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Judgment
ORDER
This appeal is listed for hearing against the order passed in IA 1626/2024 in OA 408/2024.
Learned counsel for R1 and R2 is present and seeks time to file counter. Mr. S.P. Nagaraj, learned counsel offers to file vakalath for R3. Despite service of notice to R4, none appeared. Therefore, R4 called absent and set exparte.
Learned counsel for the appellant submitted that OA 488/2024 has been filed by the appellant for recovery of money from the respondents. In the said OA, appellant filed IA 1626/2024 for attaching the properties mentioned in the schedule. Learned Presiding Officer, dismissed the IA stating that the petitioner/appellant had not produced any strong evidence to show the malafide intention of the defendants to alienate the property given in the schedule to OA and IA. It was also recorded that “rather defendants filed their undertaking not to do any sale or other things that would create trouble in realizing the loan by the Bank and therefore, the original title deeds are in the custody of the Bank and when that be the case, how the respondents can transfer the property”. Recording these submissions, learned Presiding Officer, dismissed the IA, however, there was a direction to the respondents to file an undertaking affidavit to the effect that they will not alienate/sell, mortgage or create any encumbrance over the schedule properties mentioned in the schedule to IA 1626/2024 till the disposal of the OA.
As stated earlier, against this order, this appeal is filed.
Learned counsel for the appellant submitted that as directed by the learned Presiding Officer, undertaking affidavit was filed only in respect of part of the property and no affidavit is filed in respect of the land measuring 8 grounds and forming portion of the Lallakku Maniam land in R.S.No.3347/1 (New No. 3347/4 and 3346/13) comprising 2 cawnies, 7 grounds and 681 sq.ft. and in respect of independent Bungalow having a built up area of 4187.7 sq.ft. bearing door No.50/29, Madhavan Nair Road, Mahalingapuram, Chennai 600 034, together with the land area measuring 3619 sq.ft. comprised in plot No.3, R.S. No. 7, T.S.No.622/11 in block No. 36, Nungambakkam Village, Chennai.
This submission is refuted by the learned counsel for the respondents and the learned counsel for the respondents submitted that undertaking affidavit as directed by the learned Presiding Officer, DRT-II, Chennai has been filed in respect of the properties mentioned in the schedule to IA 1626/2024.
Therefore, the learned counsel for the appellant is directed to verify with the Registry of DRT-II, Chennai, as to whether the affidavit as directed by the learned Presiding Office in IA 1626/2024 was filed by the respondents.
The Registry is directed to call for a report from the Registrar, DRT-II, Chennai as to whether an affidavit of undertaking as directed by the learned Presiding Officer, DRT-II, Chennai, is filed or not.
Learned counsel for the appellant submitted that there was some e-mail communications between the first respondent and the prospective buyer Mr.Shankar with regard to sale of some of the properties. It is the submission that after passing the impugned order on 24.09.2025, the respondents are trying to sell the property. Therefore, he seeks protection. These e-mail communications filed now show that there is an attempt to sell the property concerned in the IA 1626/2024 between M.A.Srinivasan and the prospective buyer-Shankar. These communications have taken place after the impugned order was passed. In fact, the prospective buyer informed the first respondent that he is ready in all aspects to complete the registration upon furnishing the loan closure formalities letter from the Bank.
In view of the order passed by the learned Presiding Officer, DRT-II, Chennai directing the respondents to file undertaking affidavit that they will not alienate/sell, mortgage or create any encumbrance over the schedule properties mentioned in the schedule to IA 1626/2024 till the disposal of the OA, this Tribunal re-iterates that such an affidavit should be filed if not already filed and the respondents shall not alienate/sell, mortgage or create any encumbrance over the schedule properties mentioned in the schedule to IA 1626/2024 till the disposal of the OA.
In continuation of the order passed on 16.3.2026, this Tribunal heard the learned counsel for the parties today. During the course of the submission, Ld. Counsel for the petitioner / appellant produced another e-mail dated 24.2.2026 with regard to the sale of the third defendant’s property. Thus, he seeks that attachment before judgment is absolutely necessary in this case.
Learned counsel for R1 and R2 submitted that the respondents 1 and 2 had taken several efforts to settle the loan due with the appellant through OTS but that has not been materialized. The negotiation started earlier to giving undertaking before the DRT, only with a view to settle the loan amount through the proposed sale of the property directly to the bank. After giving undertaking to the DRT, no efforts has been made for selling the property. On 19.9.2025, the appellant-bank had sent an e-mail for further talks on OTS proposal. In pursuance of the e-mail sent, the e-mail dated 24.2.2026 was addressed by the second respondent to the proposed buyer with a copy marked to the appellant-bank. There is no efforts made to sell the property without informing the bank. There is no secret attempt to sale the properly but, only to settle the loan amount which started earlier to giving the undertaking before DRT.
Ld. Counsel for R3 submitted that the third respondent has given a specific undertaking that item No.2 of the schedule in IA 1626/2024 will not be sold / mortgaged / charged / encumbered / transferred or in any manner dealt with without the express written consent of the appellant bank. However, no such undertaking was given in the affidavit filed by R1 and R2. That undertaking is a simple undertaking not to alienate by sale / mortgage / charge / encumbrance in respect of the properties given in the schedule in IA 1626/2024.
From the submission of the learned counsel for the parties and the materials produced, especially, two e-mail communications produced before this Tribunal, there has been an attempt even prior to the undertaking given before the DRT with regard to the sale of one/ some of the properties mentioned in Schedule to IA 1626/2024.
These e-mail communications were not placed before the learned Presiding Officer, DRT-II, Chennai at the time of passing of the order. The learned Presiding Officer, DRT-II, Chennai, dismissed the application mainly on the ground that the appellant has not produced any strong evidence that reflects mala fide intention of the respondents to alienate the property given in the schedule. Other reasoning given is the undertaking affidavit filed by the respondents.
In view of the materials now produced in the form of e-mail communications, which show that there has been an attempt to sell the property, this Tribunal is of the view that the order passed in IA 1626/2024 has to be set aside and remitted to the Tribunal for fresh consideration of IA 1626/2024, in the light of the fresh materials produced. Accordingly, this appeal is allowed by giving direction to the learned Presiding Officer, DRT-II, Chennai to dispose the IA 1626/2024 in the light of the fresh materials produced and to be produced during the hearing. Till the disposal of IA 1626/2024, both parties are directed to adhere to the undertaking given stating not to sell / mortgage/ charge/encumber the properties in any manner, given in the schedule to IA 1626/2024.
Accordingly, this appeal is allowed. The learned Presiding Officer, DRT-II, Chennai, shall dispose the IA 1626/2024 on merits and in accordance with law without being influenced by any of the observations made in this order. Parties shall bear their own costs. Pending IAs, if any, shall stand closed.