(1) By way of the present Revision Application filed under Section 115 of the Code of Civil Procedure, 1908, the original plaintiff-Bank of India has challenged the order dated 8th October, 1999 passed below order Exhibit-43 in Civil Suit No. 6263 of 1993. By order dated 3.12.1999, after issuance Rule in the matter, the matter was expedited. Pursuant to issuance of Rule, respondent No. 2 i.e. Manek Chowk Cooperative Bank Ltd. appeared through its advocate. It was brought on record that the Manek Chowk Cooperative Bank Ltd. had been merged with Abhyuday Cooperative Bank Limited. The applicant had filed Civil Application No. 9709 of 2012 and prayed for impleadment of Abhyuday Cooperative Bank Limited as opponent No. 3. The said Civil Application was allowed by order dated 30th August, 2012 and accordingly, Abhyuday Cooperative Bank Limited has been shown as opponent No. 3 in this Revision Application. Mr. Ravindra Shah is appearing for all the opponents including Abhyuday Cooperative Bank Ltd.
(2) The brief facts of this case are as under:
2.1 That the present applicant i.e Bank of India filed Civil Suit No. 6271 of 1992 in the Court of City Civil Judge at Ahmedabad against mortgagees and prayed for a money decree to the tune of Rs. 1,17,98,906.58P. with interest @ 24.75% per annum. The suit was filed on the ground that the mortgagees, who had availed loan facility by depositing the original title deed of the disputed property, have not repaid the same.
2.2 It appears from the records that the same mortgagees produced xerox copies of the title deeds of the same property which were mortgaged with Bank of India and availed loan from Manek Chowk Cooperative Bank Ltd. Manek Chowk Bank filed Lavad Suit No. 7066 of 1992 against the original mortgagees since the mortgagees did not repay the amount of loan. The said suit came to be decreed by judgment and award dated 29.01.1993 and decree of an amount of Rs. 33,44,369/- was passed against those mortgagees with interest @ 19% per annum with costs of Rs. 5,000/-. Pursuant to the award and decree, the Recovery Officer, appointed by the Bank, had given an advertisement about selling of property in dispute. When the present applicant i.e Bank of India came to know about the award passed by Board of Nominee, filed a Regular Civil Suit No. 6263 of 1993 in the Court of learned City Civil Judge at Ahmedabad and made several prayers. In the said suit, opponent No. 2 i.e Manek Chowk Cooperative Bank Ltd. was a party. Ad interim relief was granted by the City Civil Court on 29.1.1993 which was modified after hearing both the parties on 6.3.1995 which reads as under :
“It seems that considering the facts of the case earlier order dated 20.11.1993, requires to be modified as under :-
“The property in question which is more particularly described in schedule of the plaint, may be sold by defendant no. 1 by public auction to the highest bidder at the best price available in the presence of officers of plaintiff as well as defendant no. 2 and from the amount of the price of the highest bidder expenses for the sale and of watchman for preserving the property by defendant no. 2 be deposited and be paid to defendant no. 2 and 60% of the rest of the sale proceeds be deposited with Ellisbridge of plaintiff's bank and 40% of the amount be deposited with defendant no. 2 (Manek Chowk Cooperative Bank Limited) and the said amount of deposit to be kept in a long term fixed deposit in the joint names of plaintiff and the defendant no. 2. It is also made clear that the interest which can be fetched from the said deposit amount will be added according to the normal rules of law to the bank till this suit is finally decided.
Further order regarding the aforesaid auction amount will be passed at the final decision of the suit ”
2.3 The Civil Suit No. 6271 of 1992 filed by the present applicant i.e. Bank of India was pending before the City Civil Court against the original mortgagees which came to be transferred in the year 1995 before the Debt Recovery Tribunal having jurisdiction to decide money suits filed by or against Banu etc. During the pendency of the suit before the Debt Recovery Tribunal, the present applicant filed an application Exhibit 36 praying that the order which was passed on 6.3.1995 be modified and the amount which was paid to the Manek Chowk Cooperative Bank Ltd. i.e. 40% of the amount collected by auctioning the disputed property shall be paid to the applicant- Bank, which prayer was rejected. On 26.5.1999, the Debt Recovery Tribunal decreed the suit filed by the Bank of India against the original mortgagees.
