Sri. T. Purushothama vs M/s. Deutsche Post Bank Home Finance Ltd., Mr. Vishwanath V. and Mr. V.K. Murthy

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 11.12.2009 passed in C. Misc. No. 1578/2009 impugned at Annexure-A to the petition. At the outset, it is necessary to mention that the petitioner as well as respondents No. 2 and 3 are claiming right, title and interest in respect of the property bearing No. 19, Khatha No. 165/182 formed in Sy. No. 56/1B, Mohammed Sab Palya, Jarakabandekaval Village, Yelahanka Hobli, Bangalore North Taluk which is presently situate in Balaji Layout, 1st Cross, Ward No. 3 Byatarayanapura CMC. In that view, while considering the correctness or otherwise of the order in C. Misc. No. 1578/2009, this Court would not advert to consider the right between the petitioner and respondents No. 2 and 3 as on today. However, the only question for consideration is as to whether in such circumstance the order passed u/s 14 of the Securitization Act would be sustainable.

In order to consider this aspect, it is to be noticed that the respondents No. 2 and 3 no doubt have mortgaged the said property in favour of the respondent No. 1 under the transaction of the year 2006. The respondent No. 1 therefore has sought to take further steps with regard to recovery of the loan and as such the; proceedings u/s 13 of the Securitization Act was initiated and ultimately in order to take possession of the property, proceedings u/s 14 of Securitization was filed before the Chief Metropolitan Magistrate in C. Misc. No. 1578/2009. The Magistrate by the impugned order has permitted the respondent No. 1 to take possession of the property.

In a normal circumstance, where there would be no dispute with regard to title to the property, the bank would have been justified in proceeding further. In the instant case, it is seen that prior to action being initiated by the respondents u/s 14 and the order being passed by the Magistrate, the petitioner herein had filed a suit in O.S. No. 1173/2008 to which the respondent No. 2 is a party. In the said proceedings, the issue relates to the same property to which the petitioner claims title and has sought for injunction against the defendants therein including the respondent No. 2. In such circumstance, when the title is yet to be decided by an appropriate forum, if the respondent No. 1 is permitted to take possession of the property by exercising its right under the Securitization Act, prejudice would be caused to the petitioner, if ultimately the petitioner is able to establish his right Hence, to the said extent the order impugned herein would not be sustainable.

Having arrived at the said conclusion, it is also to be noticed that the suit in O.S. No. 1137/2008 has been instituted seeking for the relief of permanent injunction. However, in view of the subsequent development and there being challenge to the title of the petitioner, it would be open for the plaintiff to amend the suit seeking for declaration of his title over the property. In the said suit, it would also be open for the respondent No. 1-Bank to seek impleadment. Thereafter, the Court below will decide the right, title and interest in respect of the property on the evidence that would be tendered before it without reference to the proceedings relating to the securitization Act. All contentions of the parties relating to title are left open to be agitated before the Court below. In that view of the matter, the impugned order dated 11.12.2009 Annexure-A is quashed.

In terms of the above, the petition stands disposed of.