85. The permissions to mortgage containing the aforesaid clauses have been placed on record along with affidavit dated 22-11-2018. It is apparent from the second condition, subject to which permission to mortgage shall be effective on making full payment of the premium and up-to-date annual lease rent of group housing plot and after execution of the sub-lease deed in favour of the allottee of the dwelling unit, the allottee/sub-lessee shall be governed by the terms and conditions of allotment/lease deed of the plot to be executed and sub-lease deed to be executed in favour of the allottee/sub-lessee. Since at no point of time, payment of premium due had been made and up-to-date annual lease rent had not been paid, no mortgage could have been created in favour of the bank in view of specific Condition 2 extracted above. Since at no point of time, payment of premium due had been made and up-to-date annual lease rent had not been paid, no mortgage could have been created in favour of the bank in view of specific Condition 2 extracted above. Thus, when the conditional permission granted by the authority was furnished to the bank for obtaining the loan by promoters/builders, it was incumbent upon bank officials to ascertain from the authorities concerned that the premium due under the leases has been paid and lease rent due up to date has also been paid. In order to create a mortgage, it was necessary to obtain clear NOC in order to create effective mortgage deed. As that has not been done so far, no mortgage in the eye of the law has been created in favour of the bank. It was not open to the bankers to mortgage the land in view of the conditional permission to create mortgage, the mortgage created in violation of condition cannot be said to be effective in accordance with law as the land was owned by the authorities concerned and the lessees had right to mortgage only subject to fulfilment of conditions imposed by the lessor/authorities.” 4. Mr. Sancheti then in support of his contention pointed out the following, viz. i. Clause 6 (vii),[“(vii) not create or allow to exist any encumbrance or security over assets specifically charged to us without our prior written consent.”] of the Sanction letters dated 28th January 2016 and 31st March 2016 issued by Yes Bank to Defendant Nos. 2 and 3 specifically provided that Yes Bank did not permit Defendant Nos. 2 and 3 to create any encumbrance or security over assets specifically charged to Yes Bank i.e. the Suit Properties. ii. That terms of the sanction letters were also adopted in Facility Term Loan Agreements entered into thereafter. iii.That clauses 5, 13(d) and 10(B) of Schedule I of the Plaintiff’s Mortgage clearly barred Defendant Nos. 2 and 3 from selling, transferring, leasing out, assigning, disposing of or otherwise parting with the Suit Properties or any part thereof, as also from dealing with the same or creating or suffering any mortgage, charge, lien or other encumbrance on the Suit Properties, without the prior written consent of Yes Bank. 5. Mr. 2 and 3 from selling, transferring, leasing out, assigning, disposing of or otherwise parting with the Suit Properties or any part thereof, as also from dealing with the same or creating or suffering any mortgage, charge, lien or other encumbrance on the Suit Properties, without the prior written consent of Yes Bank. 5. Mr. Sancheti then submitted that the promoter of the Radius Group had infact specifically sought an NOC from Yes Bank vide an email dated 27th July 2018 and that the Plaintiff had thus on 31st July 2018 granted a provisional NOC which was valid only till 10th August 2018. He then took pains to point out that the Impugned Mortgages had infact been executed on 30th July 2018, which was even before the provisional NOC had been granted by Yes Bank. He submitted that Defendant Nos. 2 and 3 however did not repay the said outstanding amounts, either before or even after 10th August 2018. It was thus he submitted that the Impugned Mortgages were created fraudulently and in violation of the terms of the Plaintiff’s mortgage and hence the Impugned Mortgages were no mortgages in the eyes of the law as had been held by the Hon’ble Supreme Court in the case of Bikram Chatterji and Ors. 6. Mr. Sancheti also pointed out to clauses 2, 4 and 5 [“2. The borrower has to arrange for the conditional NOC for creation of exclusive charge in favour of DHFL w.r.t. the facilities availed against the security of Avenue 54 from the respective lenders; 4. The borrower w.r.t the existing facilities proposed to be taken over by DHFL has to comply with the following conditions- a) Procure and submit Original No Dues Certificate from the respective Lenders within 2 working days from date of closure of the respective facilities; b) Release of charge of the exfisting lenders within 2 working days from the date of closure of the loans availed; c) deposit the Original Title deeds with DHFL within 7 working days from the date of closure of respective loan accounts. 5. 