High Court of Punjab and HaryanaCR/1314/2014allowed

Indian Overseas Bank v. Rama Singhal And Another

2020-06-05Mr. Justice Mahabir Singh Sindhu35 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Date of Decision: June 5th, 2020.

Indian Overseas Bank /..Petitioner Vs.

Rama Singhal and another /..Respondents

CORAM:

HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU.

8.8 Present:8 Mr. C.S. Pasricha, Advocate for the petitioner. Mr. Vikas Bahl, Sr. Advocate with Mr. Nikhil Sabharwal, Advocate for the respondents. 8.8

Present petition is filed under Article 227 of the Constitution against the impugned order dated 15.01.2014 (P1) passed by Ld. Civil Judge (Jr. Divn.) Panchkula, for short 'Civil Judge', whereby an application of the Petitioner8Defendant8 Indian Overseas Bank, for short "Bank" instituted under Order VII Rule 11 of the Code of Civil Procedure 1908 (for short CPC) was dismissed.

Respondents 8Plaintiffs (wife & husband, respectively) filed Civil Suit No.277dated 17.08.2013 (CS No.83 of 2014) for mandatory injunction directing the Bank to release original documents of title pertaining to House No.1800, Sector 15, Panchkula, for short 'House', as well as of Industrial Plot no.398, Industrial Area, Phase-I, Panchkula, for short 'Industrial Plot', as detailed in the head note of the plaint.

Respondent No.18Rama Singhal is the owner of House; whereas the Industrial Plot stated to be owned by both the respondents, jointly.

In the year 2002, respondent No.1 availed housing loan from ICICI Bank, but later on, the loan was taken over by the petitioner8 Bank. In September 2003, respondent No.2 being the sole proprietor of firm M/s Nanu Mal Naresh Kumar availed financial assistance of Cash Credit Limit (C.C.Limit) for Rs.20 lacs from the Bank on the basis of equitable mortgage of Industrial Plot; which was later on enhanced from time to time.

In September 2004, both the respondents availed financial assistance from the Bank as "liquirent loan" of Rs.31.50 lacs against the future rental income of the Industrial Plot. In the year 2006, respondent No.2 being the sole proprietor of firm M/s Navdeep Bioceuticals, Baddi, District Solan, H.P.,for short M/s Navdeep Bio. availed financial assistance of Rs. 07(Seven) Crores i.e. (2 Crores Term Loan +5 Crores Cash Credit Limit(CCL) from the Bank. Due to non8payment of debt, the loan account of M/s Navneet Bio. was classified as Non8Performing Asset (NPA) and that resulted into the initiation of proceedings for enforcement of security interest by the Bank under Section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'Act of 2002').

Applications under Section 14 of the Act were also filed before District Magistrate, Panchkula on two occasions for seeking possession of the House as well as the Industrial Plot, but were declined while observing that both the properties were not legally mortgaged with the Bank. Aggrieved against the action of the Bank, on 09.11.2011, the respondents alongwith M/s Navdeep Bio. filed Securitization Application (SA No.

Chandigarh, for short 'Tribunal', which was dismissed vide order dated 21.03.2013.

The Bank also filed an application under Section 14 before the District Magistrate, Solan, for taking possession of M/s Navdeep Bio. being situated in Baddi, but the same was dismissed on 28.03.2012,due to the reason that proceedings were pending before the Tribunal. Aggrieved against the above order, the Bank filed CWP No. 3052 of 20128F before the High Court of Himachal Pradesh, which was allowed and matter was remitted back to District Magistrate, for passing fresh order. 3.

Respondents challenged the order of HP High Court by way of SLP (C) No.35889 of 2012, wherein, the parties were directed to maintain status quo regarding possession by Hon'ble Supreme Court vide order dated 07.12.2012.

It is the case of the respondents that all three loan accounts i.e. (i) Housing loan, (ii) Cash Credit Limit of M/s Nanu Mal Naresh Kumar ; and (iii) liquirent loan, were fully settled, but the Bank did not return the original title deeds of House as well as of Industrial Plot on the pretext that both these properties were mortgaged as additional securities for the loan account of M/s Navdeep Bio. Respondents have also alleged that both these properties were never mortgaged with the Bank for the purpose of availing financial assistance on behalf of M/s Navdeep Bio., but the Bank officials forged the documents and have shown the same as equitable mortgage in a totally illegal and fraudulent manner, thus the Bank is bound to return the original title deeds.

Upon receiving notice from trial court, the Bank filed an application under Order VII Rule 11 of the CPC for rejection of the plaint

with the averments that Section 34 of Act of 2002 as well as Section 18 of the Recovery of Debts Due to Banks and Financial Institutions, Act of 1993 for short 'the Act of 1993' bar the jurisdiction of civil Court, thus suit is not maintainable. Also averred that in view of the order dated 21.03.2013, passed in SA No. 193 of 2011 as well as the pendency of OA No.115 of 2012 ,the suit for mandatory injunction is not maintainable and plaint deserves to be rejected. Copies of order dated 21.03.2013 as well as of interim stay dated 16.04.2012 passed by the Tribunal in OA No.115 of 2012 were attached with the application for rejection of plaint.

Further submitted that point of equitable mortgage regarding both the properties has already been considered and decided by the Tribunal against the respondents, thus it cannot be re8opened by the civil court under the garb of present suit for mandatory injunction. Again submitted that initial sanction of Rs. 07 Crores in favour of M/s Navdeep Bio. as well as subsequent enhancement letters were annexed with the SA No 193 of 2011 by the respondents themselves and all these documents clearly reveal the creation of charge in favour of the Bank regarding both the properties, thus the factum of mortgage of the House as well as Industrial Plot is duly acknowledged.

