THE SOUTH INDIAN BANK LTD. vs BANK OF INDIA
- Court
- Gujarat High Court
C/SCA/4528/2025 JUDGMENT DATED: 26/10/2026
(GJHC240233902025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.4528 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE Sd/-
=============================================
Approved for Reporting Yes No
✔
=============================================
THE SOUTH INDIAN BANK LTD.
Versus
BANK OF INDIA
=============================================
Appearance:
MR. JAINISH P SHAH(7033) for the Petitioner(s) No. 1
MR ANAND B GOGIA(5849) for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 26/10/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. With the consent of the learned advocates appearing for
the respective parties, the matter is taken up for final hearing
and is being finally disposed of by this judgment today.
2. Rule . Learned advocate Mr.Anand B. Gogia waives
service of notice of Rule on behalf of the respondent-Bank.
3. The petitioner-Bank, by way of the present writ petition,
has challenged the order dated 13.11.2024 passed by the
Debts Recovery Appellate Tribunal, Mumbai (DRAT) dismissing
Appeal No.119 of 2009 preferred by the petitioner-Bank against
the judgment dated 29.01.2009 passed by the Debt Recovery
Tribunal-I, Ahmedabad (DRT-I) which, inter alia , confirmed the
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order dated 28.03.2008 passed by the Recovery Officer, DRT-I,
Ahmedabad, in Recovery Proceedings No.1828 arising out of
Original Application No.420 of 2002 filed by the Bank of India
against M/s.Shree Plastics and others.
4. Vide order dated 28.03.2008, the Recovery Officer, DRT-I,
Ahmedabad, rejected the application at Exhibit T/39 filed by
the petitioner-Bank, whereby specific objections were raised
against the attachment and auction of the property bearing
Flat No.B-504, Pushparaj Towers, Jodhpur Tekra, Thaltej,
Ahmedabad, by the respondent-Bank of India. The Recovery
Officer dismissed the said application. It was the case of the
petitioner-Bank that the property in question had been
mortgaged in its favour by way of an equitable mortgage
through the deposit of title deeds as well as Memorandum of
Deposit of Title Deeds dated 15.02.1999.
5. One Mr. Laljibhai M. Patel and Mrs.Parvatiben L. Patel had
availed of a housing loan of Rs.6.35 lakh from the petitioner-
Bank for the purchase of a new flat. The said loan was
sanctioned vide a sanction letter dated 13.02.1999.
6. The property bearing Flat No.B-504, Pushparaj Towers,
Jodhpur Tekra, Thaltej, Ahmedabad, was mortgaged in favour
of the petitioner-Bank by way of an equitable mortgage
created through a Memorandum of Deposit of Title Deeds
dated 15.02.1999, along with the deposit of the original title
documents pertaining to the said property.
7. As the housing loan availed of by the aforesaid borrowers
became overdue and remained unpaid, the petitioner-Bank
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instituted Civil Suit No.3003 of 2002 before the City Civil Court,
Ahmedabad, seeking recovery of Rs.9,00,088/- along with
further interest.
8. The petitioner-Bank also sought a decree for the sale of
the mortgaged property and appropriate directions for the
appropriation of the sale proceeds towards satisfaction of its
claim in the suit.
9. Simultaneously, the petitioner-Bank had also instituted
Original Application No.470 of 2001 before the Debt Recovery
Tribunal, Ahmedabad (DRT), against the borrower - Mr. Laljibhai
M. Patel, who was also a guarantor in respect of another
account maintained with the petitioner-Bank. The said Original
Application came to be decreed on 31.03.2008 and a recovery
certificate for a sum of Rs.2,43,66,312/-, together with simple
interest at the rate of 9% per annum with effect from
23.11.2001, came to be issued in favour of the petitioner-Bank.
10. It appears that the respondent-Bank had also initiated
recovery proceedings before the Debt Recovery Tribunal,
Ahmedabad, in respect of the dues of M/s.Shree Plastics and
others, a proprietary concern of Mrs.Parvatiben L. Patel.
Pursuant thereto, a recovery certificate came to be issued in
favour of the respondent-Bank, and Recovery Proceedings
No.1828 of 2008 were initiated before the Recovery Officer,
DRT-I, Ahmedabad. In the said proceedings, the Recovery
Officer, vide order dated 08.11.2005, attached various
immovable properties, including the property in question.
11. On 15.09.2006, the petitioner-Bank filed its objections at
Exhibit T-39 before the Recovery Officer, objecting to the
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attachment of the property in question on the ground that the
same had already been mortgaged in its favour. The
respondent-Bank filed its reply to the said objections on
05.01.2007.
12. Thereafter, on 15.03.2007, the petitioner-Bank filed a
pursis at Exhibit T-40 in the recovery proceedings, expressing
its no objection to the sale of the property in question, subject
to the condition that the amount claimed by the petitioner-
Bank in Civil Suit No.3003 of 2002, pending before the Civil
Court, Ahmedabad, be released to it on a priority basis out of
the sale proceeds. The petitioner-Bank further stipulated that
the balance sale proceeds be distributed between the
petitioner-Bank and the respondent-Bank in the ratio of 50:50,
having regard to the dues recoverable by the petitioner-Bank
pursuant to the decree in Original Application No.470 of 2001.