5. The Borrower within 7 working days from the date of closure of all the facilities availed from YIES Bank Ltd against the Avenue 54, has to execute the conveyance deed for plot #1 with SBPL for acquisition of 100% land and rights on the project Avenue 54;”] of Sanction letter dated 27th July 2018 issued by Defendant No.1 to Defendant No.2 and REPPL and Clause 2.2 [“2.2 Conditions Precedent to Disbursement The Borrower doth hereby agrees, covenants and confirms that before disbursement of the said Loan or any part thereof, the Borrower shall: a) ensure creation/perfection of security for the Loan execute all necessary financing and security documents; b) represent and warrant that all the representations and warranties made by them on execution of these presents are complete in all respects and are accurate and true to the best of knowledge of the Borrower; c) ensure the compliance of all the terms and conditions of the said sanction letter and other security documents executed by the Borrower in favour of DHFL including the present agreement; d) obtain all necessary approvals and authorisations required for availing the said Loan and for undertaking their obligations as provided hereunder; and e) provide a certificate of its Auditors that the Borrower and/or its partners/associates is/are not in default to any Lender or any Bank/financial institution and/or in payment of any statutory dues.”] of Loan Agreements and dated 30th July 2018 entered between Defendant No.1 and REPPL, which contemplated that the conditional NOC was a condition precedent for sanctioning of the loan granted by Defendant No.1 to Defendant No.2 and REPPL. He submitted that the Impugned Mortgages also specifically recorded that there was no prior mortgage, charge or encumbrance on Suit properties which again was patently false. 7. Mr. Sancheti then submitted that the contention of Defendant Nos. 1 and 5 that Defendant No. 1 and/or Defendant No.5, would in terms of clause 5 of the Plaintiff’s Mortgage be a second charge holder, was entirely untenable in the facts of the present case. He submitted that the Defendants’ contention that the Plaintiff’s Mortgage contemplated a subsequent mortgage and also provided for the consequences of such subsequent mortgage having been entered into absent NOC was plainly contrary to a plain reading of the Plaintiff’s mortgage as a whole. He submitted that such an interpretation by Defendant Nos. He submitted that the Defendants’ contention that the Plaintiff’s Mortgage contemplated a subsequent mortgage and also provided for the consequences of such subsequent mortgage having been entered into absent NOC was plainly contrary to a plain reading of the Plaintiff’s mortgage as a whole. He submitted that such an interpretation by Defendant Nos. 1 and 5 completely overlooked and obliterated the first part of clause 5 which specifically recorded that “The Mortgaged Properties shall be specifically appropriated in the charge and mortgage and lien created under this Deed and the Mortgagor shall not sell, transfer, lease out, assign, dispose of or otherwise part with the Mortgaged Properties or any part thereof, or deal with the same or create or suffer any mortgage, charge, lien or other encumbrance on the Mortgaged Properties, without the prior written consent of the Mortgagee” as also clauses 13(d) and 10(B) of Schedule I of the Plaintiff’s Mortgage, in addition to, being contrary to clause 6(vii) of the sanction letter read with the Loan Agreement. 8. He then submitted that the later part of clause 5 of the Plaintiff’s Mortgage i.e. “Any mortgage/charge created hereafter by the Mortgagor on the Mortgaged Properties, in violation of this Deed, shall be subject to the present mortgage/charge created in favour of the Mortgagee under this Deed and the mortgage/charge created in terms of this Deed shall in all circumstances rank superior” only provides an additional consequence for any breach of clause 5. He submitted that on the occurrence of such breach it was the option of the Plaintiff to treat such subsequent mortgage/transaction as being void and the same was not an option given to a party, who has either occasioned the breach or who seeks to make capital of the breach to assert any alleged right claimed by virtue of the breach. Mr. Sancheti, then submitted that it was well settled that when interpretating a contract, an interpretation which does not make one part of the contract otiose or nugatory was always preferred. In support of his contention, he placed reliance upon the judgements of the Hon’ble Supreme Court in the case of Life Insurance Corporation of India and Anr. vs Dharam Vir Anand, (1998) 7 SCC 348 and Radha Sundar Datta vs Mohd. Jahadur Rahim & Ors, 1959 SCR 1309 . 9. Mr. In support of his contention, he placed reliance upon the judgements of the Hon’ble Supreme Court in the case of Life Insurance Corporation of India and Anr. vs Dharam Vir Anand, (1998) 7 SCC 348 and Radha Sundar Datta vs Mohd. Jahadur Rahim & Ors, 1959 SCR 1309 . 9. Mr. Sancheti then without prejudice to aforesaid placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Sahebzada Mohammad Kamgarh Shah vs Jagdish Chandra Deo Dhabal Deb & Others, (1960) 3 SCR 604 to submit that in the event clause 5 of the Plaintiff’s Mortgage was found to be irreconcilable, then the earlier part of clause 5 ought to be given effect to as a disposition once made cannot be taken away by a later clause. He submitted that it was well settled that a mortgage deed ought to be interpreted strictly against the grantor i.e. Defendant Nos. 2 and 3 in this case and in favour of the grantee i.e. the Plaintiff. 