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Judgment
S. Ravi Kumar, J
This Appeal is preferred against order dated 21st January, 2010 in Miscellaneous Application (M.A.) No. 83 of 2009 in Original Application (O.A.) No. on the file of Debts Recovery Tribunal No. III, Mumbai. Respondent No. 1 herein above referred M.A. for following reliefs:
"(a) that the Intervenors be added as party respondents in the present proceedings;
(b) That it be declared that the Intervenors have the first charge over the properties in respect of the Gala Nos, 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road. Opp. Hanjar Nagar, Pump House, Andheri (E), Mumbai-400093, which are kept for public auction on 23rd April, 2009;
(c) That it be declared that the Intervenors are entitled to recover its decretal claim from sale of the properties in respect of the Gala Nos. 7, 8, 9 and 10 situated in the Satguru. Industrial Estate, Jijamata Road, Opp. Hanjar Nagar, Pump House, Andheri (E), Mumbai-400093;
(d) That it be declared that the Intervenors are entitled to recover its decretal dues prior to applicants claim out of the sale proceeds if auction of the properties in respect of the Gala Nos. 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road, Opp. Hanjar Nagar, Pump House, Andheri (E). Mumbai-400093, is allowed;
(e) That appropriate directions be given to the applicants that, in respect of the Gala Nos. 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road, Opp. Hanjar Nagar. Pump House, Andheri (E), Mumbai-400093; to pay a sum of Rs. 44,23,143/- due as on 31st March, 2009 with further interest @ 17% p.a. with quarterly rests thereon till realisation and other costs of recovery, towards clearance of charge of the Intervenors on the said property as a pre-condition for handing over possession of the said properties to the succeeded bidder/auction purchaser;
(f) That the applicants, in respect of the Gala Nos, 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road, Opp. Hanjar Nagar. Pump House, Andheri (E), Mumbai-400093, be prohibited from taking possession of the said property or disturbing the possession of the Intervenors in respect of the said property till payment of dues as per Clause (c) hereinabove;
(g) That pending the hearing and final disposal of the present application, the auction proceedings in respect of the Gala Nos. 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road. Opp. Hanjar Nagar, Pump House, Andheri (E), Mumbai-400093 be stayed;
(h) That pending the hearing and final disposal of the present application, the applicants be prohibited from conducting the auction proceedings in respect of the attached Gala Nos. 7, 8, 9 and 10/or disturbing the possession of the Intervenors in respect of the said property till payment of dues as per Clause (b) hereinabove;
(i) Ad-interim reliefs in terms of prayer Clauses (f), (g) and (h) hereinabove be granted to the Intervenors;
(j) Such further and other reliefs as may be necessary be granted to the Intervenors:
(k) Costs of this application be granted to the Intervenors."
Appellants herein opposed said application and on consideration of contentions and rival contentions of both parties. Tribunal below allowed the application of respondent No. 1 herein and recorded a finding that borrower has created charge in respect of Gala Nos. 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road, Opp. Hanjar Nagar, Pump House. Andheri (E), Mumbai-400093 and further held that respondent No. 1 herein can recover the debt to it by proceeding against the said mortgaged property after adjusting its debt out of the sale proceeds, the excess amount be paid to appellants herein for the loan availed by the same borrower from the appellant herein. Now aggrieved by the said order, appellant-Bank preferred present Appeal mainly contending that learned P.O. wrongly held that respondent No. 1 herein has first charge over the Suit property and the appellant herein has got second charge.
It is contended by appellant that the title deeds presented before respondent No. 1 herein for creating mortgage are fake documents, and therefore, there is no valid mortgage in favour of respondent No. 1 herein. It is also contended that there cannot be two sets of documents of different dates between the same parties as vendor and purchaser are not and the same for the same properties and the Tribunal below not considered the same and arrived at a wrong decision. It is further contended that the documents in favour of respondent No. 1 herein on the basis of which alleged mortgage is created are unregistered documents and therefore, they cannot be looked into. It is further contended that impugned order dated 21st January, 2010 is bad in law and is liable to be set aside.