In response to the application under Order VII Rule 11 CPC, respondents filed reply raising the objections to the effect that District Magistrate, Panchkula declined the application under Section 14 of the Act of 2002 twice on the ground that there is no valid mortgage regarding both the properties in favour of the Bank, thus, Civil Court is duly competent to decide the disputed point of mortgage in the present suit. The proceedings before Tribunal are summary in nature, therefore, the jurisdiction of the Civil Court can not be completely ousted for

deciding the complicated issue involved in the present case. Also submitted that order dated 21.03.2013 passed by learned Tribunal is under challenge in an appeal before Debt Recovery Appellate Tribunal, Delhi, (for short 'DRAT') and the appeal is most likely to succeed. Further submitted that jurisdiction of the civil Court under the Act of 2002 is barred only if the matter could be lawfully adjudicated by Tribunal, but not the complicated question of law and facts involved in the present case; therefore, Civil Court is having the jurisdiction to decide the point of mortgage.

Pendency of OA No. 115 of 2012 as well as dismissal of SA No.193 of 2011 on 21.03.2013 were duly admitted by the respondents. 7.

Bank filed rejoinder while submitting that both the properties were mortgaged as secured assets; District Magistrate is not the competent authority to adjudicate the question of mortgage and the same has already been decided by the Tribunal on 21.03.2013, therefore, jurisdiction of the Civil Court is specifically barred. Also submitted that respondents themselves submitted to the jurisdiction of the Tribunal while filing SA No.193 of 2011, but remained unsuccessful, thus, they are estopped from filing the present suit and reopening the matter. Specifically submitted that there is neither any misrepresentation; nor concealment, or misuse of the official position by any Bank official while granting loan to M/s Navdeep Bio. Further submitted that respondents were afforded full opportunity before the Tribunal during the course of proceedings resulting from S. A. No. 193 of 2011, but they could not succeed and the order dated 21.03.2013 has attained finality.

After hearing both sides, learned civil judge dismissed the application of the Bank vide impugned order dated 15.01.2014 while observing as under:8 "The plaintiffs have asserted fraud and misrepresentation and thus whether the title deeds of the suit property were given to the defendant for the purpose of being used as collateral security or not, is a matter of evidence. Furthermore, when fraud/misrepresentation is pleaded by any party then the Civil Courts certainly have the jurisdiction to decide the matter after taking evidence on behalf of both the parties." 9.

Hence the present petition.

10.

Ld. counsel for the Bank contended that in view of the provisions of Sections 34 & 35 of the act of 2002; as well as sections 17,18 and 19 of the act of 1993, the jurisdiction of civil court is specifically barred, therefore, plaint was liable to be rejected; hence, impugned order is not legally sustainable;

Point of mortgage regarding both the properties in question has already been decided twice by the Tribunal in S.A. No.193 of 2011 dismissed on 21.03.2013 ; O.A. No.115 of 2012(renumbered8OA No.1970 of 2017) allowed on 07.12.2017 and both these orders have become final; Sanction Letter dated 04.09.2006 clearly establishes that both the properties were duly shown in the list of collateral securities for financial assistance of Rs.07( Seven) Crores granted to M/s Navdeep Bio and all the terms and conditions of above sanction letter were duly accepted by the respondents vide their consent letter dated 05.09.2006. Also contended that subsequently, loan amount of Rs. Seven Crores was enhanced from time to time vide sanction letters dated 25.02.2008, 03.07.2008, 05.03.2009 and 13.09.2010,which are very much available on record of the

Civil Court. Again contended that respondent No.82,vide letter dated 09.01.2009 specifically admitted that both the properties were mortgaged with the Bank and all these documents have already been considered by the Tribunal while deciding SA No.193 of 2011 as well as OA No.1970 of 2017.

Next contended that under the garb of present suit, respondents are trying to re8open the point of mortgage which has already been adjudicated by the Tribunal twice, being fully competent to decide the same and that has attained finality; thus, there is no cause of action at all for the respondents to file the suit for mandatory injunction; Lastly contended that in pursuance of the order dated 07.12.2017 passed in OA No. 1970 of 2017, both the properties have already been sold out during auction proceedings for lawful consideration. 11.

On the other hand ld. Sr. counsel for the respondents submitted that impugned order is perfectly legal and valid, thus, does not require any interference by this Court while exercising jurisdiction under Article 227 of the Constitution. Further submitted that undisputedly, all three loan accounts i.e. Housing loan, CCL of M/s Nanu Mal Naresh Kumar and Liquirent Loan have already been settled by the respondents and neither House; nor Industrial Plot were ever mortgaged in favour of the Bank for securing the financial assistance on behalf of M/s Navdeep Bio, therefore, the point of mortgage is very much necessary to be decided by the civil court.

Again submitted that Bank officials committed fraud while fabricating the documents to show the alleged mortgage of both these properties and as such civil suit is the only appropriate remedy to decide the complicated issue of fraud involved in the present case; both the orders

passed by the Tribunal are the result of summary proceedings, thus, the same would not oust the jurisdiction of civil court in any manner. Also submitted that Bank vide its letter dated 05.09.2006 certified that Housing loan account of respondent No.1 has been fully adjusted and there is nothing outstanding. Still further, Estate Manager, Housing Board, Haryana vide letter dated 01.06.2012 intimated to respondent No.81 that as per their record, House is free from all encumbrances.

Further submitted that vide letter dated 13.12.2008,the Bank had written to the Estate Officer, HUDA stating that there is nothing due against the Industrial Plot.

Again submitted that applications filed u/s 14 of the Act of 2002 for seeking possession of both the properties were dismissed twice i.e. on 17.04.2012 & 06.01.2013 by the D.M. Panchkula, holding that there was no valid mortgage in respect of these properties and the orders remained unchallenged at the instance of the Bank.

Also submitted that respondents have filed criminal complaint against the former Branch Manager as well as Chief Manager of the Bank and both the officers were summoned by Judicial Magistrate Ist Class, Panchkula, for short 'JMIC' under sections 409,420,467,468,471,500,506 and 1208B IPC vide order dated 04.02.2015 and even an application u/s 245(2) Cr.P.C for discharge of both the accused was declined on 20.02.2018 and even criminal revision against the above has also been dismissed by the Additional Sessions Judge Panchkula on 20.10.2018. Further submitted that although Division Bench of this Court dismissed CWP No.28914 of 2017 on 16.10.2018, but without recording any adverse findings on the point of mortgage, granted liberty to the

respondents for availing alternative remedy in accordance with law, thus, suit for mandatory injunction is the right course adopted in the present case.