10. Mr. Sancheti, then submitted that, the defence that no prejudice would be caused to the Plaintiff by virtue of the Impugned Mortgages, was also entirely misconceived. He submitted that Defendant Nos.1 and 5 by claiming/asserting that a second charge had been created in their favour would infact gravely prejudice the rights of the Plaintiff as the first and exclusive charge holder. Sancheti, then submitted that, the defence that no prejudice would be caused to the Plaintiff by virtue of the Impugned Mortgages, was also entirely misconceived. He submitted that Defendant Nos.1 and 5 by claiming/asserting that a second charge had been created in their favour would infact gravely prejudice the rights of the Plaintiff as the first and exclusive charge holder. He then to amplify how the Plaintiff’s rights would be affected pointed out that a second mortgage would (i) affect the enforcement rights of the Plaintiff in view of Section 13(9), [(9) Subject to the provisions of the Insolvency and Bankruptcy Code, 2016, in the case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to sub-section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than sixty per cent in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors:] of the SARAFESI which provides that in cases where there exists more than one secured creditor, a secured creditor must represent atleast 60% of outstanding amount to exercise rights under Section 13(4) of SARFAESI Act (ii) under the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC) Defendant No.1 and/or Defendant No.5 and the Plaintiff would both be treated as secured financial creditors, however, since the alleged outstanding to Defendant No.1 and/or Defendant No.5 was almost thrice the debt of the Plaintiff, Defendant No.1 would have a superior voting right/say in the committee of creditors than the Plaintiff. Thus, the Plaintiff’s rights as exclusive first charge holder would be effectively obliterated. He then also pointed out that the Impugned Mortgages also incorrectly asserted that Suit properties were free from any lien, mortgage or encumbrances. It was thus that he submitted that there could be no manner of doubt that the Plaintiff would be gravely prejudiced if the Defendant No. 1 and/or Defendant No.5 was permitted to assert that it had a valid mortgage or a second charge in respect of the Suit Properties. 11. Mr. Sancheti placed reliance upon Section 31, [31. It was thus that he submitted that there could be no manner of doubt that the Plaintiff would be gravely prejudiced if the Defendant No. 1 and/or Defendant No.5 was permitted to assert that it had a valid mortgage or a second charge in respect of the Suit Properties. 11. Mr. Sancheti placed reliance upon Section 31, [31. When cancellation may be ordered.—(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.] of the Specific Relief Act,1963 (“SRA”) and judgment of Hon’ble Supreme Court, in Deccan Paper Mills Company Limited vs Regency Mahavir Properties, (2021) 4 SCC 786 to submit that in cases where a Plaintiff is able to establish that a written instrument is void or voidable and that a party had a reasonable apprehension that if such written instrument is left outstanding, the same would cause serious injury and the Court may on an application by the party who apprehends any such injury adjudge the written instrument to be void or voidable and order it to be cancelled. He thus submitted that since the Plaintiff had established that (i) the Impugned Mortgages were entered contrary to the terms of the Plaintiff’s Mortgage and (ii) the likely prejudice that would be caused to the Plaintiff if the same were not declared void and illegal, the Plaintiff was entitled to interim relief as prayed for. 12. Mr. Sancheti then submitted that the Plaintiff had approached National Company Law Tribunal, Mumbai (NCLT) and had filed an Interim Application (being I.A. No. 1367 of 2022) in CIRP Proceedings initiated against REPPL seeking similar reliefs. He submitted that though the Interim Application had been dismissed by the NCLT vide an Order dated 7th June 2021, the NCLT had, in the said Order specifically observed inter alia that the Impugned Mortgages were executed (i) without proper NOC from the Plaintiff or in violation of Plaintiff’s Mortgage and (ii) that remedy of the Plaintiff (who was the Applicant before the NCLT) was elsewhere. 13. 13. It was thus, in the above factual backdrop that he submitted that the Plaintiff had made out a strong case for the grant of interim relief, and that the balance of convenience was entirely in favour of the Plaintiff. He submitted that if interim relief was not granted, grave loss, harm and injury would be caused to the Plaintiff. It was thus that he pressed that the Interim Application be allowed in terms of prayer clauses (a) to (d). Submissions made on behalf of Defendant Nos. 1 and 5. 14. Mr. Tamboly Learned Counsel appearing on behalf of Defendant Nos. 1 and 5, at the outset submitted that Defendant Nos. 1 and 5 were submitting to an order in terms of prayer clause (a) of the Plaint, since they do not in any manner dispute the Plaintiff’s first charge. He thus submitted that the Plaintiff could therefore have no objection to the same and thus, the Interim Application ought to be dismissed on this ground alone. Mr. Tamboly then submitted that the Plaintiff had initially by virtue of prayer (b) of the Plaint, sought cancellation of Impugned Mortgage Deeds but had subsequently by way of an amendment deleted the said prayer. He thus submitted that therefore, the Plaint as it stood infact did not even contain a prayer for cancellation of the Impugned Mortgages. 