1. Heard learned Counsel for the parties.
2. Sale of the property was ordered by way of interim measure while dealing with the appeal as against interlocutory order passed by the DRT. Compromise was entered into between Bank of Baroda and SBBJ with respect to appropriating after sale proceeds of the property. It is not in dispute that the Appellants equitably mortgaged the property with SBBJ. However, there was some dispute whether the property in fact was also mortgaged with Bank of Baroda. The DRT has found that the property was mortgaged with Bank of Baroda also as second charge. The DRAT while passing the impugned order has observed that the Respondents No. 1 to 9 (Appellants herein) in this petition can avail the legal remedy available to them, in case both Bank of Baroda and SBBJ proceed against the mortgaged properties. The DRAT has directed as under:
26. In view of above discussion on all the relevant aspects of the matter, I dispose of the appeal with the following order:
(i) The Appellant-the BOB and the 10th Respondent - the SBBJ would be bound by the terms of compromise arrived at between them as per Miscellaneous Application No. 144/2008;
(ii) The title deed of four properties in question shall not be returned back by SBBJ to the mortgagors till outstanding dues of both these Banks (SBBJ & the BOB) are satisfied, the SBBJ having first charge over the sale proceeds of the same in the eventuality of the properties being sold.
(iii) there will be no embargo on the Petitioners herein who were Respondent No. 1 to 9 in appeal) to avail of remedy available under law against measures upon being taken by either of two Banks in regard to properties in question."
3. It is apparent from para 26 that there was no embargo on the Appellants to avail the remedy available under law against measures being taken by either of two Banks in regard to properties in question.
4. Mr. Mahendra Singh, learned Counsel appearing on behalf of the Appellants has submitted that the order finally created second charge in favour of Bank of Baroda. Such an order could not have been passed by way of interim measure.
5. Mr. Rajendra Salecha, learned Counsel appearing on behalf of Bank of Baroda has pointed out that the OA under the Securitisation and Reconstruction of Financial Assists and Enforcement of Security Interest Act, 2002 has already been preferred by the Appellants with respect to one of the properties. It is open to take the legal recourse as observed by the DRAT and to take all the defenses which may be available to them.
6. Mr. G.K. Garg, Sr. Advocate assisted by Ms. Anita Agarwal, appearing on behalf of SBBJ has submitted that equitable mortgage of SBBJ is not disputed. Thus, it is having right to sale the property.
7. After hearing learned Counsel for the parties, we find that since there is agreement between the Appellants as well as the Bank of Baroda, the plea whether there was second charge of the Bank of Baroda or not, can be raised in the appropriate proceedings by the Appellant afresh. The compromise was entered into between Bank of Baroda and SBBJ with respect to sale of the property. The DRAT has considered various communications etc. and thereafter, reached to the conclusion. The property was admittedly equitably mortgaged with the SBBJ. Thus, property is liable to be sold. It is only a question of appropriation of sale proceeds. As agreed between the Appellants as well as Bank of Baroda that this aspect can further be gone into in the appropriate proceedings as observed by the DRAT. We are not inclined to interfere with the impugned order.
8. Consequently, the appeal is here by dismissed.
