(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) Heard learned advocate Mr.D.P. Kinariwala for the petitioner. The learned advocate for the petitioner has invited attention of the Court to order of the Debt Recovery Tribunal in Misc. Application No.33 of 2011 dated 27th January 2012, a copy of which is produced at Annexure 'E'. The learned advocate for the petitioner has invited attention of the Court to the latter part of the order, which reads as under:
"The learned advocate Shri K.G. Pandey appeared on behalf of the respondent bank submitted that the original title deed cannot be released as learned recovery officer has attached the property in question in execution of recovery certificate in the matter of Green Traders based on the judgment of this Tribunal dated 18.9.2006. The learned advocate Shri Jani submitted that this property is owned by three persons out of which Shri Ankit Agrawal is not the mortgagor. In view of the foregoing in the event of payment of the entire loan amount of house building loan account the bank is directed to issue a No Due Certificate and return the original title deed to the mortgagors and the bank is also directed not to take any steps under SARFAESI Act till 31.1.2012. The matter is fixed for further proceedings on 31.1.2012."
2. The learned advocate has then invited attention of the Court to an order passed by the Debt Recovery Tribunal on 3rd February 2012, a copy of which is produced at Annexure 'F', which reads as under:
"Shri Chetan Pandya, advocate on behalf of Shri Utkarsh Jani, advocate for the applicant, Shri Ankit Agrawal, representing the applicants in person an Shri K.G. Pandey, advocate along with Shri Kapoor, Chief Manager for the respondent Bank present. Pursuant to the order dated 31.01.2012, ld advocates of both sides have submitted that the DDS have been cleared and bank has also issued No Due Certificate in favour of the applicants/ borrower. Hence the original title deeds deposited with the Tribunal are hereby hand over to the borrower in presence of bank official. However, officer of the respondent bank has submitted that as per their Bank's guidelines the mortgagor/ borrower is supposed to sign the prescribed form, confirming receipt of the original title deeds. Shri Ankit Agrawal representing the applicants, has submitted that her mother is in Hospital followed by a surgery. In view of the same, Bank official is directed to visit the hospital to get her discharged in the prescribed form.
In view of the foregoing this Misc. Application is required to be disposed of. Hence I pass the following order.
ORDER Misc.
Application No.33/ 2011 is hereby disposed of without costs."
3. The learned advocate for the petitioner has submitted that despite the aforesaid two orders the Bank has issued notice dated 4th February 2012, a copy of which is produced at Annexure 'G', page 49.
Learned advocate Mr.U.I. Vyas for the Bank submitted that the property was attached in connection with some other loan transaction. The learned advocate for the Bank is not able to show that the loan which he is referring to, is different than the loan which is referred to in order dated 27th January 2012 of the Debt Recovery Tribunal mentioning that, " .. .. learned recovery officer has attached the property in question in execution of recovery certificate in the matter of Green Traders based on the judgment of this Tribunal dated 18.9.2006. .. .."
5. Until it is shown to this Court that the respondent-Bank has advanced loan on the same property twice, the Bank cannot be allowed to proceed further in the matter.
6. RULE.
Learned advocate Mr.U.I. Vyas waives service of rule on behalf of respondent no.1. Interim relief in terms of para 9(C). At the request of learned advocate Mr.U.I. Vyas rule is made returnable on 15th October 2012.
(RAVI R. TRIPATHI, J.) (N.V.
ANJARIA, J.) karim