15. Mr. Tamboly submitted that while the Plaintiff had while seeking reliefs under Section 31 of the SRA on the basis of the two-fold test, had completely overlooked the fact that the grant of any relief under Section 31 of the SRA was entirely discretionary. He then submitted that in the facts of the present case, where Defendant Nos. 1 and 5 had neither disputed nor denied the Plaintiff’s exclusive first charge, there was absolutely no occasion for this Court to exercise its discretion by granting any reliefs to the Plaintiff. Mr. Tamboly also invited my attention to Section 34[34. He then submitted that in the facts of the present case, where Defendant Nos. 1 and 5 had neither disputed nor denied the Plaintiff’s exclusive first charge, there was absolutely no occasion for this Court to exercise its discretion by granting any reliefs to the Plaintiff. Mr. Tamboly also invited my attention to Section 34[34. Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.] of SRA to submit that the declaratory reliefs which were sought in the captioned Suit were also discretionary reliefs and that the Plaintiff, in the facts of the present case had also failed to make out any case to grant any of such reliefs. 16. He then without prejudice to the fact that the prayer seeking cancelation of the Impugned Mortgages had been deleted, submitted that the Plaintiff had failed to make out a case as to how the Impugned Mortgages were void in any manner. Mr. Tamboly then invited my attention to Section 2(g), [(g) An agreement not enforceable by law is said to be void;] of Indian Contract Act, 1872 (“Contract Act”) and pointed out that a void agreement was defined as one which is not enforceable in law. He pointed out that as per clause 5 of the Plaintiff’s Mortgage, it could not be said that a subsequent mortgage was not enforceable in law since, firstly the said clause specifically contemplated a second mortgage and secondly Defendant Nos. 1 and 5 accepted that the Plaintiff had the first and exclusive right under the Plaintiff’s Mortgage. It was thus he submitted that the Impugned Mortgages could not be said to be void, since the same merely relegated Defendant No. 1 and/or Defendant No.5 to the status of a second charge holder and nothing more. 17. Mr. Tamboly then submitted that Section 48, [48. It was thus he submitted that the Impugned Mortgages could not be said to be void, since the same merely relegated Defendant No. 1 and/or Defendant No.5 to the status of a second charge holder and nothing more. 17. Mr. Tamboly then submitted that Section 48, [48. Priority of rights created by transfer.—Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.] of TPA infact recognized such subsequent rights and provided for the manner in which such rights are to be exercised. He submitted that the Plaintiff having failed to show that the Impugned Mortgages were void, was resultantly not entitled to any reliefs under Section 31 of SRA. He submitted that even the covenants contained in Impugned Mortgages qua Defendant No. 1 and/or Defendant No.5 having exclusive charge over suit property etc. were inserted on the basis that the NOC would be granted by Yes Bank, which it infact was. He submitted that since the NOC was however subsequently revoked, Defendant No.1 and/or Defendant No.5 was merely relegated to the position of a second charge holder. Basis this he submitted that since the Plaintiff’s Mortgage provided for a subsequent mortgage/charge being created the judgment of the Hon’ble Supreme Court in the case of Bikram Chatterji would be of no assistance to the Plaintiff. 18. Mr. Tamboly then submitted that judgment of the Hon’ble Supreme Court the case of Deccan Paper Mills Company set out three conditions for granting reliefs under Section 31 of SRA i.e. (i) that the instrument must be void or voidable; (ii) there must be a reasonable apprehension of serious injury that may be caused if such instrument is left outstanding and (iii) the Court must consider it fit to grant such relief. Mr. Tamboly thus submitted that since the Plaintiff had been unable to show that the Impugned Mortgages were void or that any injury would be caused to the Plaintiff, the question of granting any interim relief in favour of the Plaintiff did not arise. Mr. Tamboly thus submitted that since the Plaintiff had been unable to show that the Impugned Mortgages were void or that any injury would be caused to the Plaintiff, the question of granting any interim relief in favour of the Plaintiff did not arise. He submitted that the effect of a statutory provision, namely the consequence of Section 53(b)ii, [(b) the following debts which shall rank equally between and among the following:— (i) workmen’s dues for the period of twenty-four months preceding the liquidation commencement date; and (ii) debts owed to a secured creditor in the event such secured creditor has relinquished security in the manner set out in section 52] under the IBC cannot be termed as serious injury and hence in facts of the present case the Court must not apply any discretion to grant any reliefs. 