Decided on December 27,2004



K.J.Paratwar, - (1.) THIS Appeal takes exception to the order passed on 13.9.2004 by the Recovery Officer (Mr. S.S. Iyer) of this Tribunal in Recovery Proceeding No. 11 of 2003 against the respondent Nos. 2 to 7. By the impugned order, the appellant - intervener's prayer to lift attachment of Flat No. 23, Shivgiri, Plot No. 98, Opp. R.T.O. Lane, Four Bungalows, Andheri (W), Mumbai 400053 was turned down.
(2.) The respondent Bank had filed suit No. 766 of 1999 in the Hon'ble High Court of Judicature at Bombay which came to be transferred to this Tribunal on its establishment and was registered as Original Application No. 1866 of 1999. The O.A. came to be disposed of by ex parte judgment passed on 21.1.1003. The judgment declared that the amount allowed by the O.A. was secured (by Equitable Mortgage) of the Flat in question. Pursuant to the judgment, Recovery Proceeding No. 11 of 2003 was initiated. In the Recovery Proceeding, the property was attached under the orders of learned Recovery Officer vide Panchanama dated 12.2.2004 and formal possession has been taken. The intervener thereupon took out application dated 8.3.2004 in the Recovery Proceeding contending that he was bona fide purchaser vide agreement dated 5.2.2002 for valuable consideration without notice of the mortgage in the applicant's favour. In the affidavit filed before the learned Recovery Officer in support of said application, the intervener has set out the steps which he had taken before purchasing the property. This is done in order to show that he had no reason to know about the mortgage of the Flat in the applicant's favour; that he had taken all precautions before purchase of the property; and further that certain documents (copy of the societies resolution filed at the time of creation of Equitable Mortgage) were forged. The Bank vehemently opposed said application by pointing out inter alia that the original title deeds namely Share Certificate, Allotment Letter of the Society were deposited by the Borrower with the Bank at the time of obtaining the loan i.e. in September 1995. In fact, the society itself had given letter to the Bank stating that the Flat was unencumbered and informing that the lien is being recorded. Apart from that title certificate issued by Mr. Parmod Mishra, Advocate and permission from Income Tax Department were also deposited by the mortgagor at the time of creation of Equitable Mortgage. In any case, the transaction, assuming the same to be factually believable, is subsequent in point of time and does not displace the mortgage in the Bank's favour.
(3.) BY the impugned order, the learned Recovery Officer disallowed the intervener's application mainly on the ground that this Tribunal had declared that the outstandings are secured by Equitable Mortgage of the Flat and that he (Recovery Officer) cannot go beyond the Recovery Certificate.;

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