Decided on March 20,2007



K.Gnanaprakasam, - (1.) AGGRIEVED by the order dated 19.9.2006, in IA-621/2006 in DCP-1656/2006 in OA-562/1998, passed by the DRT, Bangalore, the applicant Bank has preferred this appeal. I have heard the learned Advocates for the appellant and the respondent.
(2.) OA filed by the respondent had already been decreed and recovery certificate was also issued. Pursuant to the same, the mortgaged property was attached by order dated 20.11.2003, and the property, was brought to auction on 10.2.2004, 15.6.2004,27.7.2005, and on 26.4.2006. That in the meanwhile, the appellant Bank came to know that the certificate debtors 2 and 3 have sold the mortgaged property in utter violation of the prohibitory order of attachment. Hence, the appellant filed the application stating that the respondent has done, so with an intention to delay the recovery of the amount due to the appellant Bank. Even after selling the mortgaged/attached property, the respondent has not chosen to pay or deposit the sale proceeds. Without disclosing the sale of the property, the respondent submitted a proposal for compromise and kept Rs. 10 lakh in the No-Lien account. But his compromise proposal was rejected. The appellant filed an application for the arrest of the 2nd defendant having violated the order passed by the DRT, and as a counter blast to the same, the respondent sent a letter to the appellant demanding return of the amount of Rs. 10 lakh kept in No-Lien account. The respondent sold the mortgaged/attached property with an intention to delay the recovery of the amount due to the appellant Bank and if the order of attachment of the said amount is not ordered, the appellant Bank would be put to great loss and hardship. The respondent resisted the said petition contending that there was a proposal for One Time Settlement (OTS) and in order to prove the bona fide, the respondent had deposited Rs. 10 lakh in a No-Lien Account with the appellant Bank. But however, the OTS had fallen out and, therefore, the amount bona fidely deposited by the respondent cannot at all be attached by the applicant Bank. It is also further contended that the applicant Bank has not taken any action against the borrowers and their properties for the recovery of the amount.
(3.) THE DRT has observed that the applicant Bank has not taken any steps to recover the amount from the borrowers and the amount deposited by the respondent bona fidely to arrive at the OTS and when once it has fallen out, the appellant is not entitled to attach the same. THE DRT also gave a direction to the applicant Bank to proceed first against the borrowers to recover the amount and then against the respondent herein.;

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