19. Mr. Tamboly then submitted that the Plaintiff’s real grievance appeared to be that, by virtue of the Impugned Mortgages, the Plaintiff’s rights would rank inferior to that of Defendant No.1 and/or Defendant No.5, since the IBC does not establish a ranking system for secured creditors but instead treats all secured creditors on an equal footing. He thus submitted that the Plaintiff’s ultimate objective was to downgrade Defendant No.1 and/or Defendant No.5 to the status of an unsecured creditor. Mr. Tamboly submitted that such an approach could not be permitted, as the legal consequences flowing from a statute enacted by Parliament cannot serve as ground for invalidating a contract between two private parties. Furthermore, he argued that the Plaintiff’s alleged serious injury could not be used as justification for rendering the Impugned Mortgages as being void. 20. Mr. Tamboly then submitted that the Plaintiff had sought virtually the identical reliefs in the present Interim Application, as had been sought for by the Plaintiff before the NCLT, Mumbai in Interim Application No. 1367 of 2022. He pointed out that the said Interim Application was dismissed vide Order dated 7th August 2024 in which the NCLT held as follows: "38. The Applicant is mainly seeking to declare that the mortgage created in favour of Respondent No.2 is illegal. It is pertinent to notice that there is neither any prohibition nor any requirement under law to obtain permission of the mortgagee to create further mortgage. The restriction arises purely out of a covenant in the Mortgage Deed or contract between the mortgagor and mortgagee. It is pertinent to notice that there is neither any prohibition nor any requirement under law to obtain permission of the mortgagee to create further mortgage. The restriction arises purely out of a covenant in the Mortgage Deed or contract between the mortgagor and mortgagee. It is also pertinent to observe that the mortgage sought to be declared illegal was created much before the initiation of CIRP against the Corporate Debtor. We are, therefore, of the considered view that breach of a contract or covenant will not automatically invalidate the subsequent mortgage and the remedy for such alleged violation occurred before initiation of CIRP lies elsewhere and not before this Tribunal. Unless and until, the mortgage is set aside by an appropriate authority, the Respondent No. 2 will have to be treated as per the security documents produced before the RP, the Respondent No. 1 41. In the facts and circumstances of the case, we are of the view that this Tribunal cannot set aside a mortgage transaction created prior to the commencement of CIRP and that too on the ground that the mortgage was created in violation of the covenants contained in the earlier mortgage. The pendency of an application to declare the transaction illegal would not impact admission of the claim but such admission will be subject to the outcome. Further, when a financial debt and security interest are established based on the documents produced and in accordance with the Code, the Resolution Professional is justified in admitting the claim. We, therefore, do not find any merit in the contentions of the Applicant. 42. In the light of the foregoing discussion, we find that there is no merit in the application which, in our considered view, deserves to be dismissed. It is ordered accordingly. There shall, however, be no order as to costs." 21. Mr. Tamboly then further submitted that, despite the dismissal of IA No. 1367 of 2022 inter alia on the grounds that there was no legal bar or prohibition on obtaining a mortgagee’s permission to create a subsequent mortgage, and that the requirement for prior permission stemmed solely from a contractual agreement between the mortgagor and mortgagee, which was entered into before the initiation of CIRP, the Plaintiff had nonetheless filed an Appeal against the said order before the National Company Law Appellate Tribunal (NCLAT). He submitted that by doing so, the Plaintiff had effectively acknowledged that the NCLT had jurisdiction to adjudicate the issue concerning the validity and legality of the Impugned Mortgages. Mr. Tamboly further pointed out that, in the said Appeal, the Plaintiff had expressly admitted that the issue fell within the jurisdiction of the NCLT under Section 60(5) of the IBC, stating as follows: “c BECAUSE Ld. Adjudicating Authority has the jurisdiction under Section 60(5) of the Code to adjudicate upon the issue of validity and legality of the charge and claim of Respondent No.2.” “o. BECAUSE the Ld. Adjudicating Authority failed to appreciate that whether a person has a valid charge over an asset of the Corporate Debtor, or is actually a creditor of the Corporate Debtor, can be decided only by the Ld. Adjudicating Authority under Section 60 (5) of the Code and is the only efficacious remedy available to the Appellant… It is submitted that refusing to exercise jurisdiction to decide such questions of fact and laws amounts miscarriage of justice.” 22. Mr. Tamboly then invited my attention to Section 60(5), [60(5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of— (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code.] of IBC and submitted that any questions of priority or in relation to the insolvency and liquidation proceedings of a corporate debtor were to be exclusively decided by the NCLT. Basis this Mr. Tamboly submitted that, since the question of priority of the competing claims of the Plaintiff and Defendant No.1 and/or Defendant No.5 could be decided by NCLT only after the admission of insolvency proceedings this Court should not prejudge the said issue. 