1 c.a.4413.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 4413 OF 2007 WITH CIVIL APPLICATION NO. 1712 OF 2007 IN FIRST APPEAL NO. 585 OF 2011 1. Sow Binadevi Ramniwas Agrawal, Age : 45 Years, Occup.: Household, R/o Central Hanuman, Latur, District Latur. ...APPLICANT. VERSUS 1. M/s Madanlal Sriniwas Biyani Died through his L.Rs. And others. ...RESPONDENTS. ... Shri.P.R.Patil,Advocate holding for Shri.S.G.Sangle, Advocate for Applicant. Shri.V.N.Upadhye Advocate for Respondent NO.1(2),2, 3 ,6, 7, 8 and 9 Shri.P.M.Shah,Senior Counsel Instructed by Shri.Dhanjay Deshpande, Advocate for Respondent Nos. 11 to 14. ... CORAM: R.M.BORDE, J. DATE : 5TH AUGUST, 2011. PER COURT : 1. Heard learned counsels appearing for the respective parties. 2. Present application is moved for claiming interim relief to the effect 2 c.a.4413.07 that during pendency and final disposal of the first appeal, respondents/original defendant Nos. 11 to 14 be restrained from creating third party interest by way of sale, lease, and mortgage in respect of the suit property i.e. agricultural lands bearing Survey Nos.112 and 114 situated at village Kopegaon Tq. and District Latur. 3. Affidavit-in-reply came to be presented by respondent Nos. 11 to 14 for opposing the application. In para No.3 of the affidavit-in-reply it is stated by respondent Nos. 11 to 14 (Original defendant Nos.11 to 14) that they are in possession of the suit property and they have developed the suit property for their enjoyment and are not at all intending to create third party interest in relation to the suit property. The apprehension expressed in the civil application is baseless. 4. It is also reflected from the proceeding that Civil Application No. 4413 of 2007, claim of interim relief was not seriously pressed at any point of time and except issuing‘rule’ no orders are passed in Civil Application. The application is moved by original plaintiff/appellant herein for taking into consideration the subsequent developments and praying for necessary action for committing breach of undertaking by respondent Nos. 11 to 14. It is stated in the application that respondents/original defendant Nos. 11 to 3 c.a.4413.07 14 are making haste in disposing of the property, in contravention of the undertaking given by them in affidavit-in-reply. The reply in the form of affidavit is presented to the application, wherein it is brought to the notice that the property Gut N0. 114, admeasuring 3 H 99 R has been mortgaged in favour of the State Bank of Hyderabad. The execution of mortgage is on three different occasions i.e. dated 26.11.2002, 18.12.2002 and 01.07.2007. It is reflected from the record that the date of execution of mortgage deed in favour of the bank, for borrowing the loan was prior to tendering an application by the applicant and even prior to presentation of affidavit in reply in this Court on 09.09.2008. This clearly shows that there is no violation or breach of undertaking given in the affidavit-in-reply. Even otherwise, learned counsel appearing for the applicant states on instructions that he is not pressing prayer clause [B] ( in Civil Appln. No.1712 of 2011) in relation to taking action for breach of undertaking against respondent Nos. 11 to 14 and urges that equitable order be passed considering the facts and circumstances of this case. 5. It is not disputed that respondent Nos. 11 to 14 have borrowed large sum from the Bank and the property in dispute i.e. Gut NO.114 is mortgaged with the bank. The respondents/original defendant Nos. 11 to 14 are in arrears for payment of dues to the bank. The bank has also 4 c.a.4413.07 initiated coercive action for recovery of the amount. Notice as contemplated under section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 also appears to have been issued on 28.02.2001 by the Bank. In view of these facts and circumstances, the bank cannot be restrained from recovering the dues by enforcing their right to realize the amount by alienating or disposing of the securities mortgaged/pledged in favour of the bank. 6. The learned Senior Counsel appearing for respondents i.e. original defendant Nos. 11 to 14 submits that even if properties are sold for discharging the liability, the interest of the original plaintiff/appellant herein can be taken care of. The plaintiff has claimed her entitlement in relation to the property to the extent of 20% i.e. 1/5th share. The ends of justice would be met if directions are issued to the respondents/original defendant Nos. 11 to 14 to deposit sale proceeds to the extent of 20% derived out of sale of the suit property i.e. Gut NO.114 admeasuring 3 H 99 R. 7. Learned counsel appearing for respondent Nos. 11 to 14 makes statement, on instructions, that 20% sale proceeds derived from the alienation of the suit property as referred to above, would be deposited in 5 c.a.4413.07 the court within four weeks from the date of such sale. He also undertakes that the sale proceeds shall be arrived or computed in such manner that in any eventually it shall not be below the rate prescribed in the ready reckoner maintained by State Government. The 20% sale proceeds which shall not be below rates prescribed in ready reckoner prescribed by State but can be in accordance with market rate which shall be more than rates prescribed by ready reckoner shall be deposited in this Court (whichever higher ) within four weeks from the date of such sale. The amount so deposited shall be invested in the fixed deposit initially for a period of three years and the fixed deposit receipt shall be renewed thereafter for a period until disposal of the appeal. 8. With these directions both the civil applications are disposed of. 9. The observations in the order are of prima facie in nature and these shall not be construed as touching the merits of controversy. Sd/- [ R.M.BORDE, J. ] MTK 6 c.a.4413.07