12.

Learned counsel for the Bank also made supplementary submissions that letter dated 13.12.2008 was never issued by the Bank and this fact has already been considered by the Tribunal and decided against the respondents. Even in pursuance of the order dated 05.03.2020 passed by this Court, an affidavit dated 06.03.2020 of Chief Manager is filed and in paras 3 and 4 thereof, specifically submitted that no such letter was ever issued by the Bank. Further submitted that mere pendency of criminal comlaint against ex8officers of the Bank will not confer jurisdiction upon civil court to entertain the civil suit. Also submitted that order dated 03.11.2015 passed by District Magistrate, Panchkula, while rejecting the application of the Bank under Section 14 of the Act of 2002, was challenged in CWP No.11523 of 2016 and the same was disposed off by this court on 15.12.2017, observing that issue regarding mortgage has already been decided by the Tribunal, thus, the District Magistrate would be free to decide the application without being prejudiced by the earlier order.

13.

Heard learned counsel for the parties and perused the record. 14.

Before proceeding in the matter, it would be appropriate to reproduce the relevant text of Section 9 CPC as well as Section 34 and 35 of the Act of 2002 and Section 17, 18 and 19 of the Act of 1993, respectively, which are as under:

"Section!9. Courts to try all civil suits unless barred . The Courts shall (subject to the provisions herein contained)

have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation 1''''''''''''''''''''.

Explanation II

Sections 34&35 of the Act of 2002.

Section 34:

Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).

Section 35:

The provisions of this Act to override other laws:!!The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.

Sections 17,18 and 19 of the Act of 1993.

17. Jurisdiction, powers and authority of Tribunals.-(1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act.

18.

Bar of Jurisdiction.-On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under articles 226 and

227 of the Constitution) in relation to the matters specified in section 17.

19.

Application to the Tribunal.-(1) Where a bank or a financial institution has to recover any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction- (a) xxx xxx xxx (aa) the defendant, or each of the defendants where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or (c) the cause of action, wholly or in part, arises. (2) xxx xxx xxx

(3) Every application under sub!section (1) or sub!section (2)shall be in such form, and shall be accompanied by such documents or other evidence and by such fee as may be prescribed.

(4) to (7) xxx xxx xxx

(8) A defendant in an application may, in addition to his right of pleading a set!off under sub!section (6), set up, by way of counter!claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter!claim is in the nature of a claim for damages or not.

(9) A counter!claim under sub!section (8) shall have the same effect as a cross!suit so as to enable the Tribunal to pass a final order on the same application, both on the original claim and on the counter!claim."

From perusal of Section 9, CPC it is clearly discernable that subject to the provisions contained therein, the civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is (i) either expressly, (ii) or impliedly barred. Section 34 of the Act of 2002 expressly bars the jurisdiction of Civil Court(s) and inter8alia lays down that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Act of 1993.

Section 35 talks about the over8riding effect of the provisions of Act of 2002 over other laws.

Still further, Section 18 of the Act of 1993 also bars the jurisdiction of civil Courts and inter8alia envisages that no Court shall have any jurisdiction in relation to the matters specified in Section 17. Sub8 section (8) of Section 19 of the Act (ibid) says that in case an application is filed by the Bank or financial institution for recovery of any debt from any person , then defendant (s) have a remedy of counter8claim. Noteworthy that remedy of appeal is also provided under both the Acts vide section 18 and 20 respectively.

Since both the statutes were enacted for specific purpose(s) and complete mechanism has been provided there under to the aggrieved person for redressal of the grievance(s),if any; thus the Tribunal is created as a substitute to the civil court for adjudication of the matter falling within its (Tribunal's) ambit.

Moreover, law is well settled by the Hon'ble Supreme Court regarding the bar of jurisdiction of civil court in such matter(s) and reference can be made to

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(2014) 1 SCC 479;

para 24 thereof reads as under:8 "

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Records of the case reveal that in response to an application dated 28.06.2006, M/s Navdeep Bio. was granted the credit facilities of Rs.07(Seven Crores) vide sanction letter dated 04.09.2006 and relevant part of the same is extracted as under:8

#! #"$%#" Periodicity of Interest Charged.

Sl.

No Nature of Facility Limit (Rs.) Margin (Rs.) Interest/ Commission Etc.

A) Cash Credit against stocks and book8debts not older than 90 days.

200,00,000/8 Rs.

Two Crore only.

25% Stocks 50% book debts 10.50% (BPLR81%) Monthly.

Monthly repayment8 60 monthly instalments after an initial holiday period of 12 months from first release.

Terms and conditions:!

PRIMARY SECURITY-Cash Credit Limit will be primarily B) Term loan for part financing new Pharma Unit with Project Costs Rs.889.78 lacs 500,00,000/8 Rs.

Five Crore Only.

Land 50 % building 30% Plant and mach.25% BPLR81% Presently 10.50% secured by Hypothecation of Stocks in use for manufacture of

pharmaceuticals in all forms and Book Debts of the firm. Term Loan will be primarily secured by mortgage of land and building and hypothecation of plant and machinery of the Baddi Unit. COLLATERAL SECURITY!(1) Equitable mortgage of Industrial Building at 398, Industrial Area Phase! 1, Panchkula in the joint names of Sh.Virender Singhal and Mrs.Rama Singhal valued at Rs.188.00 lacs as per valuation report dtd. 05.07.2006!Residual Value of the property.

(2) Equitable Mortgage of H.No. 1800, Sector 15, Panchkula in the name of Mrs.Rama Singhal valued at Rs.44.00 lacs as per valuation report dtd. 05.07.2006.

(3) Equitable Mortgage of residential Plot No. 690, Sector 16, Panchkula in the name of Smt. Rama Singhal valued at Rs.90.00 lacs as per valuation dtd. 05.07.2006. The properties at 1 and 2 are already mortgaged to the Bank for previous Credit Facilities and additional two properties as detailed above are taken as collateral/ prime security. Guarantors:

1. Sd/!Naresh Gupta

2. Sd/!S.B. Singhal.

(1815) xxx xxx xxx 16.