23. Mr. Sancheti, in rejoinder, submitted that the contention of Defendant Nos. Basis this Mr. Tamboly submitted that, since the question of priority of the competing claims of the Plaintiff and Defendant No.1 and/or Defendant No.5 could be decided by NCLT only after the admission of insolvency proceedings this Court should not prejudge the said issue. 23. Mr. Sancheti, in rejoinder, submitted that the contention of Defendant Nos. 1 and 5 that the NCLT had jurisdiction to adjudicate the issue in the present Suit and, therefore, this Court should refrain from doing so was misplaced. He submitted that the Plaintiff had filed the present Suit on 7th June 2022, which was before Defendant No. 5 had initiated proceedings before the NCLT. He submitted that the Plaintiff had subsequently amended the prayers in the Suit in view of the fact that the Petition filed under Section 7 of IBC initiated against REPPL was admitted before NCLT. He submitted that it was only this Court which would have the jurisdiction to decide the issue of the validity and legality of the Impugned Mortgages, as any jurisdictional bar would apply only prospectively, not retrospectively. 24. He then further submitted that the legal position regarding Section 60(5) of the IBC remained unsettled due to conflicting judgments from various High Courts, the NCLT, the NCLAT, and the Hon’ble Supreme Court. He submitted that it was thus, to obviate any such apprehended difficulties which could arise during the CIRP relating to the Defendants, that the Plaintiff had approached this Court, which undeniably had the requisite jurisdiction to determine whether the Impugned Mortgages were void and illegal. He clarified that the Plaintiff’s case was not merely about the priority of charges but rather about the very enforceability of the charge created in favour of Defendant No.1 and/or Defendant No.5. The issue of priority, he argued, would only arise if the charge in favour of Defendant No.1 and/or Defendant No.5 was legally enforceable, which itself was in dispute. 25. Mr. Sancheti then submitted that the contention that the deletion of prayer clause (c) rendered the Suit defective, was thoroughly misconceived. He pointed out that the amended prayers (b) and (d), when read together, sought a declaration that the Impugned Mortgages Deeds were void, illegal, and created no rights, title, or interest in favour of Defendant No. 1 and/or Defendant No.5. Sancheti then submitted that the contention that the deletion of prayer clause (c) rendered the Suit defective, was thoroughly misconceived. He pointed out that the amended prayers (b) and (d), when read together, sought a declaration that the Impugned Mortgages Deeds were void, illegal, and created no rights, title, or interest in favour of Defendant No. 1 and/or Defendant No.5. It was thus, he submitted that a separate prayer for cancellation of the Impugned Mortgages was unnecessary, if this Court declared the Impugned Mortgages were infact void. Mr. Sancheti then clarified that prayer clause (c) had been deleted because REPPL was undergoing CIRP and was not a party to the present suit and that the amended prayer clause (b) and prayer clause (d) were limited only to Defendant Nos. 2 and 3, so as to ensure that the relief sought for did not affect documents executed by REPPL. 26. Mr. Sancheti then submitted that interpretation of clause 5 of the Plaintiffs Mortgage by Defendant No. 1 and 5 was totally misconceived because (i) the NOC requirement was not complied with (ii)the Impugned Mortgages were executed on 30th July 2018, even before the conditional NOC was granted (iii) the first part of Clause 5 explicitly barred the creation of a subsequent mortgage, as evidenced by the phrase ‘in violation of’ at the beginning of the clause and (d) accepting Defendant Nos.1 and 5’s interpretation would render Clauses 13(d) and 10(B) of Schedule I of the Plaintiff’s Mortgage meaningless. He submitted that accepting Defendant Nos. 1 and 5’s reading of Clause 5, would effectively mean permitting the mortgagor to create a further mortgage, despite it being expressly barred under the Plaintiff’s Mortgage. He pointed out that such an interpretation, would amount to rewriting Clause 5, which could not be permitted. Based on this, he submitted that only the Plaintiff had the right to challenge the Impugned Mortgages and seek their declaration as void or voidable for violating the terms of the Plaintiff’s Mortgages. He further submitted that the latter part of Clause 5 upon which reliance was placed by Defendant Nos. 1 and 5 merely provided an option to the Plaintiff allowing the Plaintiff to either accept the Impugned Mortgages subject to its own charge or then challenge them altogether. He further submitted that the latter part of Clause 5 upon which reliance was placed by Defendant Nos. 1 and 5 merely provided an option to the Plaintiff allowing the Plaintiff to either accept the Impugned Mortgages subject to its own charge or then challenge them altogether. He reiterated that the said clause was not and could never be read to favour someone who had created a mortgage in the teeth of the Plaintiff’s Mortgage. 