HOTEL ORNATE NILGRIS PVT LTD Vs. STATE BANK OF TRAVANCORE

JUDGEMENT

(1.) FINAL order was passed by the DRT on 28.3.2001 allowing the original application (OA) and DRC was also issued. The appellants filed IA-388/2002 praying the Tribunal to set aside the ex parte decree and it was dismissed by the Tribunal by order dated 18.10.2002. Aggrieved against that order this appeal is preferred by the appellant who is the 4th defendant in the OA.

(2.) Counsel for the appellant submitted that no relief was sought for as against the 4th defendant in the OA and so the 4th defendant was keeping quiet and he did not contest that matter much, now after coming to know that the 4th defendant's property has been brought to auction, it is necessary for the 4th defendant to contest the case and so the ex parte order passed has to be set aside. Counsel for the respondent Bank submitted that the 4th defendant's property is involved in this case and that has been mortgaged to the Bank and in case of default of payment of the decree amount by the borrowers, the property of the 4th defendant shall be brought to sale by public auction after due advertisement and the sale amount has to be adjusted towards the suit claim.

(3.) COUNSEL for the appellant 4th defendant submitted that this appellant never mortgaged his properties by deposit of title deeds to the State Bank of Travancore and he has not executed any document in favour of the State Bank of Travancore in respect of that mortgage and the 4th defendant's property cannot be proceeded with and he has got a valid defence and he must be given opportunity to contest the case. There is clear prayer in the OA that on failure to pay the decree amount by D1 to D3, the property described in the A and B Schedule property be brought to sale by public auction after due advertisement. Schedule 'B' property is the property of the 4th defendant. Injunction has also been sought for restraining defendants 1 to 4 from alienating and encumbering the B-Schedule property and also for an order of attachment before judgment of property described in Schedule 'B', Even though in Clause (a) of the prayer column the defendants 1 to 3 were directed to pay that amount, Clause (c) of the prayer column clearly provides for bringing this appellant's property to auction.