S L SANNABHADTI Vs. BANK OF BARODA

JUDGEMENT

(1.) THE Bank filed Original Application (OA) against the defendants for recovery of the amount due to it and the application was allowed and Recovery Certificate was ordered to be issued as prayed for in the application. Aggrieved against the Order the 4th defendant has preferred this appeal.

(2.) According to the applicant Bank, the 4th defendant has created equitable mortgage by deposit of title deeds and the 4th defendant is also liable for the suit claim and the application was allowed as against the 4th defendant also. The 4th defendant in her reply statement has contended that she has not created any equitable mortgage and she did not deposit her title deeds and she never handed over the documents of the title deeds to the applicant Bank and she is not liable for the suit claim. She further states that she has also not issued any personal guarantee and she is the absolute owner in possession of her property. She further contended that the 2nd defendant approached the 4th defendant with a request to give the title deeds relating to her property and she gave, her title deeds belonging to the B-Schedule property to the 2nd defendant only to show them to the Bank and the 2nd defendant handed over the documents to the applicant Bank and accordingly the title deeds arc with the Bank and the applicant Bank refused to return the documents and the 4th defendant wrote letter to the applicant Bank and the applicant Bank wrote that the title deeds would be returned if the 2nd defendant cleared the overdues.

(3.) COUNSEL for the appellant submitted that when the High Court has observed like this the PO, DRT, has disposed of the OA without deciding the matter independently by the DRT with regard to the case of the 4th defendant and the PO, DRT, has found that there is already a finding to the effect that the mortgage created in favour of the applicant Bank is invalid and the applicant is a party to the proceedings and the 4th defendant was the plaintiff and in the light of that judgment it is not open to the 4th defendant to question the mortgage and thus the mortgage by deposit of title deeds is established. When the High Court has given a specific direction to the DRT to decide independently being uninfluenced by the findings of the City Civil Court, the PO, DRT has not given any independent finding and instead of that the PO, DRT, has held that there is already a finding to that effect that the mortgage created in favour of the applicant Bank is valid. The PO, DRT, has to decide independently with regard to the case of the appellant but the PO has not done so. The PO, DRT has mainly relied upon the finding of the City Civil Court and has given the finding as against the appellant. The High Court has clearly barred the DRT to give any effect to the finding of the City Civil Court and directed to decide independently with regard to the case of the 4th defendant since the City Civil Court has no jurisdiction to decide that matter. The PO, DRT, has not decided the matter independently with regard to the case of the 4th defendant. The PO, DRT has followed the finding of the City Civil Court and has decreed the OA as against the 4th defendant also. So the case of the 4th defendant has to be done in detail and independent finding has to be given for the case of the 4th defendant. ,