ORIENTAL BANK OF COMMERCE Vs. HARMINDER SINGH

JUDGEMENT

(1.) These two appeals, being FAO Nos. 303/2017 and 305/2017 are filed by the defendant no. 3 in the suit, Oriental Bank of Commerce, impugning the order dated 15.5.2017 by which the trial Court has allowed the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) filed by the respondent no. 1/plaintiff and directed that the respondent no. 1/plaintiff will not be dispossessed from the suit property during the pendency of the suit. The suit properties are bearing DDA Flat No. 781, ground floor, Pocket GH-13, G-17 Area category II (MIG), Paschim Vihar, New Delhi and SFS Flat No. 1104, third floor (with scooter garage), Pocket GH-13, G-17, Area Paschim Vihar, New Delhi. For the sake of convenience I am referring to the facts in the case of FAO No. 303/2017 for the disposal of both the appeals. The limited issue in the appeals is that the impugned orders are to be sustained but with the modification that dispossession of the respondent no.1/plaintiff is stayed not till the disposal of the suit but dispossession is not to take place without due process of law. The modification is sought because of entitlement of the appellant/defendant no.3 to get the issue as regards validity of mortgage in its favor by the tribunal/authority/court under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the RDDBFI Act') and/or the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act'). In view of the limited issue required to be decided there is no need to grant adjustment as prayed by the counsel for the respondent no.1/plaintiff.

(2.) The facts of the case are that respondent no. 1/plaintiff pleaded that he had purchased the suit property by means of registered documents dated 21.8.2012 from the respondent no.2/defendant no. 1. Originally both, defendant nos. 1 and 2, were owners of the suit property but respondent no.3/defendant no. 2 had released his share in the suit property in favour of respondent no.2/defendant no. 1 vide Release Deed dated 27.7.2012. Respondent no. 1/plaintiff pleaded that he had possession of all the original title documents of the suit property after purchase of the property on 21.8.2012. It was further pleaded in the plaint that it was only in the month of April 2013 that the respondent no. 1/plaintiff came to know that the suit property had been mortgaged with the appellant/defendant no. 3. It was further pleaded that the documents in favour of the respondent no. 1/plaintiff were valid documents and there was no valid mortgage in favour of the appellant/defendant no.3 and therefore it made no difference to the rights of the respondent no.1/plaintiff that mortgage of the suit property with the appellant/defendant no.3 is of 27.3.2012 i.e prior to 21.8.2012.

(3.) The case of the appellant/defendant no. 3 was that the suit property was already mortgaged with the appellant/Bank on 27.3.2012 i.e prior to the execution of the title documents in favour of respondent no. 1/plaintiff on 21.8.2012. Accordingly, it was stated that rights of the respondent no. 1/plaintiff will be secondary to the prior mortgagee rights of the appellant/defendant no. 3 and that action may be taken by the appellant/defendant no. 3 under the SARFAESI Act.