Existing Housing Loan of Mrs. Rama Singhal will be closed before availing these facilities and the security will be fully available as collateral for these credit facilities. (17824) xxx xxx xxx."

The above sanction letter was duly accepted by M/s Navdeep Bio. as well as both the respondents and other guarantors, vide their written consent dated 05.09.2006 in the following manner:8 "To The Chief Manager, Indian Overseas Bank, Sector!9,Panchkula.

Subject: Sanction of Credit Facilities!A/c Navdeep Bioceuticals.

Dear Sir,

We refer to your sanction letter dated 04.09.2006 advising terms and conditions for the credit facilities of Rs.700 lacs to the above firm. We accept all the terms and conditions as per sanction and also undertake/ confirm the following:! 1 to 7 xxx xxx xxx 8.

Existing Housing Loan of Mrs.Rama Singhal will be closed before availing these facilities and the security will be fully available as collateral for these credit facilities. 9 to 16 xxx xxx xxx.

Yours faithfully, For Navdeep Bioceuticals GUARANTORS Sd! (Virender Singhal) Sd/!Mrs.Rama Singhal Proprietor Sd/!Mr.Sandeep B. Singhal Sd/!Mr.Naresh Gupta."

The initial credit facilities of Rs.07(Seven) Crores granted to M/s Navdeep Bio was enhanced from time to time vide sanctions letters dated 25.02.2008, 03.07.2008, 05.03.2009 and 13.09.2010. All the above enhancement letters reveal, both the respondents as guarantors and House in question as well as Industrial Plot were shown as collateral securities. For reference, relevant parts of the subsequent sanction letters for enhancement of loan are extracted as under:8 Sanction letter dated 25.02.2008.

SECURITIES "PRIME: M/s Navdeep Bioceuticals 1.

Hypothecation of paid stocks of RM/WIP/FG and book debts. 2.

Mortgage of Land and building and hypothecation of Plaint and machinery of the unit.

COLLATERAL:!

Other details Nature of Security Location Value Reason for change in value E.M.

of Factory Land & Hill Top Industrial Estate, Jharmajri, EPIP, Phase I, Vill.

Building Bhatoli Kalan, Distt,.

Solan, HP owned by Sh. Virender Singhal EM of Residentia l Plot.

690, Sector 16, Panchkula owned by Smt. Rama Singhal !

Industrial Building Plot No.398, Industrial Area!I, Panchkula, Owned by Smt. Rama Singhal.

Residentia l house # 1800, Sector 15, Panchkula Owned by Smt. Rama Singhal.

Plot 564, Mamta Vihar Baltana owned by Naresh Gupta !

Sanction dated: 03.07.2008.

SECURITIES PRIME: M/s Navdeep Bioceuticals 1.

Hypothecation of paid stocks of RM/WIP/FG and book debts. 2.

Mortgage of Land and building and hypothecation of Plaint and machinery of the unit.

COLLATERAL:!

Nature of Security & Location Value Rs.

in lacs.

EM of Residential Plot at 690, Sector 16, Panchkula.

!!!

Residual value of factory land and building located at Hill Top Industrial Estate, Jharmajri, EPIP, Phase I, Vill. Bhatoli Kalan, Distt,. Solan, HP owned by Sh.

Virender Singhal !!

Residual value of Industrial Building at Plot No.398, Industrial Area!I, Panchkula, Owned by Smt. Rama Singhal already mortgaged for the limits sanctioned to Nanu Mal Naresh Kumar (Exposure 150 lacs) !!

Residential House No.1800, Sector 15, Panchkula Owned by Smt. Rama Singhal.

Plot 564, Mamta Vihar Baltana owned by Naresh Gupta !!

Sanction dated: 05.03.2009.

SECURITIES "PRIME: M/s Navdeep Bioceuticals

Hypothecation of paid stocks of RM/WIP/FG and book debts. 2.

Mortgage of Land and building and hypothecation of Plaint and machinery of the unit.

COLLATERAL:!

Nature of Security & location Value Rs.

in lacs Residual value of factory land and building located at Hill Top Industrial Estate, Jharmajri, EPIP, Phase I, Vill.

Bhatoli Kalan, Distt,. Solan, HP owned by Sh. Virender Singhal !

Industrial Shed No.398, Industrial Area!I, Panchkula owned by Smt. Rama Singhal and Virender Singhal !!

Residential House no.1800, Sector 15, Panchkula owned by Smt. Rama Singhal.

Sanction dated: 13.09.2010 COLLATERAL:

Nature of Security/ location Valuation report date and valued by:

1. Equitable mortgage of Factory Land & Building located at Hill Top Industrial Estate, Jharmajri, EPIP, Phase I, Vill.

Bhatoli Kalan, Distt,. Solan, HP owned by Sh. Virender Singhal. Residual value Rs.2.45 crores.

Equitable mortgage of industrial building located at Plot No.398, Industrial Area!I, Panchkula, owned by Smt. Rama Singhal, forced sale value of Rs.2.51 crores.

3.Residential House no.1800, Sector 15, Panchkula owned by Smt. Rama Singhal.

Fair market value Rs.0.44 crores/Forced Sale value Rs.0.41 Crore.

!!!

PRIME SECURITY:

1. Hypothecation of paid stocks of RM/WIP/FG and book debts.

2. Mortgage of Land and building and hypothecation of plant and machinery of the unit."

Perusal of all the successive enhancement letters reproduced here in above, clearly reveal that both the properties were shown in the list of collaterals while availing credit facilities for M/s Navdeep Bio. 16.

Concededly, on 28.02.2011, the loan account of M/s Navdeep Bio. was classified as NPA and that resulted into the initiation of proceedings under the Act of 2002 by the Bank. Aggrieved against the action of the Bank, the respondents as well as M/s Navdeep Bio. filed S.A. No.193 of 2011, but the same was dismissed by the Tribunal vide order dated 21.03.2013, while observing as under:8 "22. Apart from above, the applicants have also raised objections that the applicants No.2 and 3 are only guarantors and no property was mortgaged by them. It is contended that the applicants No.2 and 3 are owners of Plot No. 398, Industrial Area, Phase!I, Panchkula and deposited the original title deed of the property with the respondent bank on 20.10.2003 as security for the cash credit limit of Rs.20.00 lacs.