27. Mr. Sancheti then submitted that it was a well settled legal principle that a vendee cannot have a better title than the vendor. Similarly, he argued, that a grantee cannot have a better title than the grantor. He submitted that since Defendant Nos. 2 and 3 had agreed not to execute any mortgage without obtaining an NOC, this condition could be enforced both by the grantor and the grantee. He then further submitted that as per Section 31 of the SRA, the Plaintiff needed to demonstrate that the Impugned Mortgages were void or voidable and that their continued existence posed a reasonable apprehension of serious injury being caused to the Plaintiff. He then pointed out from the judgement of the Hon’ble Supreme Court in the case of in Deccan Paper Mills Company Limited, that the jurisdiction under Section 31 of the SRA is protective, not preventive. He thus clarified that such jurisdiction is exercised when a Plaintiff foresees a potential risk of serious injury and, therefore, instituted the captioned Suit in anticipation of such harm being caused to the Plaintiff and was thus a classic quia timet action. 28. Mr. Sancheti then submitted that Defendant Nos. 2 and 3 had clearly violated the terms of Plaintiff’s Mortgage and that Defendant No. 1 was fully aware of the Plaintiff’s Mortgage. It was thus he submitted that it was incumbent upon this Court to consider the conduct of Defendant Nos.2 and 3 while exercising its discretion based on sound and reasonable judicial principles. In support of his contention that the conduct of a party is relevant factor to be considered by Court while exercising discretion, he placed reliance upon judgment of Hon’ble Supreme Court in Zarina Siddiqui v/s A. Ramlingam, (2015) 1 SCC 705 . 29. Basis the above submissions he submitted that present application may be allowed. 30. In support of his contention that the conduct of a party is relevant factor to be considered by Court while exercising discretion, he placed reliance upon judgment of Hon’ble Supreme Court in Zarina Siddiqui v/s A. Ramlingam, (2015) 1 SCC 705 . 29. Basis the above submissions he submitted that present application may be allowed. 30. I have heard learned counsel for the parties, as also considered the case law upon which reliance has been placed and have no hesitation in holding that the Plaintiff has made out a case for the grant of interim reliefs. I say so for the following reasons, viz. A. Firstly, it is not in dispute that the Plaintiff’s Mortgage is prior in point of time to the Impugned Mortgages. Also, a plain reading of clause 13(d) of the Plaintiff’s Mortgage and clause 10(B) of Schedule I of the Plaintiff’s Mortgage make it abundantly clear that the Mortgagor i.e. Defendant Nos. 2 & 3 would not be entitled to not create any mortgages, charges and encumbrances over the Mortgaged Properties i.e. the Suit Properties or any part thereof except with specific written approval/permission (NOC) from Mortgagee i.e. the Plaintiff. Thus for any subsequent valid mortgage to have come into existence, the grant of an NOC by the Plaintiff was a mandatory prerequisite. However, it is an admitted position that the Impugned Mortgages were created on 30th July 2018 whereas the Plaintiff’s Conditional NOC was issued only on 31st July 2018. Thus the Impugned Mortgages were admittedly created before the provisional NOC was even issued. Also, and crucially Defendant No.1 had on 27th July 2018 issued a sanction letter to Defendant No.2 and REPPL, which was the same day on which the NOC was requested. Thus, in my view the Impugned Mortgages have been created in the teeth of the Plaintiff’s Mortgage and thus, the judgement of the Hon’ble Supreme Court in the case of Bikram Chatterjee would squarely apply. Reliance placed upon by Defendant Nos.1 and 5 on Section 48 of TPA would therefore be of no assistance, since the application of Section 48 of TPA presupposes that the subsequent transfer is valid. However, in present case the Impugned Mortgages are ex-facie in violation of Plaintiff’s Mortgage and are hence prima facie voidable at the instance of the Plaintiff. B. Second, the contention of Defendant Nos. However, in present case the Impugned Mortgages are ex-facie in violation of Plaintiff’s Mortgage and are hence prima facie voidable at the instance of the Plaintiff. B. Second, the contention of Defendant Nos. 1 and 5 that by virtue of clause 5 of the Plaintiff’s Mortgage, any subsequent mortgage without the Plaintiff’s NOC, would not be void but would merely be subservient to the Plaintiff’s Mortgage needs only to be stated to be rejected. Firstly, such an interpretation of clause 5 would infact do violence to a plain reading of the Plaintiff’s Mortgage as a whole and would be directly contrary to clause13(d) and 10(B) of the Schedule I of the Plaintiff’s Mortgage and render them otiose. Secondly, a reading of clause 5 as a whole infact makes it clear that where any mortgage has been created without the prior consent of the Plaintiff, then it is at the Plaintiff’s volition to treat the same as voidable. Clause 5 is not and cannot be construed to be a license to a party who has knowingly and willfully acted in breach of the terms of the Plaintiff’s Mortgage to make capital of the