A. M. Khanwilkar, J. - (1.) The judgment and order dated 30th August, 2016 of the Division Bench of the High Court of Judicature at Bombay in Writ Petition No.7480 of 2014, is assailed in this appeal, whereby the High Court without formally setting aside the order passed by the Debts Recovery Appellate Tribunal, Mumbai dated 20th November, 2013 in Appeal No.273 of 2013 connected with M.A. No.886 of 2013, disposed of the writ petition with liberty to respondent Nos.5 & 6 (writ petitioners) to approach the competent forum for adjudication of their right, title and interest in respect of a flat/apartment, i.e. Flat No.C-203 on the Second Floor of Blue Heaven Apartment, CWing, Rebellow Road, Bandra (West), Mumbai, which was mortgaged to the appellant Bank by the directors of respondent No.1 Company by way of an equitable mortgage.
(2.) The Debts Recovery Tribunal ("DRT") as well as the Debts Recovery Appellate Tribunal ("DRAT") after examining the plea taken by respondent Nos.5 and 6 came to hold that the document styled as Memorandum of Understanding dated 13th March, 2011, relied upon by respondent Nos.5 and 6, was subsequently created after the equitable mortgage and moreso it was an unregistered document which would not confer any right, title and interest in their favour in the said flat. Further, the share certificate of the said flat has already been transferred by the Society in the name of the directors of respondent No.1 Company i.e. Mrs. Zahoor K. Dhanani, Mr. Karim K. Dhanani and Mrs. Habika K. Dhanani (respondent Nos.2, 3 and 4 herein). It is also held that the Society has contemporaneously recorded the factum of mortgage created by the said respondents in respect of the subject flat in favour of the Bank; and that the said respondents were not coming forward to deny the stated mortgage. On the basis of the documentary evidence, DRT as well as the DRAT concurrently held that it is well established that the said respondents had legitimately created an equitable mortgage in respect of the said flat in favour of the Bank, which has had security interest upon the said flat. On the other hand, respondent Nos.5 and 6 (writ petitioners) have failed to file any documentary evidence to establish their subsisting title over the subject flat. On that basis, the relief claimed by respondent Nos.5 and 6 (writ petitioners) to restrain the Bank from proceeding with the auction of the subject flat stood rejected.
(3.) This decision of the DRAT dated 20th November, 2013 was assailed by respondent Nos.5 and 6 (writ petitioners) by way of Writ Petition No.7480 of 2014. The Division Bench of the High Court noted the plea of the writ petitioners and opined that the question regarding the right, title and interest or marketable title of the writ petitioners or any interest that could have been parted by respondent Nos.2 to 4 under the so called mortgage, involved disputed facts and would require evidence and a full-fledged trial. After so noting, the High Court went on to observe that with a view to give full opportunity to the parties to bring on record the relevant facts in terms of the pleadings and for full and complete adjudication of the matters in issue, it is apposite to give liberty to the writ petitioners to contest the matter before a proper forum where all the issues could be agitated. For, indisputably, respondent No.5 (writ petitioner No.1) is in physical possession of the stated flat. The High Court proceeded to pass the following operative order in the said writ petition: "6] Accordingly, we dispose of the writ petition with the following directions: a] Period of 8 weeks is granted for the writ petitioners to approach proper forum to get adjudication of the rights of the writ petitioners as contended in the writ petition and within the said period of 8 weeks, they shall file and seek proper interim relief in their favour. Till expiry of 8 weeks, the 1st respondent bank shall not proceed with the matter in terms of the order obtained by them before Debts Recovery Tribunal so far as the property in question; b] Amount of Rs.25 Lacs shall be deposited in an interest earning deposit, by the respondent No.1 bank and profits of the said deposit shall enure to the benefits of the parties, who become successful in the litigation; and c] No order as to costs.";