It is stated that substantial portion of this property was/ is on rent since May 2004 and applicants No.2 and 3 are receiving regular rent from the tenants. The respondent bank also sanctioned liquirent loan against the future receipt of rent and the above said property was mortgaged against this liquirent loan also in September 2004. It is argued that both cash credit and liquirent loan were repaid in full in December 2008 and no dues are outstanding in these loans. It is submitted that the Estate Officer, Haryana Urban Development Authority, Panchkula vide his letter dated 08.03.2013 has certified that Plot No. 398, Industrial Area, Phase!1, Panchkula is no more under the encumbrances of respondent bank, hence no action can be taken against the said property.

It is also stated that the applicants are only guarantors not mortgagors and the respondent bank cannot take action against the guarantors before exhausting the remedy against borrower.

23.

In reply it is stated that there is admission by applicants No.2 and 3 regarding creation of mortgage in pleadings as evident from para no. 72 and 74 of the application and also relied upon documents regarding request by the applicants for enhancement of working capital limit to Rs.600.00 lacs (Ann. B.18 filed along with IA No., 138/12) and sanction letters dated 25.02.2008 (Ann. A!12), 03.07.2008 (Ann. A.14), 05.03.2009 (Ann. A.16) and 13.09.2010 (Ann. A.19) Ld. Counsel for the respondent bank relied upon judgment of Hon'ble Supreme Court in the case of S. Ranganathan Vs. Ramaswami and Yogeshwar Dayal (AIR 1992 SC 1740).

24.

The views expressed by the District Magistrate, Panchkula with regard to creation of mortgage are observations to disallow application for taking physical possession. Since the creation of mortgage has been admitted by the applicants in pleadings as well as in sanction letters dated 25.02.2008 (Ann. A!12), 03.07.2008 (Ann. A.14), 05.03.2009 (Ann. A.16) and 13.09.2010 (Ann. A.19) wherein creation of charge of all secured assets have been mentioned, this material is enough for dismissing challenge to mortgage. I am not impressed with pleas raised by the applicants No.2 and 3 that blank documents were signed as applicants remained silent for more than 3 years from first sanction and enjoyed credit facilities for business purposes. Accordingly this plea of the applicants is also rejected having no merit.

25.

For the aforesaid reasons, the SA stand dismissed. However, this order will be subject to outcome of SLP No. 35889/2012 pending for disposal before Hon'ble Apex Court as observed by the Hon'ble DRAT vide order dated 30.01.2013." It is relevant to mention here that initially, the status quo regarding possession was granted by Hon'ble Supreme Court on 07.12.2012, but ultimately, the SLP No.35889/2012 was dismissed as infructuous vide order dated 13.03.2015.

17.

Aggrieved against the order dated 21.03.2013 passed in SA No. 193 of 2011, an appeal was preferred by the respondents before the DRAT but the same was dismissed vide order dated 12.08.2014 on account of non8compliance of the condition of pre8deposit as per Section 18 of the Act. The order of DRAT was challenged through CWP No. 2984 of 2015, which was disposed off by this court vide order dated 23.02.2015 observing that in case the respondents deposit an amount of Rs.2 crores before DRAT on or before 31.05.2015, their appeal be heard on merits. It was further clarified that if there is a failure in deposit of above amount, the appeal shall stand dismissed without further orders. Liberty was also granted to the respondents to take recourse to the remedy of One Time Settlement Scheme (OTS) within two weeks.

Since the respondents failed in making the pre8 deposit of Rs.2 crores in terms of the above order of this Court, therefore, their appeal could not revive and consequently, the order dated 21.03.2013 passed by the Tribunal became final and during the course of hearing this fact was not controverted on behalf of the respondents.

18.

It would be relevant to mention here that in terms of the order dated 23.02.2015 of this court, respondents made an unsuccessful attempt for OTS and the letter dated 17.03.2015 rejecting their offer by the Bank reads as under :8 "We refer to your OTS offer dated 02.03.2015/ 03.03.2015 for an amount of Rs.4.85 crores and inform that your OTS proposal is not acceptable to us. We also advised that your earlier proposals for Rs.7.28 crores even in 2011 and for Rs.7.5 crores given in 2012 have already been rejected by the Bank."

The above rejection of OTS was challenged at the instance of the respondents in CWP No.14088 of 2015, but again could not succeed and the observations made by Division Bench while dismissing the writ petition on 16.07.2017 indicate that respondents are enjoying the litigation as luxury :8 "A perusal of the impugned communication shows that earlier proposal for Rs.7.28 crores given in the year 2011 and later for Rs.7.5 crores given in the year 2012, were rejected by the Bank obviously for the reasons that it was not adequate. Surprisingly, instead of increasing the amount for settlement, the petitioners reduced the amount by almost Rs.3 crores, while offer to pay a sum of Rs.4.85 crores."

19.

In the interregnum, Bank filed Original Application (OA) No.115 of 2012 on 06.03.2012(renumbered O.A.1670 of 2017) for recovery of an amount of Rs.13,66,32,787/8 along with future interest against M/s Navdeep Bio as well as the respondents before the Tribunal . It transpires that an application under Section 14 of the Act of 2002 was also filed by the Bank before the District Magistrate, but the same was rejected vide order dated 20.07.2015, observing that House in question as well as Industrial Plot were not mortgaged with the Bank and even review application against this order was also dismissed on 03.11.2015 . Aggrieved against both the orders of District Magistrate, Bank filed CWP No.11523 of 2016; but during pendency of the same, O.A. No. 1970 of 2017 filed at the instance of the Bank was allowed by the Tribunal vide order dated 07.12.2017. Consequently, CWP No. 11523 of 2016 was disposed off by the Division Bench, on 15.12.2017, observing that since issue regarding property being mortgaged has already been decided by the Tribunal, therefore, District Magistrate shall be free to

decide the application filed by the Bank under Section 14 of the Act of 2002 without being prejudiced by the earlier order. 20.

