AXIS BANK Vs. HILAL AHMED BHAT

JUDGEMENT

(1.) This is an appeal under Sec. 104(1) read with Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908.

(2.) The appellant filed E.A.No.118 of 2018 in E.P.No.30 of 2017 in O.S.No.32 of 2016 before the Sub Court, Ottapalam, seeking to lift the attachment over the petition scheduled property. The E.A. was filled invoking the provision of Order XXI, Rule 58 and Sec. 151 of the Code, contending that the order of attachment obtained by the 1st respondent in respect of the said property on the ground that he was entitled to realise from the said property the debt due to him from the 2nd respondent in O.S.No.32 of 2016 is not sustainable in law, since the appellant is a secured creditor. The 2nd respondent while availing a cash credit facility of Rs.45,00,000.00, he created an equitable mortgage in favour of the appellant by deposit of title deed. The said loan amount has become a non-performing asset, and therefore, the appellant initiated proceedings against the secured asset as per the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). It is contended that in that circumstance, the court should not have attached the property and the appellant is entitled to get the attachment vacated.

(3.) The 1st respondent resisted the application by filing an objection. It was contended that the 2nd respondent defaulted the payment of the loan due to the appellant is incorrect. O.S.No.32 of 2016 was filed by him for realisation of the amount legally due to him. It is a bona fide litigation. The attachment of the property in the suit was effected on 28/3/2016. Only on 14/7/2017, the appellant took over possession of the property. The appellant has no absolute title to the property and therefore has no right to object the attachment. Even if the appellant has a right as a secured creditor, the 1st respondent has every right to proceed against the property subject to that right. O.P.No.1034 of 2018 filed by the appellant before this Court claiming the same right was dismissed. Accordingly, the 1st respondent sought to dismiss the application. The 2nd respondent remained ex parte.