ICICI BANK Vs. PEACOCK MEDIA LIMITED & ORS

JUDGEMENT

(1.) By means of present writ petition, petitioner has sought the following reliefs:

(2.) Brief facts of the care are that plaintiffrespondent no.2 herein filed a suit seeking a decree for recovery of Rs. 49,03,000/- against the defendantrespondent no.1 alongwith pendentilite and future interest at the rate of 18% per annum. Plaintiff further sought a decree of permanent prohibitory injunction restraining the defendants from interfering in peaceful possession and enjoyment over the suit property. Further, prayer was made to declare the sale deeds dated 02.07.2010, executed by respondent no.2 in favour of respondent no.1, as null and void. During the pendency of suit, petitioner moved an application under Order 1 Rule 10 r/w Sec. 151 of C.P.C. being paper no.39A/1 stating therein that the respondent no.1 purchased the property from the plaintiffrespondent no.2 through registered sale deeds dated 2.7.2010 and simultaneously mortgaged the purchased property with the applicant bank. The defendant no.1 soon thereafter started to default on repayment of loan as a result proceedings under the SARFAESI Act were initiated against him for realization of its dues and symbolic possession was also taken on the spot. Applicant also affixed notice of taking possession on the disputed premises (mortgaged property). Plaintiff-respondent no.2 challenged the said proceedings before the Debt Recovery Tribunal, Lucknow by way of SA No.466 of 2013. Against the application moved by the applicantpetitioner under Order 1 Rule 10 C.P.C., plaintiffrespondent no.2 filed his objections stating therein that the petitioner-applicant is not a mortgagee; suit property is not mortgaged with the bank; the plaintiff is the sole and exclusive owner in possession of the entire property of suit and his name continues to be duly recorded in the revenue records and has never been deleted; the bank has not taken symbolic or physical possession; and, that the presence of the applicant bank is not at all necessary for effectively and completely deciding and adjudicating upon and settling the question involved in the present case. The trial court, by impugned order dated 28.08.2017, dismissed the application on the ground that third party is not necessary and proper party to decide the issues involved in the case and that the application filed by the third party is not maintainable.

(3.) Learned Senior Counsel appearing for the plaintiff-respondent no.2 would submit that although he has filed a detailed counter affidavit in the writ petition but the writ petition is not maintainable inasmuch as the petitioner has an efficacious statutory remedy of revision under Section 115 of C.P.C.