This Court has also gone through the order dated 07.12.2017 passed by the Tribunal and bare glance thereof, clearly reveals that plea against creating the mortgage of both the properties was raised at the instance of respondents as well as M/s Navdeep Bio., which was duly considered by the Tribunal while deciding OA No. 1970 of 2017, but answered in favour of the Bank and against the respondents. Relevant part of para No. 15 of the order dated 07.12.2017 reads as under:8 "The bank has proved the documents noted above and the defendants have not disputed the admissibility of the documents. The stand of the defendants is that though they were guarantors to the loan transaction which is also admitted but according to the defendants the properties plot bearing No. 398, Industrial Area, Phase I, Panchkula and House No.

1800, Sector 15, Panchkula were released by the bank vide their letter dated 13.12.2008 Mark DW!2/5. This letter is disputed by the counsel for the bank and according to him no such letter by the bank. Bare perusal of contents of Mark D!2/5, the same cannot come to the rescue of the defendants.

According to the defendants these two properties were mortgaged to the applicant bank in the other various accounts which have since been cleared in 2008. From the perusal of Ex.DW!2/1 dated 06.09.2006, the bank has certified that Housing Finance No. 350300003 in the name of Smt. Ram Singhal wife of Shri Virender Singhal, resident of House No. 1800, Sector 15, Panchkula has been fully adjusted. This Ex.DW!2/1 does not talk about the release of the property and thus the objection of the defendants counsel that the property was released is rejected.

Upon reading the Ex.DW!2/2 purportedly issued by the Estate Manager, Housing Board, Haryana, Panchkula addressed to defendant No.3 has no relevance as against the

claim of the bank and this documents does not prove that the title deed of House No. 1800, Sector 15, Panchkula was released by the Bank.

Further perusal of Ex.DW2/3 and Ex.DW2/4 which is purportedly written by Smt. Rama Singhal defendant No.3 to Estate Manager, Haryana Housing Board, Panchkula seeking clarification of two queries and reply by the Haryana Housing Board, Panchkula, to defendant No.3 would not ever prove that the applicant is not holding title deeds as equitable mortgage as collateral security with it. Thus, the reliance by the defendants on these two documents also rejected. Mark DW!2/6,Mark DW!2/7 and mark DW!2/8 are orders of the District Magistrate wherein I do not find any adjudication of mortgage by the learned District Magistrate more particularly before the learned District Magistrate, the Bank filed an application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for taking physical possession of the secured assets.

Mark DW!2/9 is also an order dated 03.11.2005 has no bearing to the present OA.

Further perusal of Ex.DW!2/10 and DW!2/11 which are letters exchanged by defendant No.2 and Estate Officer also do not find merit in relation to the objection that these properties title deeds are not in possession of the bank. More particularly in view of the sanction letters duly exhibited and proved by the Bank. The objection raised by the defendants that sanction letters exhibited by the Bank contain signatures only on the last page and not on other except Ex.A!71 where the sanction advice has not been signed by additional pages have been signed which counsel for the defendants state have been done after making use of blank pages kept signed by the bank. Admittedly the defendants continued to avail loan facilities and also got the same enhanced from time to time and guarantee deeds are also not disputed by them. This Tribunal does not find any merits in the objection raised by the defendants.

From the perusal of copy of the SA No.193 of 2011 which has been filed by the bank along with the written submission (same has not been objected to by the defendants rather relied upon the same), the defendants have not raised any such objection as raised in the present written statement. No such objections or pleadings have been raised by the defendants that these two properties were not mortgaged in the account of defendant No.1 which is the sole proprietorship concern of defendant no.2 herein and defendant Nos. 2 and 3 happen to be husband and wife. In para 65 of SA, the mortgage has been admitted in relation to Plot No. 398, Industrial Area, Phase!1, Panchkula. For the purpose of clarification para 65 is reproduced as under:! "65. INDUSTRIAL PLOT: In as much as the Plot bearing No. 398, Phase!

I, Industrial Area, Panchkula (HR) is in occupation of tenants since the year 2004, whereof the rent against the same were also been duly received by the bank against 'liquirent facilities' granted by the bank and as such the rent was being directly recovered by the bank till the year 2008. Thereafter the rent is still being paid by the said tenants in the premises to as such to continue to occupy the building. In view thereof the rights of the sitting tenants who are pre! existing to the mortgage cannot substantially be altered without the process of law and as such are required to be evicted. (emphasis supplied).

Since the bank was recovering the rent against the said tenancy and as such crediting the same to its accounts, notwithstanding the fact in a different account, the same would still tantamount to the bank having due knowledge as to the existence of the tenancy. Thus the status of the sitting tenants cannot be altered and as such be modified by the bank unilaterally in exercise of power as alleged to be enshrined under the Securitization Act."

Similarly in relation to the residential house No. 1800, Sector 15, Panchkula, the mortgage has been admitted. Para 74 reads as under:!

"74. RESIDENTIAL HOUSE:

That the residential house of the applicant being house No. 1800, Sector 15, Panchkula (HR) is otherwise allegedly secured by way of collateral security and as such once the primary securities squarely available with the bank there is apparently no necessity of enforcing any right against the collateral security. Be that as it may the valuation of the property has not been carried out for no person every entered into the premises or as such conducted the valuation and the bank has fixed the reserved price of the property on hypothesis without carrying out any actual valuation of the property".

However, counsel for the defendants states that in this para word 'allegedly, has been used which would mean that it is not admission. I disagree with such contention.

Upon reading the entire SA, filed by defendant Nos.1!3 and the judgment dated 21.03.2013 passed by this Tribunal in SA No.193 of 2011 leaves no doubt that the defendants herein are making futile attempts to dislodge the claim of the bank in relation to these two properties. The defence raised by these defendants are not only false and liable to be dismissed as discussed above but these are malicious on the face of records of the evidence produced by the parties more particularly the decision dated 21.03.2013 passed in SA No. 193 of 2011 and also averments made in SA No.193 of 2011 as such the same are dismissed."

