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Judgment
Sanjay Kishan Kaul, C.J.—Learned counsel for respondent No. 2 accepts notice. Respondent No. 1 is proforma party. Respondents No. 3 to 5 have not been served being the proprietorship firm, its proprietor and guarantor as they were not available at the given address as informed by the learned counsel for the petitioner and have been declared as proclaimed offenders in view of the criminal proceedings initiated by the petitioner. The controversy is limited. Respondents No. 3 to 5 are stated to have purchased property measuring 1 Kanal and 7 Marlas located in Abadi Basti Sheikh, Jalandhar, in pursuance to a sale deed dated 22.6.1988. The loan facility was availed of by the proprietorship firm of cash credit hypothecation limit of Rs. 2 lacs on 22.11.1993. Thereafter, on 9.6.1999, respondent No. 5 is stated to have sold half the land measuring 13.5 Marlas to Mrs. Tript Kaur wife of Trilochan Singh, vide sale deed of the even date.
An equitable mortgage is stated to have been created by respondents No. 4 and 5 of the entire 27 Marlas by depositing the original title deed on 14.6.2000 even though half the land already stood sold, vide separate sale deed dated 9.6.1999. This land sold to Smt. Tript Kaur was in turn sold by her to Smt. Krishna Singh wife of Shri Sangram Singh/respondent No. 5, vide sale deed dated 26.3.2003.
Insofar as the half share of respondent No. 4 is concerned, he is stated to have sold the same to Arun Kohli, Rajesh Kohli and Mahesh Kohli, vide the registered sale deed dated 17.2.2005 and they are in possession of the same. When the Kohlis found out about alleged fraud played qua the transaction, Shri Rajesh Kohli registered FIR No. 126 dated 26.5.2005 under Sections 420 /120-B IPC at P.S. Division 4, Jalandhar against respondents No. 4 and 5.
The State Bank of India, which had advanced the loan, filed a suit for recovery against respondents No. 3 to 5 on 8.4.2006, but respondents No. 3 and 4 were proceeded ex-parte. The suit was decreed on 16.4.2008.
Despite the aforesaid position, Smt. Krishna Singh wife of Sangram Singh/respondent No. 5 executed a sale deed dated 22.3.2010 in favour of the petitioner without disclosing the mortgage in favour of respondent No. 2-Bank. Thus, respondent No. 2-Bank filed OA 215 of 2011 in DRT-II, Chandigarh, which was allowed. In execution proceedings initiated, the petitioner along with the Kohlis filed objections. The auction of the mortgaged property was deferred, vide order dated 24.4.2012. These objections were, however, dismissed on 29.1.2013 and auction was scheduled for 11.3.2013.
The petitioner offered to respondent No. 2-Bank to make the entire payment of the dues and for keeping the auction in abeyance, vide number of letters, but to no avail compelling the petitioner to file the present writ petition under Article 226 of the Constitution of India.
On the first date itself on 8.3.2013, the petitioner offered to pay the entire outstanding loan, with Rs. 9 lacs to be deposited on or before 11.3.2013, date of auction. The auction was stayed subject to the said deposit of Rs. 9 lacs. On the next date on 13.3.2013, the learned counsel for the petitioner informed that a sum of Rs. 10 lacs have in fact been deposited with the Court auctioneer. Thereafter, another sum of Rs. 2.50 lacs was deposited as recorded in the order dated 3.4.2013 and on the last date, learned counsel for the Bank took a week''s time to communicate the statement of accounts specifying the amount due and payable by the borrower. However, the Bank failed to take any action of communicating this amount to the petitioner.
Learned counsel for respondent No. 2-Bank states before us today that a sum of Rs. 6,41,095/- is due as on April, 2013 along with accrued interest and other charges.
Learned counsel for the petitioner states that the petitioner is willing to deposit all the amounts by the end of this month and thus, it is agreed that the respondent No. 2-Bank will communicate the balance outstanding of the borrower to the petitioner through counsel of the petitioner within a week from today inclusive of interest upto 31.8.2013 and other charges. The complete statement of accounts should be supplied in this behalf and the petitioner will deposit the amount on or before 31.8.2013.
Learned counsel for respondent No. 2-Bank submits that though this would close the account of the borrower, the impediment for release of the documents deposited with them in favour of the petitioner is that the borrowers are not before this Court and they may raise any objection subsequently.
We are of the view that since the concerned respondents are absconding, the petitioner is depositing the amount and as per the learned counsel for the petitioner the title of the petitioner is derived through a duly registered sale deed in their favour executed by Smt. Krishna Singh wife of Sangram Singh/respondent No. 5, while the balance land stands sold by respondent No. 4 to the Kohlis, there can be no impediment to the release of the earlier title document in favour of the petitioner. Of course, this would confer title on the petitioner only to the extent of half of the land as per the duly executed and registered sale deeds.
Learned counsel for the petitioner undertakes that duly attested copies of the sale deeds both in favour of the Kohlis and in her favour will be handed over to the respondent No. 2-Bank. Thereafter, the documents of title lying with the respondent No. 2-Bank can be released to the petitioner on clearance of the total outstanding. The writ petition accordingly stands disposed of leaving the parties to bear their own costs.