1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1654 OF 2009 The General Manager, Mahanagar Co-op. Bank Ltd. ... Appellant Vs. Shri Ramgirish Triveni Singh & Ors. Respondents Mr. B.G.Vaidya, Advocate,for the appellant. Mr. M.P.Tiwari, Advocate,for the respondents. CORAM: J.H.BHATIA,J. DATE 21st November,2009. P.C. 1. Heard the learned Counsel for the parties. 2. The present appeal is filed by the original defendant No.1  Mahanagar Co-op. Bank Ltd., against the decree passed by the City Civil Court in S.C. Suit No.457 of 2005 by order dated 14.7.2008. The plaintiff/respondent No.1 claimed that he had purchased the suit house i.e. Room No. 759 in Building No.26, Ganesh Krupa Housing Society Ltd., Pantnagar, Ghatkopar (E), Mumbai 400 075 from the defendant No.2/respondent NO.2 on 14.5.2004 and 2 sale deed was registered on 17.5.2004. According to him, he had paid the consideration amount by taking loan of Rs.4,50,000/- from HDFC with permission from Pant Nagar Ganesh Krupa Co- operative Housing Society Limited. The defendant No.1 sought to attach and seize the said house on the ground that the defendant no.2 had mortgaged the said house with the Bank as a security for the loan taken by one Ramdas Devram Andhale, proprietor of M/s. Darpan Tours and Travels on 25.9.1998. It was an equitable mortgage by production of documents. According to the plaintiff, the property was never mortgaged with the defendant No. 1 Bank. The plaintiff filed the suit seeking perpetual injunction restraining the defendant NO.1 from disturbing the possession of the plaintiff over the suit premises. The defendant No.1 filed an affidavit of one Karunasagar c. Sanil, in reply to an application for temporary injunction. The title of that reply was Reply of Defendant No.1 cum Written Statement . However, the learned Judge 3 in the Roznama dated 27.6.2006 observed that this was only an affidavit in reply and it could not be treated as a written statement. It appears that thereafter, the plaintiff examined witnesses and the plaintiff was also cross-examined on behalf of the defendant No.1 Bank, but the defendant NO.1 Bank did not produce any oral or documentary evidence in support of its contention. In the result, the suit came to be decreed in favour of the plaintiff and the perpetual injunction was granted. Hence, the appeal by the defendant No. 1 Bank. 3. The learned Counsel for the appellant points out that as per the Roznama, permission was obtained from the Court to file written statement and for that purpose, even the Court had condoned the delay in filing the written statement. Cost was also imposed and accordingly reply-cum-written statement was filed. According to him, on 27.6.2006 when the learned Judge observed that it could not be treated as a reply-cum-written 4 statement, none of the parties was present before the Court and, therefore, the advocate for the appellant did not get an opportunity to explain that it was a written statement. As noted earlier, the said reply purports to be reply-cum-written statement of defendant no.1, though strictly it is not in the form of written statement wherein the defendant is expected to answer the pleadings in the plaint parawise. However, a plea was taken by the defendant No.1 in the written statement that the property was mortgaged by equitable mortgage dated 25.9.1998. The original share certificate of the suit premises was deposited by the defendant No.2 with the Bank. It also contended that in view of the equitable mortgage, as security of loan taken by Ramdas Andhale, the defendant nO.1 was entitled to take action and accordingly, notice under Section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Act,2002 was issued to the borrower as well as the surety. As the property is situated in 5 Mumbai, an equitable mortgage by deposit of title deeds is permissible. If the property was really mortgaged with the Bank prior to the sale of the same in favour of the plaintiff, the Bank could take action and once the action is taken under the Securitization Act, the Civil Court has no jurisdiction. But if the Bank fails to prove that it was mortgaged with it, the Civil Court would be justified in entertaining the suit as the plaintiff claims that he had purchased the property under a registered sale deed of 2004. On behalf of the defendant No.1 Bank, the suit was not properly defended, no evidence was produced and it appears from the impugned judgment that no document was produced by the Bank to prove its contentions about mortgage. As public money is involved, it is necessary that fair opportunity be given to the Bank to defend the suit. Therefore, in the interest of justice, the matter needs to be remanded to the trial Court for giving an opportunity to the appellant/defendant no.1 to lead 6 necessary evidence in support of its claim. 4. Therefore, the Appeal is allowed and the impugned judgment is set aside subject to payment of costs of Rs.10,000/- (Rupees ten thousand only) by the appellant to the plaintiff/respondent No.1 within four weeks from this day. The suit is remanded back to the trial Court for giving reasonable opportunity to the defendant no.1 to lead necessary evidence in respect of its claim. If the defendant No.1 intends, it may file written statement, besides the reply-cum-written statement, within two weeks after appearance before the trial Court. 5. The parties shall appear before the trial Court on 5th January, 2010. The trial Court shall expedite the hearing and dispose of the same afresh, preferably within six months. 6. The interim stay which was in force pending 7 the suit shall continue to be in force till the suit is decided. (J.H.BHATIA,J.)