INDIAN BANK Vs. HEMALI ART SILK MILLS PVT LTD

JUDGEMENT

(1.) THIS appeal is filed by the appellant Indian Bank being aggrieved by the judgment and order dated 4.6.2002 passed by the learned Presiding Officer of Debts Recovery Tribunal- II, Mumbai in Original Application No. 3398/2000. By the impugned judgment and order, the learned Presiding Officer allowed the application filed by the Bank with costs against the defendant Nos. 1 and 3 to 6 and these defendants were jointly and severally ordered to pay to the applicant Bank an amount of Rs. 48,24,153.86 with interest at the rate of 18.5% per annum with quarterly rests from the date of the order of the original application till full realization. The learned Presiding Officer also gave declaration that subject to first charge of defendant No. 8 Rupee Co-operative Bank Ltd. in respect of outstanding of recovery certificate issued by Registrar of Co-operative Societies, Thane in ABN/TPCB/101/28 of 1987, the outstandings are secured by validly created mortgage (by defendant No. 3) of his flat No. 21, Roopshree Apartments, near Hotel Love Bird, Dr, Moses Road, Thane. He accordingly directed issuance of recovery certificate in the above stated terms. The Bank is aggrieved only with respect to Clause (c) of the operative portion of the order wherein declaration is given that the outstandings are secured by validly created mortgage by defendant No. 3 of his flat only subject to first charge of the Rupee Co-operative Bank Ltd. The appeal is restricted with respect to this aspect only.

(2.) Few facts, which are required to be stated, are as follows:

(3.) THE defendant No. 8 Rupee Co-operative Bank Limited also filed written statement, which was considered by the Tribunal while disposing of the original application, It was admitted by the defendant No. 8 that the defendant No. 7 had first charge over immovable property of defendant No. 1 (Hemali Art Silk Mills Pvt. Ltd). THE defendant No. 1 validly registered the charge on 30.11.1986 with the Registrar of Companies for sum of Rs. 30 lacs and the ROC had granted certificate of registration on the above said date. THE defendants further contended that in view of the subsequent mortgage by the defendant No. 1 company with applicant namely Indian Bank that would be subject to this charge. It was also submitted that the defendant No. 1 had also executed mortgage deed on 30.10.1996 for a sum of Rs. 30 lacs and the said mortgage was lodged for registration and registration fee was also paid but the documentation remained under object for want of income tax clearance certificate under Section 23-A of the Income Tax Act, 1961. It was submitted that the applicant Bank ought to have found out whether there existed any encumbrance on the property. According to the defendant No. 8 the applicant Bank did not obtain title certificate from the solicitors and/or Advocates. According to the defendant No. 8 there was collusion between the applicant Bank defendant Nos. 1 to 6. According to the defendant No. 8 there was valid subsisting recovery certificate against the defendant Nos. 1 to 6.