2.4 Having got the decree in their favour, the Bank of India preferred another application Exhibit-43 and prayed that as under :
“It is, therefore, prayed as under:-
The Hon. Court be pleased to order that any amount lying with defendant No. 2 by way of sale proceeds with interest accrued thereon either by way of fixed deposit or appropriated pursuant to the order of the Hon. Court dated 26.3.1999 be paid forthwith to the plaintiff bank along with interest till date of payment.
To dispose off the present Civil Suit No. 6263/93 by passing an appropriate order as the said suit has become infructuous.
Such other and further relief as deemed fit and proper be granted.
Costs of this application be awarded.”
2.5 The application was opposed by respondent No.
2 by filing reply Exhibit-48.
2.6 After hearing both the parties, the learned City Civil Judge, Court No. 11, Ahmedabad dismissed the said application by impugned order dated 3.12.1999 for the reasons recorded therein.
(3) Mr. A.S. Vakil, learned advocate appearing on behalf of the applicant has submitted that the City Civil Court ought to have considered application Exhibit-43, since the suit filed by the applicant- Bank was decreed, there was no reason for the trial Court to dismiss the application. He has submitted that the original mortgagee had produced original conveyance-deed before the Bank of India i.e. the present applicant, and xerox copy of the same was produced before the opponent No. 2-Bank, applicant- Bank is entitled for 40% amount lying with opponent No. 2/3-Bank. In support of his submission, he has relied upon Section 48 of the Transfer of Property Act, 1982. He has submitted that since suit filed by the Bank of India is decreed by competent Tribunal and there is no challenge, the applicant-Bank is entitled for the prayer made in application Exhibit-43.
(4) On the other hand, learned Advocate Mr. Ravindra Shah has opposed this application and submitted that the Trial Court has not committed any error which would call for interference by this Court under Section 115 of the Code of Civil Procedure. He has further submitted that the prayer of the applicant in the suit is to declare the recovery certificate dated 13.4.1993 issued by the Registry Board of Nominees, pursuant to the decree passed in Lavad Suit No. 1066 of 1992, in favour of opponent- Bank is void and not binding to the plaintiff/applicant-bank, and without adjudicating with regard to legality and validity of decree passed by Board of Nominees in favour of opponent-Bank this is not the stage to grant such application. It was argued by Mr. Shah that if the application, as prayed for by the applicant, is allowed, the same would amount to passing a decree at this premature stage.
(5) Heard learned counsel for the parties and I have gone through the order passed by the Trial Court below Exhibit-43. It is true that there are two decrees passed by different Tribunals with regard to the same property in favour of two different banks. It is also true that the decree passed in favour of the present applicant by Debt Recovery Tribunal is not challenged by the present opponent No. 2 Manek Chowk Cooperative Ltd. The Bank of India i.e. present applicant has challenged recovery certificate issued pursuant to the award passed in favour of opponent No. 2-Bank by Board of Nominees Court.
(6) In my opinion, when the order dated 6.3.1995 was passed after hearing both the parties, which has become final and when it has been observed by the Court that further order with regard to the auction amount shall be passed at the final decision of the suit, the order passed by the Trial Court does not require any interference. The trial Court has rightly observed that if the application is allowed, it would virtually execution of the decree passed by Debt Recovery Tribunal in favour of the applicant without any adjudication upon the legality and validity of the certificate issued by the Registrar pursuant to the award passed by the Board of Nominees.
(7) In view of the aforesaid, the present application is dismissed. Rule is discharged.
(8) The suit is pending since 1993, it would be in the fitness of things that the suit is heard and decided as early as possible before 31st March, 2013. The City Civil Court is directed to dispose of the Civil Suit No. 6263 of 1993 before 31st March, 2013.
Ashish N.
(A.J. DESAI, J.)