same or to derive any benefit from such breach. Also, it is crucial to note that even as per the contention of Defendant Nos. 1 and 5, clause 5 at the highest would give them a second charge, despite this in the Impugned Mortgages it is asserted that “Mortgaged Premises are mortgagor’s properties and that the same are free from any prior charges, mortgages, encumbrances or claims”. Thus in my view, the Plaintiff having established that the Impugned Mortgages have been created contrary to the terms of the Plaintiff’s Mortgage as also given the assertion of Defendant Nos.1 and 5 that the Suit properties are free from any prior charge, is entirely justified in apprehending that Defendant No.1 and/or Defendant No.5 would misuse and/or make use of the Impugned Mortgages to defeat the exclusive rights of the Plaintiff in any proceedings adopted under the IBC or under the of SARFAESI Act. Hence in my view the Plaintiff has made out a case under Section 31 of the Specific Relief Act demonstrating the serious injury that is likely to be caused to the Plaintiff if interim reliefs are not granted. Hence in my view the Plaintiff has made out a case under Section 31 of the Specific Relief Act demonstrating the serious injury that is likely to be caused to the Plaintiff if interim reliefs are not granted. I find that in the facts of the present case, the judgement of the Hon’ble Supreme Court in the case of Deccan Paper Mills Company Limited would squarely apply. C. Third, what is crucial to note and what Defendant Nos. 1 and 5 have in my view glossed over is the fact that, the Plaintiff’s Mortgage unequivocally sets out that the Plaintiff is the first and exclusive charge holder in respect of the Suit Properties. The Plaintiff has also demonstrated how the Plaintiff’s rights as exclusive charge holder under the provisions of the SARFAESI Act and the IBC would be entirely lost/defeated if Defendant No. 1 and/or Defendant No.5 were to be considered as second charge holders. To this there was no denial by Defendant Nos. 1 and 5 save and except to state that these rights would be lost by virtue of the law. However in my view, it would not be open to Defendant Nos. 1 and 5 to urge this, since the Impugned Mortgages has been created contrary to the Plaintiff’s Mortgage and are thus invalid in the eyes of law. Hence, to permit Defendant No. 1 and/or Defendant No.5 to assert any right under the Impugned Mortgages which would in any manner impinge upon the Plaintiff’s exclusive first charge would in my view be akin to putting a premium on dishonesty. D. Fourth, the contention that the Plaintiff have conceded/accepted that it would be the NCLT which would have jurisdiction to decide the issue of priority and validity of the Impugned Mortgages in view of Section 60(5) of the IBC, since the Plaintiff has filed an Appeal from the Order dated 7th August 2024 passed in Interim Application No. 1367 of 2022 in Company Petition No. 380 of 2021 in which the Plaintiff has inter alia stated that NCLT had jurisdiction under Section 60(5) of IBC to adjudicate upon issue of validity and legality of subsequent charge is plainly misconceived. Firstly, today there are no IBC proceedings admitted against Defendant Nos 2 and 3. Firstly, today there are no IBC proceedings admitted against Defendant Nos 2 and 3. Secondly, the issue in the present Suit is to the very legality of the Impugned Mortgages and also a deceleration that the same are void and illegal. Thirdly, any Application under Section 60(5) of the IBC would deal with the priority of charge and not the very legality of the Impugned Mortgage itself. Thus, these reliefs would fall squarely within the purview of the jurisdiction of this Court. 31. Hence, I pass the following Order. i. The Interim Application (L) No. 18666 of 2022 is allowed in terms of prayer clauses (a) and (d) which read thus, viz. a) Pending the present Suit, this Hon’ble Court be pleased to order and direct Defendant No.1 and Defendant No.5 to deposit Registered Deeds of Simple Mortgage dated 30th July 2018 (Exhibits ‘B’ and ‘C’) in respect of Suit Properties with Prothonotary and Senior Master of this Hon’ble Court; d) Pending the present Suit, this Hon’ble Court be pleased to order and direct injunction on Defendant No.1 and Defendant No.5 and their respective agents, servants, officers or any person or persons claiming by, through or under each or any one of them from in any manner acting on or relying upon the Deeds of Simple Mortgage dated 30th July 2018 (Exhibit ‘B’ and ‘C’) in respect of Suit Properties without obtaining consent of the Applicant; ii. It is made clear that this Order is passed only in facts of the present case and it shall be operative only against parties to the present Suit. iii. It is made clear that the observations made in this Order are prima facie and shall not affect the parties while dealing with the captioned Suit. AFTER PRONOUNCEMENT 32. At this stage, Mr. Tamboly requested that effect of this Order may be stayed for the period of two weeks from today and assured that the Petition filed under Section 7 of IBC against Defendant Nos. 2 and 3 would not be moved before the next date, so the purpose of the present Order is not defeated. This statement is accepted. The operation of this Order is thus stayed by two weeks from the date on which this order is uploaded.