CW 6156/10 (1) In the High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R S.B. Civil Writ Petition No.6156/2010 SBBJ, Jodhpur Vs. PO, DRT, Jaipur & Ors. Date Of Order :: 03/05/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. G.K. Garg, for petitioner. Mr. K.J. Mehta, for respondent. Instant petition has been filed by the petitioner assailing two separate orders passed by Debts Recovery Tribunal (DRT) dt.19.3.2010 and 31.3.2010 in OA-89/09 Canara Bank Vs. Gayatri Industries & Ors. and so also the order dt.31.3.2010 passed in Chamber Appeal-10/2010. It has been alleged in the writ petition that the borrower availed housing loan of Rs.17.56 lacs from the petitioner-bank (SBBJ) while mortgaging plot-120-B situated at Kamla Nehru Nagar, 2nd Extension, Jodhpur On 2.3.06 and equitable mortgage was created by the borrower by depositing original title deeds of the property on 16.3.06. When his account became 'NPA', notice u/s. 13(2) of the Act,2002 came to be issued on 17.1.09 and since no reply/written objection was submitted as provided u/s. 3(A) of the Act, the petitioner-bank took symbolic possession u/s. 13(4) on 26.8.09 and also took physical possession of the property on 15.9.09. The CW 6156/10 (2) respondent-bank (Canara Bank), after account of the borrower became 'NPA', filed OA which was registered as OA-89/09 before the DRT, Jaipur impleading M/s. Gayatry Industries as party respondent and claiming the property being under their equitable mortgage, namely factory, land & building and other properties including the present disputed property plot- 120-B situated at Kamla Nehru Nagar, 2nd Extension, Jodhpur. It has not been disputed that petitioner-bank is not a party to the proceedings which were initiated at the behest of respondent-2 before the DRT, arises from OA-89/09. An order was passed by the DRT on the appeal being preferred by respondent-2 on 19.3.2010 calling upon the petitioner-bank to appear before it on 31.3.2010 and file affidavit relating to security interest. It appears that respondent-bank also filed a chamber appeal against the order of refusal to register the securitisation appeal, by the Registrar. On the above said appeal order was passed by the DRT on 31.3.2010 and despite the petitioner being applicant and without affording it an opportunity of hearing, the Presiding Officer decided the case of Canara Bank vide order dt.31.3.2010. Counsel for petitioner submits that CW 6156/10 (3) proceedings were initiated against the petitioner-bank before the DRT, Jaipur in OA-89/09, preferred by respondent-2 and so also in Chamber Appeal-10/2010 but the petitioner bank was not impleaded as party respondent and therefore the fact which remains for consideration is that the orders passed by the DRT dt.19.3.2010 & 31.3.2010 are in clear violation of principles of natural justice. Counsel for petitioner further submits that property in question was put to equitable mortgage on 16.3.06 and they hold the original title deeds of the property in question, as such they are within their rights to auction the same after the proceedings were initiated under the Act of 2002. Counsel for respondent-2, who has entered as caveator, submits that the property in question was put to equitable mortgage on 24.11.06 and they also hold the original title deeds and the respondent-bank was never made aware of the fact that the property in question is already under equitable mortgage with the SBBJ-petitioner and original title deeds being with the petitioner, he created equitable mortgage. Counsel further submits that Presiding Officer, DRT has resolved the dispute, raised CW 6156/10 (4) by respondent-bank in OA-89/09 and in the interest of justice called upon the petitioner-bank so that dispute could be resolved in regard to the property in question and there is no error being committed by the DRT, since the petitioner-bank, in the interest of justice, was called upon and so far as the order which has been passed on 31.3.2010 is concerned, it was passed only after hearing the parties and opportunity being afforded and therefore there appears to be no error being committed by the Tribunal in passing the order dt.31.3.2010. After hearing counsel for the parties and taking note of the order impugned, in the opinion of this Court, when the petitioner- bank was not party to the proceedings initiated by the respondent-bank, arises from OA-89/09, there was no justification for the Presiding Officer, Shri D.C. Thakur, DRT-III, Delhi Camp at DRT, Jaipur to pass such an order and that too when there being a equitable mortgage already exists. Apart from it, the question remains for consideration is when there is dispute between the two scheduled banks in regard to the property in question and both of them are claiming that original title deeds are in their possession and holding equitable mortgage of the property CW 6156/10 (5) in question as alleged which was created with the present petitioner on 16.3.06 whereas at the same time, the respondent-Canara Bank brought equitable mortgage on 24.11.06, it cannot be ruled out that either of one is at fault. But still this Court refrains from expressing any opinion on merits, since the matter is still sub-judice before the DRT, however taking consent from them, this Court considers it appropriate to set aside the orders dt.31.3.2010 respectively passed in OA- 89/09 & Chamber Appeal SA-10/2010 and hold that property in question bearing no.120-B, Kamla Nehru Nagar, 2nd Extension, Jodhpur may be put to public auction by the petitioner- bank and its sale proceeds may be kept in a separate interest bearing account and will be utilized by either bank in terms of the order being passed in the proceedings pending before the DRT in OA-89/09 and Chamber SA-10/2010. With the directions/observations referred to supra, the petition stands disposed of. (Ajay Rastogi),J. VS Shekhawat/- 6156cw10May3Fnl.doc