While allowing the OA No. 1970 of 2017, the Tribunal directed for issuance of a recovery certificate to the effect that Bank shall be entitled to recover an amount of Rs 13,66,32,787/8 from the respondents, jointly and severally alongwith interest @ 12.5% p.a. with yearly interest on reducing balance with costs from 01.03.2012 until its recovery and the

amount shall be recovered from sale of hypothecated goods/ mortgaged properties (if not sold) earlier under the provisions of the Act of 2002 and in case there are unsatisfied dues, the same shall be recovered by attaching personal assets of the defendants as prescribed under the Act of 1993. 21.

During the course of hearing, ld. counsel for the Bank stated that pursuant to the execution proceedings on the basis of order dated 07.12.2017, both the properties have already been sold out and this fact was not disputed on behalf of the respondents. 22.

Although learned Senior counsel for the respondents has raised the plea on the basis of letter dated 06.09.2006 to the effect that there was nothing outstanding against the housing loan account availed by respondent No.1, but that is of no help in view of the fact that this letter talks about the housing loan account No.350300003 only and it nowhere says that House in question was free from all encumbrances or released by the Bank or that it is not mortgaged with the Bank regarding credit facilities availed by M/s Navdeep Bioceuticals.

Similarly, the argument of learned Senior counsel, while referring to letter dated 13.12.2008, is also not helpful for the reasons that it is the categoric stand of the Bank that no such letter was ever issued by them to Estate Officer, HUDA. Even in compliance of order dated 05.03.2020 of this Court, the record was produced by the Bank, but no such letter is traceable despite best efforts. The Chief Manager of the Bank has also filed an affidavit dated 06.03.2020 in compliance of above order of this Court and specifically denied the issuance of letter dated 13.12.2008. Also noteworthy that similar plea was raised by the respondents before the Tribunal, but the same was found to be untenable while passing the order dated 07.12.2017 and the stand taken by the Bank

to the effect that no such letter has ever been issued by them was found to be correct.

The argument raised by learned Senior counsel that Division Bench of this Court while dismissing CWP No.28914 of 2017 granted liberty to the respondents to avail the alternative remedy of civil suit is fallacious. Above writ petition was filed by M/S Navdeep Bio. with two fold prayer, viz:8 (a) For consideration of One Time Settlement Scheme (OTS); (b) To set aside the order dated 27.11.2017 passed by learned Tribunal, whereby IA No. 1365 of 2017 for summoning the witnesses from the office of Housing Board as well as HUDA to show as to whether the Bank had obtained permission to mortgage the House in question as well as Industrial Plot at the time of granting loan to M/s Navdeep Bio. was rejected with costs of Rs.1 lac.

The writ petition was dismissed by Division Bench of this Court on 16.10.2018, observing that respondents are making an endeavour to delay the recovery proceedings and para no. 20 being relevant reads as under:!

"20. From the narration of the facts above, it is evident that the present case has a long history and involves multifarious litigation. The earlier direction of this Court for pre! deposit of Rs.2 crores for entertainment of the appeal was not complied with. The interim order of this Court dated 18.12.2017 to deposit Rs.10 lakhs to establish the bona!fide of the petitioner was only complied with when the interim order was vacated. The case set up for issuance of notice of motion by the petitioner was that the petitioner is ready and willing to purchase the residential house. It was submitted by the

petitioner that in case the bank gets a better offer than the petitioner, the same will either be matched or vacant possession of the house will be handed over to the bank. On 11.10.2018, learned counsel for the petitioner submitted that Rs.78 lakhs would be deposited as per the time schedule mentioned, which may be taken as reserve price and property be put to auction afresh. The petitioner has even backed out from the statement made on 11.10.2018. From the conduct of the petitioner, it prima facie appears that the entire endeavour is to delay and stall the auction and recovery proceedings." Still further in para 21, Division Bench observed that there is an alterative remedy available against the auction proceedings under Section 17 and an appeal is also provided under Section 18 of the Act of 2002. Thus, the respondents are under complete misconception that they were granted liberty by the Division Bench for availing the alternative remedy to pursue the civil suit.

Argumentum a fortiori, it is quite elementary that even the Hon'ble Supreme Court can not confer the jurisdiction if the Court is not empowered by the legislature and reference in this regard can be made to the judgment; &"$ ' !

, AIR 1988, Supreme Court 1531, para 41 which reads as follows:8 "The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal".

24.

The contention of learned Senior counsel that applications of the Bank filed under Section 14 of the Act of 2002 seeking possession of both the properties were dismissed by the District Magistrate twice holding

that these properties were not mortgaged with the bank is also not helpful for the reasons that:8 (i) There was no jurisdiction vested with the District Magistrate to express any opinion that mortgage of both the properties in question was not valid;

(ii) As per the mandate of section 14, it is obligatory for the District Magistrate to take possession of the asset as well as documents and forward the same to the secured creditor.

Also necessary to mention here that while dealing with Section 14 of the Act of 2002, Division Bench of Himachal Pradesh High Court, allowed CWP No. 3052 of 20128F filed by the Bank against respondents as well as Navdeep Bio., after placing reliance &()$""*" #! ! (2011) 2 SCC 782, and in para 6 held as under:8 "For proceeding with the matter as per law, would mean that the Bank was free to proceed with the steps taken for the sale. Obviously, the Bank did not require any permission to proceed with the matter before the DRT. So, the permission granted to the Bank to proceed in accordance with law would only mean to proceed with the steps taken for the sale. The sale can be conducted only when the Bank is in possession of the property. The application filed by the authorized officer was for possession of the property. As and when an application under Section 14 is made, the District Magistrate is obliged to take possession of the secured asset and hand over the same to the secured creditor".

Reference can also be made to the judgment of Hon'ble Supreme Court in ' # + $, - !

(2010) 8 SCC 110, para 21 which is as under:8 "In terms of Section 14, the secured creditor can file an application before the Chief Metropolitan Magistrate or the

District Magistrate, within whose jurisdiction the secured asset or other documents relating thereto are found for taking possession thereof. If any such request is made, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, is obliged to take possession of such asset or document and forward the same to the secured creditor" (iii) The point of mortgage regarding both the properties had already been decided by the Tribunal.

