1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3330 OF 2010 Krishnakatn R Lotia : Petitioner versus Dena Bank and ors. : Respondents. Mr.Mayur Khandeparkar and Ms.Sapna Rachure i/by M/s.T N Tripathi & Co. for the Petitioner. Mr. Anup Khaitan i/by M/s.Anup Khaitan & Co. for Respondent No. 1. CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ DATED:- May 03, 2010 P.C. 1 Heard counsel for the Parties. 2 Rule. Rule made returnable forthwith by consent. Mr.Anup Khaitan waives notice for Respondent No.1. 3 By this writ petition, the Petitioner takes exception to the order dated 15th April 2010 passed by the Debts Recovery Appellate Tribunal, Mumbai in Misc. Application No.----- of 2010 in Appeal No.92 of 2010. The order which is impugned in this writ petition reads thus :- “The matter is moved by way of praecipe today. Mr.Rajesh Nagory for the Appellant 2 and Mr. I A Nasikwala for Respondent No.1 Bank are present. By consent, stand over for admission/hearing to 25/5/10, after praecipe. Interim order granted by the Tribunal shall hold good till 20/4/10 only.” 4 The Petitioner claims to be third party. According to the Petitioner, in terms of agreement dated 14th December 1999 the Petitioner has acquired interest in the suit property, since the owner did not fulfil his commitments, the Petitioner has already filed suit for specific performance on 7th August 2004 in relation to the property in question. The Respondent-Bank, however, has initiated action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in relation to the suit property. 5 Being aggrieved by the said action the Petitioner preferred an application before the Presiding Officer, DRT-III, Mumbai amongst others contending that the Petitioner was in possession of the original title document in respect of the suit property and considering the agreement executed in favour of the Petitioner dated 14th December 1999, pursuant to which the Petitioner has already parted with the earnest amount of Rs.One lakhs, the bank cannot proceed against the Petitioner. The Tribunal, however, opined that since the declaration is already given under the Recovery of Debts Due to Banks & Financial Institutions Act, it was not open to the Tribunal to consider the same question at the instance of the third party. Essentially on this basis, the application preferred by the Petitioner under Section 17 of the Act 3 has been rejected. 6 Against this decision, the Petitioner has carried the matter in appeal before the Debts Recovery Appellate Tribunal being Appeal No.92 of 2010. As is noticed from the impugned order the hearing of the appeal for admission has been deferred till 25th May 2010 by consent of both the parties. Indeed, the order also records that interim order granted by the Tribunal shall continue till 20th April 2010, which protection shall continue till the date of hearing of the Appeal. 7 Before this Court it is fairly accepted by both the sides that the Tribunal has not passed any interim order in favour of the Petitioner. For that reason the Petitioner insisted for interim protection before the Appellate Tribunal during pendency of the appeal. 8 In our opinion, considering the grounds urged before us it would be appropriate to grant limited protection to the Petitioner till the appeal is taken up for admission by the Appellate Tribunal on 25th May 2010 or on other such date as may be convenient to the Appellate Tribunal. We are not recording the contentions of both the sides urged before us as expressing any opinion in that regard may affect the merits of the contentions which may arise for consideration before the Appellate Tribunal. We may only highlight the contention of the Petitioner that the original title document in respect of the suit property is in possession of the Petitioner and that the Petitioner has paid the earnest amount 4 pursuant to the agreement executed in favour of the Petitioner dated 14th December 1999 in relation to the suit property. 9 All these aspects and other aspects raised on behalf of Respondent-Bank will have to be examined and tested in appeal proceedings. 10 We express no opinion in that regard, but observe that since hearing of the appeal was deferred by consent of the parties, it would be appropriate that the status quo as of today with regard to the suit property be observed by the parties till the decision of the said appeal or till the protection is required to be modified by the Appellate Tribunal for the reasons as may be available at the later point of time. 11 Needless to observe that all steps taken by the Respondent-Bank including negotiation to sell the suit property will be subject to the out-come of the said appeal. 12 We hope and trust that the Appellate Tribunal will expedite the hearing of the said appeal in the peculiar facts of the present case. 13 Petition is disposed of on the above terms. (R.M. SAVANT, J) (A.M.KHANWILKAR, J)