On the other hand, it is the contention of respondent No. 1 Bank that the Appeal is misconceived and untenable and liable to be rejected in limine. According to respondent No. 1, Tribunal below rightly held that respondent No. 1 has got first charge over the scheduled property i.e. Gala Nos. 7, 8, 9 and 10 which is based on material on record and the objections of appellant are not tenable. It is further contended that borrower i.e. respondent No. 2 herein created mortgage for the loan availed from respondent No. 1 by deposit of original documents in respect of Gala Nos. 7, 8, 9 and 10 in the year 2001 whereas mortgage in favour of appellant herein was in the year 2002, therefore, the rights of appellants are only subject to mortgage in favour of respondent No. 1. It is also contended that learned P.O. allowed application of respondent No. 1 herein on considering the documents produced before it and that there are no grounds to interfere with the said order.
Heard both sides. Both side Advocates submitted their arguments in support of above referred contentions of their respective parties.
The main and foremost contention of appellant is that there is no valid mortgage in favour of respondent No. 1 herein and the documents deposited before respondent No. 1 Bank are fake documents and the Tribunal below failed to consider this aspect. I have perused material paper including application of the respondent and reply of this appellant to the said application. In Para 3 of the application respondent No. 1 herein specifically pleaded that loan facilities were on the hypothecation of machinery and stock and mortgage of immovable property being Gala Nos. 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road, Opp. Hanjar Nagar, Pump House, Andheri (E), Mumbai-400093, belonging to the borrower. It is specifically pleaded that the borrower executed equitable mortgage by deposit of title deeds on 14th June, 2001 and 18th June, 2001 in favour of respondent No. 1 Bank and the documents are annexed as Exts. A-I, A-II and A-III which include copy of letter evidencing deposit of title deeds. In reply to this para appellant stated that these contentions are not admitted and equitable mortgage in favour of respondent No. 1 Bank herein is disputed and the same has to be proved. Except that no other contention is raised in respect of mortgage in favour of respondent No. 1 Bank. The objections raised in the grounds of Appeal are all new pleadings which are not raised before Tribunal below in its reply. As seen from reply of appellant, only objection with regard to creation of mortgage in favour of respondent. No. 1 Bank is that appellant is not admitting that mortgage and respondent No. 1 has to prove it. Now it has to been seen whether respondent No. 1 has proved mortgage or not. It is recorded in the impugned order that respondent No. 1 herein has produced Memorandum for Deposit of Title Deeds to create equitable mortgage on 14th June, 2001 and also title deeds in respect of property bearing Gala Nos. 7, 8, 9 and 10 situated in the Satguru Industrial Estate, Jijamata Road, Opp. Hanjar Nagar Pump House, Andheri (E), Mumbai-400093 and on the basis of these documents Tribunal below recorded a finding that respondent No. 1 herein has proved that respondent No. 2 has deposited documents of title with intention to create mortgage. Admittedly, mortgage in favour of appellant herein is subsequent to mortgage in favour of respondent No. 1. Appellant except contending that documents deposited before respondent No. 1 are fake and not valid, no material is placed to substantiate the same. As already referred to above, no such objection is raised before Tribunal below in reply to the application of respondent No. 1. Having not pleaded and not proved, it is not open to the appellant to raise those contentions for the first time in the Appeal, that too without producing any material. When mortgage is created in favour of respondent No. 1 in respect of the same property on 14th June, 2001, any mortgage subsequent thereto on the same property shall be subject to the earlier mortgage and the Tribunal below following this ratio held that first charge is in favour of respondent No. 1 Bank. In fact, the Tribunal below has directed respondent No. 1 Bank to pay excess amount to the appellant herein towards its debt, which is quite justifiable order. As rightly pointed out by respondent No. 1 Bank, appellant failed to make out any case and all the contentions raised in the Appeal are without pleadings and evidence, therefore the objection of the respondent No. 1 Bank has to be upheld.
On a scrutiny of the material, I am of the view that Tribunal below was right in allowing application of respondent No. 1 and recognising the mortgage of respondent No. 1, which is earlier in point of time and I do not find any grounds to interfere with the impugned order. For the reasons stated above, I am of the considered view that appeal is devoid of merit and liable to be dismissed. Accordingly Appeal is dismissed with no order as to costs.
All Miscellaneous Applications, if any, are dismissed as infructuous.