Thus, rejection of the applications by the District Magistrate under section 14 of the Act of 2002 is immaterial and the observations made by the officer are inconsequential being beyond his authority. 25.

Another contention of ld. Sr. Counsel that two ex8officers of the Bank have already been summoned in the complaint case filed by the respondents and both are facing criminal proceedings before ld. JMIC would also be not helpful in any manner for the reasons that mere summoning by the JMIC is not the final word that Bank official(s) have committed any offence while preparing the loan documents and mortgage of both the properties, either at the initial stage of granting the financial assistance of seven crores or subsequent thereto, when the loan amount was enhanced from time to time. Since the point of mortgage has already been decided twice against the respondents by the Tribunal and the legal impact of the orders dated 21.03.2013 and 07.12.2017 cannot be erased or diluted, until and unless the same are set aside by the court of competent jurisdiction;therefore, mere pendency of the criminal proceedings before JMIC in a complaint case would not bestow the jurisdiction upon the civil court to entertain the suit for mandatory injunction. 26.

Last attempt was made by learned Senior counsel while relying upon the judgment of Hon'ble Supreme Court in ! ."

*. + # , (2004) 4 SCC 311 and reference made to relevant part of paragraph No. 51, is extracted as under:8 "51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages."

As already discussed in this order, the credit facility of Rs.7 crores was granted to M/s Navdeep Bio by the Bank vide sanction letter dated 04.09.2006 and both the properties in question i.e. House as well as Industrial plot were shown in the list of collateral securities. All the terms and conditions enumerated in the sanction letter were duly accepted by respondents on 05.09.2006. Later on, the credit facility of Rs.7 crores was enhanced from time to time and all these sanction letters clearly indicate that both the properties were mortgaged as collateral securities with the Bank for the purposes of loan granted to M/s Navdeep Bio. Also noteworthy that till the loan account of M/s Navdeep Bio.

was classified as NPA in the year 2011, no grievance was ever raised by the respondents to the effect that Bank had unilaterally shown these properties in the list of mortgage while advancing loan to M/s Navdeep Bio. or that any fraud has been committed by the Bank official(s) at any point of time. Undisputedly, the respondents were running an industry and are not illiterate persons or laymen and as such they were well aware about the implications of loan transactions with the Bank; thus the allegations of fraud are leveled in the plaint just as a clever device to project the cause of action, but in fact it is non8existent. Above all, respondents challenged the action of the Bank while filing SA No.

Tribunal as the same was dismissed on 21.03.2013 and plea regarding mortgage of both the properties was duly considered, but decided in favour of the Bank. Again at the time of adjudication of OA No. 115 of 2012 (renumbered OA 1970 of 2017) also, the plea relating to the mortgage of properties in question was raised by the respondents, but they could not succeed and ultimately the claim of the Bank was accepted by the Tribunal vide order dated 07.12.2017. Undisputedly, both the orders i.e. 21.03.2013 as well as 07.12.2017 have become final as on today. Even otherwise, entertaining the suit for mandatory injunction for return of original title deeds at this stage would virtually amount to re8 examine the orders passed by the Tribunal on two occasions and that will make an inroad with the findings recorded there in; thus in view the factual position, the judgment in !

/ (supra) is not helpful to the respondents in any manner 27.

Keeping in view the discussion made hereinabove, the irresistible conclusion would be as under:8 i) Section 34 of the Act of 2002, specifically bars the jurisdiction of Civil Court, vide

/ 0 &(!1;

ii) There is sufficient material on record which indicate that both the immoveable properties i.e. House No.1800 as well as Industrial Plot No. 398 were duly mortgaged by the respondents with the Bank at the time of availing the financial assistance for M/s Navdeep Bio.;

iii) M/s Navdeep Bio. defaulted in re8payment of the loan amount and consequently, loan account was classified as Non Performing Asset (NPA);

iv) The Bank initiated action under the Act of 2002 and aggrieved against the measures, respondents alongwith M/s Navdeep Bio., filed SA No. 193 of 2011,but the same was dismissed by the Tribunal vide order dated 21.03.2013. The point of mortgage regarding both the properties was specifically raised by the respondents and after due consideration, decided the same in favour of the Bank and against the respondents;

v) Bank filed OA No.115 of 2012 (OA No.1970 of 2017) for recovery of dues and issuance of recovery certificate against the respondents as well as M/s Navdeep Bioceuticals, which was allowed vide order dated 07.12.2017 and in this case also the point of mortgage was raised by the respondents, but the same was rejected by the Tribunal.

vi) Undisputedly, both the orders passed by the Tribunal have become final as on today;

vii) Even during the pendency of OA No. 1970 of 2017, IA No. 1365 of 2017, was filed by the respondents for summoning the witnesses from the office of Housing Board and HUDA to show that mortgage was created in favour of the Bank regarding both the properties i.e. House and Industrial Plot, but the same was rejected by learned Tribunal vide order dated 27.11.2017 with costs of Rs.1 lac and that order has been upheld by the Division Bench of this Court in CWP No. 28914 of 2017 on 16.10.2018;

viii) While passing the impugned order dated 15.01.2014,the civil judge failed to take into consideration the provisions of Sections 34 & 35 of the Act of 2002; Section 18 of the Act of 1993; order date 21.03.2013; impact of the pendency of OA No.215 of 2012 and thus committed grave error of law.

ix) In pursuance of the order dated 07.12.2017 (in OA No.1970 of 2017) both the properties have already been sold out during the auction proceedings.

28.

In view of the above conclusion this Court is left with no option except to allow the present revision petition and set aside the impugned order dated 15.01.2014 passed by Civil Court. 29.

Consequently, the petition is allowed. Impugned order dated 15.01.2014 is set aside. Learned trial Court is directed to decide the application of the Bank filed under Order 7 Rule 11, afresh by passing a speaking order, in accordance with law without being influenced by the observations made hereinabove.

No other point was urged by either of the parties. June 5th, 2020.

(MAHABIR SINGH SINDHU) sanjay JUDGE Whether speaking/ reasoned:

Yes/ No.

Whether Reportable:

Yes/No.