S L SANNABHADTI Vs. BANK OF BARODA
LAWS(DR)-2003-8-13
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on August 06,2003

Appellant
VERSUS
Respondents

JUDGEMENT

A.Subbulakshmy, - (1.)THE Bank filed Original Application (OA) against the defendants for recovery of the amount due to it and the application was allowed and Recovery Certificate was ordered to be issued as prayed for in the application. Aggrieved against the Order the 4th defendant has preferred this appeal.
(2.)According to the applicant Bank, the 4th defendant has created equitable mortgage by deposit of title deeds and the 4th defendant is also liable for the suit claim and the application was allowed as against the 4th defendant also. The 4th defendant in her reply statement has contended that she has not created any equitable mortgage and she did not deposit her title deeds and she never handed over the documents of the title deeds to the applicant Bank and she is not liable for the suit claim. She further states that she has also not issued any personal guarantee and she is the absolute owner in possession of her property. She further contended that the 2nd defendant approached the 4th defendant with a request to give the title deeds relating to her property and she gave, her title deeds belonging to the B-Schedule property to the 2nd defendant only to show them to the Bank and the 2nd defendant handed over the documents to the applicant Bank and accordingly the title deeds arc with the Bank and the applicant Bank refused to return the documents and the 4th defendant wrote letter to the applicant Bank and the applicant Bank wrote that the title deeds would be returned if the 2nd defendant cleared the overdues.
The appellant 4th defendant filed Suit before the City Civil Court, Bangalore, for injunction and that Suit was dismissed. The finding of the City Civil Court was that the mortgage was created by the 4th defendant. The plaintiff preferred appeal before the High Court of Karnataka as against the judgment and decree passed by the City Civil Court dismissing the suit in OS-6457/1995 filed by the plaintiff for injunction. The first appeal was disposed of by the High Court of Karnataka holding that the matter has to be decided by the DRT which has got jurisdiction to try this case and it bars the jurisdiction of the Trial Court to entertain the suit in that regard and while deciding the matter the suit ought to have been dismissed on the ground of jurisdiction by the Trial Court but the Trial Court dismissed the suit on merits also and since that Court has no jurisdiction to try this case and the findings of the Trial Court in that view of the matter did not call for interference and the appeal filed by the plaintiff has to be dismissed, however, as the present plaintiff the appellant is also a party before the DRT and the matter in controversy has to be decided by the jurisdictional Court, the dismissal of the present Suit will not come in the way of deciding the contentions of the present appellant-plaintiff by the DRT uninfluenced by the findings given by the Trial Court or dismissing the appeal by this Court and with these observations the appeal was dismissed. It has also been observed by the High Court that "the observations made during the course of the Order will not come in the way of the DRT to decide the contentions of the appellant-plaintiff who is defendant before the DRT in deciding the matter between the parties."

(3.)COUNSEL for the appellant submitted that when the High Court has observed like this the PO, DRT, has disposed of the OA without deciding the matter independently by the DRT with regard to the case of the 4th defendant and the PO, DRT, has found that there is already a finding to the effect that the mortgage created in favour of the applicant Bank is invalid and the applicant is a party to the proceedings and the 4th defendant was the plaintiff and in the light of that judgment it is not open to the 4th defendant to question the mortgage and thus the mortgage by deposit of title deeds is established. When the High Court has given a specific direction to the DRT to decide independently being uninfluenced by the findings of the City Civil Court, the PO, DRT has not given any independent finding and instead of that the PO, DRT, has held that there is already a finding to that effect that the mortgage created in favour of the applicant Bank is valid. The PO, DRT, has to decide independently with regard to the case of the appellant but the PO has not done so. The PO, DRT has mainly relied upon the finding of the City Civil Court and has given the finding as against the appellant. The High Court has clearly barred the DRT to give any effect to the finding of the City Civil Court and directed to decide independently with regard to the case of the 4th defendant since the City Civil Court has no jurisdiction to decide that matter. The PO, DRT, has not decided the matter independently with regard to the case of the 4th defendant. The PO, DRT has followed the finding of the City Civil Court and has decreed the OA as against the 4th defendant also. So the case of the 4th defendant has to be done in detail and independent finding has to be given for the case of the 4th defendant. ,


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