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TMI Blog2015 (3) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence. If at this stage, the Bank is allowed to proceed against the property and ultimately the petitioner’s pleas succeed, he would have been prejudiced irrevocably. As against this, the bank is in possession of the suit property and is also the decree holder to the tune of ₹ 35,62,112/-. If the mortgage transaction is held to be genuine, it would be free to proceed against it. The proceedings under Article 226 of the Constitution of India are discretionary and meant to reach out wherever the justice of the case demands a particular direction. The courts have discretion to issue such orders ex debito justitiae. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and filed an application before the Debt Recovery Tribunal (DRT). The bank contended that the petitioner had deposited a sale deed dated 26.05.2003 and created an equitable mortgage. The Sale deed was executed by Ms. Manjeet Kaur in favour of one Divender Pal Singh. It was also alleged that the mortgager had deposited the copy of the Sale deed dated 30.10.1958 in favour of Mr. Hari Singh, agreement to Sell, General Power of Attorney, Special Power of Attorney, Receipt and Will all dated 10.4.1990 executed by Mr. Hari Singh in favour of Mrs. Manjeet Kaur. According to the bank, the borrower was M/s. R.P.S. Oil Company, and the mortgage was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.O) proceeded, pursuant to application of the bank, to take steps for recovery of the decreed amount. The RO was not subject to any restraint order. He therefore, issued an order, rejecting the petitioner s objections. That order became the subject matter of further Appeal bearing No.5/2014 to DRT. Eventually, the petitioner moved the DRAT against the order of DRT. In an application restraint of the proceedings before the RO was sought to be obtained. The impugned order of DRAT declined the application. 4. It is contended that in this case the petitioner has consistently been approaching the concerned authorities at all appropriate stages. Learned counsel firstly contended that the petitioner s genuineness as to his complaint about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atus quo in respect of the suit property was ordered at the initial stage. However, District Judge was constrained and did not issue any order staying the DRT or recovery proceedings perhaps correctly so having regard to the fact that the DRT and the RO. under the SARFAESI, are independent statutory authorities against whom, in the absence of an independent substantive action, no direction could have been made. Nevertheless, the fact remains that in the circumstances of this case, the petitioner has all along been claiming to be a victim of fraud. In Mardia Chemical Ltd. vs. Union of India (2004) 4 SCC 311 the Supreme Court held that despite the bar contained in the SARFAESI, in exceptional instances wherever fraud is alleged a suit is appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree holder to the tune of ₹ 35,62,112/-. If the mortgage transaction is held to be genuine, it would be free to proceed against it. The proceedings under Article 226 of the Constitution of India are discretionary and meant to reach out wherever the justice of the case demands a particular direction. The courts have discretion to issue such orders ex debito justitiae. The Supreme Court (though in a different context) in Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425 -while considering the provisions of the Code dealing with the trial of suits- that: Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after recording the evidence of the parties. In any event, the final judgment shall be delivered on or before the 15.09.2015. The respondent/Bank is hereby restrained from proceeding further the recovery of the amounts stated, due claimed against the petitioner till final judgment is delivered. It is however at liberty to do so in the light of the final judgment of the DRT against the original borrower. Its action to proceed against the subject property shall be determined having regard to the outcome of the suit. The Registrar General shall forward a Dasti copy of this order for due compliance to the concerned Judge hearing and trying CS 427/06(re-numbered Suit No. 106/2012, last heard by Mr. Ramesh Kumar, ADJ). 9. The writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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