1 D.B. WRIT MISC. APPLICATION NO. 67/2008 Date : 16.07.2008 HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. C. M. TOTLA, J. Mr. J.K. Chanda for the applicant. - - - - - This application has been submitted by applicant State Bank of India stating therein that this Court while disposing off the D.B. Civil Special Appeal No. 328/2005 arising out of Civil Writ Petition No. 1355/05 pertaining to proceedings for taking possession of the alleged mortgaged property E-281(B & C) Marudhar Industrial Area, Phase II, Basni Jodhpur, ordered as under :- “Counsel for the parties after making submissions for some time greed that it would be in the fitness of things to relegate the parties to the Debt Recovery Tribunal for adjudication of the dispute. Counsel also agreed that till decision by the Tribunal, the mortgaged properties of the appellant may not be sold. We accordingly without going into merit of the case dispose of the appeal as well as the writ petition with liberty to the parties to work out their rights before the Tribunal. The Tribunal will be free to decide the matter on merit without being influenced by the orders of this Court, in accordance with law.” According to applicant Bank, the Bank had already filed an 2 Original Application before the Debt Recovery Tribunal, Jaipur Bench for recovery of dues on 01.12.2004 impleading the respondent as the party under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. It is worthwhile to mention that this fact is also taken note of by Division Bench of this Court while disposing off D.B. Civil Special Appeal No. 328/05 and this Court recorded as under :- “It transpired in course of hearing that in the mean time the State Bank of India filed application before the Debt Recovery Tribunal, Jaipur Bench for recovery of dues on 1st December, 2004 impleading the appellants besides M/s Padmavati Arts 'N' Craft.” It is submitted by learned counsel for the applicant State Bank of India that respondent M/s Kikan Industries has not raised any dispute before the Debt Recovery Tribunal as per provisions of Act of 2002 and according to the applicant Bank, only respondent no.1 alone can raise dispute then it can approach the Tribunal under Section 17 against the recovery proceedings. It is submitted that Debt Recovery Tribunal is not proceedings with the recovery proceedings initiated by the Bank on the ground that Division Bench of this Court passed the order that parties are relegated to Debt Recovery Tribunal for adjudication of the dispute and till then, mortgaged property cannot be sold. According to learned counsel for the applicant Bank, since the petitioner Kikan Industries did not raise any dispute, therefore, the Bank will not be able to sell the mortgaged property nor it can adjudicate 3 its right for recovery of due amount from the borrower and guarantors in the proceeding initiated by them as back as in the year 2004. In view of the above reasons, by way of this application, applicant is seeking permission to sell the mortgaged property in the light of the order dated 12.12.2005. It is clear from the order passed by Division Bench of this Court dated 12.12.05 that during course of hearing arguments, learned counsel for the parties agreed that it would be in the fitness of things to relegate the parties to Debt Recovery Tribunal for adjudication of the dispute and counsels further agreed that till decision by Debt Recovery Tribunal, mortgaged property may not be sold. The Division Bench nowhere stayed the proceedings of Debt Recovery Tribunal in the matter. The petition filed by State Bank of India for recovery of dues as back as in the year 2004. Learned counsel for the applicant is right in saying that dispute is about claim of the Bank denied by the borrower and guarantors and therefore, that is subject matter in the proceeding initiated before the Debt Recovery Tribunal, Jaipur Bench. It is clear from the above order that Division Bench of this Court has not stayed that recovery proceedings before Debt Recovery Tribunal, Jaipur Bench pending on application submitted by SBI and at the request of parties, stayed the sale of mortgage property only and the Debt Recovery Tribunal is supposed to proceed with the proceedings initiated by State Bank of India referred to above to adjudicate the dispute/or claim of Bank. The order of Division Bench is amply clear and stayed only sale of mortgage property till 4 decision by the Tribunal, therefore, we need not pass any further order on application filed by the applicant. The application is disposed of accordingly. (C. M. TOTLA), J. (PRAKASH TATIA), J. bjsh