Oriental Bank Of Commerce vs State Bank Of India

Ranjit Singh, J

Oriental Bank of Commerce has filed this appeal against the order dated 15.1.2013 whereby their prayer for interim direction has been disposed of granting liberty to the Bank to proceed further with respect to the property in question in accordance with law. The appellant had approached the Tribunal below by filing an application against the respondent Bank under Section 17 of the SARFAESI Act. The prayer made in the S.A. was for setting aside/quashing the possession notice dated 22.11.2012 issued by the respondent State Bank of India with a further prayer not to proceed with the issue in furtherance of the said possession notice in respect of the property bearing No. J-107, North/Tomb side of the building measuring approx. 280 sq. yds. Village Kotla Mubarakpur, South Extension Part-I, New Delhi.

In this case, respondent No. 2 had availed certain credit facilities from the appellant Bank and this was secured by way of equitable mortgage of some property along with the property referred to above. The said facility was duly availed by respondent No. 2 from time-to-time. On account of default, the account was classified as NPA on 31.3.2010. Notice under Section 13(2) of the SARFAESI Act was issued on 19.4.2011. The appellant also obtained an order under Section 14 of the SARFAESI Act for taking the possession of the mortgaged property. It is urged that symbolic possession was taken by the appellant Bank on 7.12.2012. The sale notice was issued of the property in question and the same was put to sale on 22.1.2013.

Respondent No. 2 had filed S.A. (No. 156/2012), which is pending adjudication. No interim relief was granted by the Tribunal below and respondent No. 1 Bank, State Bank of India, took symbolic possession also of the property in question.

The appellant Bank, thereafter, served a legal notice dated 17.10.2010 on State Bank of India requiring it to explain the position. The respondent Bank has not disclosed the date of mortgage but has claimed that the property was mortgaged by Kamlesh Kumar Rastogi. As such both the Banks, are claiming their right over the property. Since the S.A. filed by the appellant Bank has been disposed of with direction for the Bank to proceed in accordance with law, the appellant Bank is seeking protection of its right as the respondent State Bank of India has already sold the property.

I have heard the Counsel for the parties. Notice was also issued to respondent Nos. 2 and 4. The Counsel for respondent Nos. 2 and 3 would explain that the property mortgaged with State Bank of India is different than the property mortgaged with the appellant Bank. The Counsel for the appellant Bank, however, maintains that the property which has been sold by respondent No. 1 Bank was mortgaged with the appellant Bank. Since the property has already been put to sale and the right of the appellant Bank is under adjudication in the S.A. filed by it, there is hardly any necessity of granting any interim relief to the appellant at this stage. Since the sale has been effected by the respondent SBI Bank and if the appellant Bank succeed in establishing its rights, the Tribunal below would always be able to balance the equity by ensuring the return of amount from the respondent Bank if otherwise, it is found clue to the appellant Bank. In view of above discussion no the case for interference is made out and the appeal is dismissed.

Copy of this order be furnished to the parties as per law.