1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CHAMBER SUMMONS NO.1727 OF 2007 IN EXECUTION APPLICATION NO.219 OF 2007 IN SUIT NO.87 OF 2006 Shri Swami Samarth Air Freight Pvt. Ltd. ..Plaintiff. Vs. Simon Brothers Pvt. Ltd. And others ..Defendants. And Model Co-op. Bank Ltd. ..Applicant. .... None for the Plaintiff. Mr. R.C. Dubey i/b M/s. Sanjeev Kanchan & Co. for the Applicant. .... CORAM : DR. D.Y. CHANDRACHUD, J. 18th August, 2009. P.C. : 1. The Chamber Summons has been taken out by the Model Co- operative Bank Limited which is the Applicant before the Court. The Applicant has granted/disbursed to the First Defendant a term loan of Rs. 12 lacs and a cash credit facility of Rs.44 lacs amounting in all to Rs.56 lacs on 9th May, 2002. Additional limits came to be sanctioned on 24th 2 September, 2004. The total limits for the financial facilities sanctioned amounted to Rs.1 Crore. In the affidavit in support of the Chamber Summons it has also been stated that the Fourth Defendant has availed of a term loan facility of Rs.9 lacs from the Applicant under a letter of sanction dated 13th August, 2004. The Applicant is a co-operative bank registered under the Maharashtra Co-operative Societies Act, 1960. The Defendants availed of the financial assistance extended by the Applicant. A warrant of attachment was levied on 18th July, 2007 at the behest of the decree holder and accordingly the Chamber Summons has been moved. According to the Applicant an amount of Rs.61.90 lacs was due from the First Defendant as on 31st May, 2007 while an amount of Rs.8.99 lacs was due from the Fourth Defendant as on 31st August, 2007 upon which future interest is payable. 2. The Defendants have according to the Applicant created a mortgage by a deposit of title deeds in respect of the two properties which form the subject matter of the Chamber Summons. One of the two properties consists of an office situated at A-102, Yellawa Smruthi S.R.A. Co- 3 operative Housing Society Ltd. while the other is flat No.306 situated in Building No.1, N.G. Co-operative Housing Society Limited. Copies of the memorandum evincing the creation of the equitable mortgage by deposit of title deeds in respect of the office premises A-102 and the residential flat, flat 306 are annexed at Exhibits A and A-2 to the Chamber Summons. 3. No reply has been filed to the Chamber Summons which was taken out on 21st September, 2007. The learned advocate appearing on behalf of the Applicant states that the decree holder has been served. No reply has been filed by the decree holder. Learned counsel seeks a clarification that the attachment that has been levied and any steps that are taken in the execution proceedings will be subject to the rights of the Applicant which has a pre existing claim in view of the equitable mortgage by deposit of title deeds. The Chamber Summons is accordingly disposed of with the direction that all the steps that are taken by the decree holder in the execution of the decree including the attachment shall be subject to the rights which enure to the benefit of the Applicant in view of the 4 creation of the equitable mortgage by deposit of title deeds in respect of the office premises and residential flat more particularly descried in prayer clause (b) of the Chamber Summons. The Chamber Summons is accordingly disposed of. *****