Ajay Rastogi, J. - (1.) BOTH the matters have come up on application filed by Respondent u/Article 226(3) of the Constitution for vacation of interim order passed by this Court. However, with consent of the parties, matter has been finally heard.
(2.) THE Petitioners, as alleged, are bonafide purchasers of the property mortgaged with Respondent -bank and cash credit facility was extended to Respondents -2 and 3 who are principal borrowers. It has come on record that the property which is being alleged to be purchased by the present Petitioners was mortgaged with the financial institution (Respondent -bank) and only by creating equitable mortgage cash credit facility was extended to Respondents -2 and 3. However, on default being committed in payment of outstanding dues their account were made 'NPA' and accordingly recovery proceedings under the Act of 2002 were initiated by Respondent financial institution. However, when the notice was published for taking possession of the property in question Under Section 13(4) of the Act of 2002 the Petitioners approached this Court by filing instant petitions. Their grievance is that they are bonafide purchasers of the property mortgaged with the Respondent -bank and default if any committed by Respondents -2 and 3 who are principal borrowers action can be taken by the financial institution against them and as far as the fact of mortgage being created over the property in question is concerned, was not made known to the present Petitioners and the principal borrowers have also not made this fact known to the Petitioners, in absence whereof they being the bonafide purchasers, no additional liability could have been fastened upon the Petitioners and notice published by the Respondent for taking possession of the property Under Section 13(4) of the Act,2002 in the facts and circumstances of the instant case is wholly without jurisdiction and their action pursuant thereto is arbitrary and illegal.
(3.) COUNSEL for Respondent -bank, on the other hand, submits that when the property in question was mortgaged with the Respondent -bank, it was duty of the Petitioners to verify the fact well before the property mortgaged with the bank being purchased by the principal borrowers and under these circumstances they cannot be held to be bonafide purchasers of the property mortgaged with the financial institution. Counsel further submits that the Petitioners, who allege themselves to be the bonafide purchasers of the property mortgaged with the Respondent -bank, if at all are aggrieved by the action of the Respondent -bank being initiated under the Act of 2002, are certainly at liberty to raise their grievance by filing appeal Under Section 17 of the Act of 2002 and in view of efficacious remedy of appeal being available to the Petitioners, this Court may not like to entertain the instant petitions.;