Thereafter, a public auction of the property in question was
conducted on 28.09.2007.
13. The respondent-Bank filed an application at Exhibit H-51
before the Recovery Officer, claiming entitlement to the entire
sale proceeds realized from the auction of the property in
question.
14. M/s.Paramjit Sales and Services Private Limited emerged
as the highest bidder by offering a sum of Rs.28.50 lakh. The
sale in favour of the said purchaser was confirmed by the
Recovery Officer on 31.10.2007. The entire sale consideration
was deposited, and possession of the property in question was
handed over to the purchaser.
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15. Subsequently, on 13.03.2008, the petitioner-Bank filed its
claim at Exhibit T-54 before the Recovery Officer, seeking
disbursement of the amount claimed in Civil Suit No.3003 of
2002.
16. The Recovery Officer, vide order dated 28.03.2008,
rejected the application at Exhibit T-39 filed by the petitioner-
Bank, principally on the ground that the dues claimed by the
petitioner-Bank had not yet been adjudicated and, therefore,
the petitioner-Bank, being a third party to the recovery
proceedings, had no right to claim any portion of the sale
proceeds realised from the auction of the property in question.
Being aggrieved by the said order, the petitioner-Bank
preferred Appeal No.29 of 2008 before the learned Presiding
Officer, Debt Recovery Tribunal-I, Ahmedabad, under Section
30 of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993.
17. The DRT-I, Ahmedabad, vide judgment dated 29.01.2009,
dismissed the appeal preferred by the petitioner-Bank,
primarily relying upon the decision of the Supreme Court in the
case of Allahabad Bank vs. Canara Bank, (2000) 4 S.C.C. 406.
18. Aggrieved by the said judgment, the petitioner-Bank
preferred Appeal No.119 of 2009 before the Debts Recovery
Appellate Tribunal, Mumbai (DRAT).
19. It appears that during the pendency of the appeal before
the DRAT, Mumbai, the civil suit instituted by the petitioner-
Bank, being Civil Suit No.3003 of 2002, subsequently
numbered as Summary Suit No.307 of 2022, came to be
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decreed in favour of the petitioner-Bank. The Small Causes
Court No.2, Ahmedabad, vide judgment and order dated
07.11.2023, directed the defendants to pay jointly and
severally to the petitioner-Bank a sum of Rs.6,35,000/-,
together with interest @ 9% per annum from the date of
institution of the suit i.e. 23.08.2002, until realisation.
20. The aforesaid subsequent development was brought to
the notice of the DRAT, Mumbai, during the pendency of
Appeal No.119 of 2009. However, the DRAT, Mumbai, vide
order dated 13.11.2024, dismissed the appeal preferred by the
petitioner-Bank.
21. Being aggrieved by the aforesaid order passed by the
DRAT, Mumbai, the petitioner-Bank has approached this Court
by way of the present writ petition.
22. Learned advocate Mr.Jainish P. Shah, appearing for the
petitioner-Bank, at the outset, has submitted that the DRAT,
Mumbai, has erred in dismissing the appeal. It is submitted
that the appeal has been rejected primarily on the ground that
the petitioner-Bank had not obtained a decree relating to
mortgage in Civil Suit No.3003 of 2002, which came to be
decreed on 07.11.2023, and that the decree merely directed
the defendants to pay a sum of Rs.6,35,000/- along with
interest. The Tribunal, accordingly, proceeded on the premise
that no charge had been created over the flat in question and
rejected the appeal on that basis.
23. Referring to the provisions of Section 73(b) and (c) of the
Code of Civil Procedure, 1908 (the CPC), learned advocate
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Mr.Shah has submitted that the petitioner-Bank, being a
decree-holder, was entitled to a share in the sale proceeds in
accordance with law. It is submitted that the DRAT, Mumbai,
while relying upon the decision of the Supreme Court in the
case of Canara Bank (supra) , failed to examine the
applicability of Section 73 of the CPC in the light of the
judgment and decree dated 07.11.2023 passed by the Small
Causes Court No.2, Ahmedabad.
24. It is further submitted that the decision of the Supreme
Court in the case of Canara Bank (supra) would not apply to
the facts of the present case, as the petitioner-Bank holds a
money decree in its favour. Learned advocate Mr.Shah further
contended that the judgment of Small Causes Court No.2,
Ahmedabad, establishes that the petitioner-Bank had a valid
mortgage over the property in question since 1999. It is urged
that, in view of the No Objection Pursis dated 15.03.2007 filed
at Exhibit T-40, the petitioner-Bank is entitled to a share in the
sale proceeds realised from the auction of the property.
Accordingly, it is prayed that the impugned order be quashed
and set aside and, if deemed necessary, the matter be
remanded to the DRAT, Mumbai, for fresh consideration.
25. Opposing the aforesaid submissions, learned advocate
Mr.Anand B. Gogia, appearing for the respondent-Bank, has
submitted that the impugned judgment and order passed by
the Tribunal does not warrant any interference by this Court, as
the same has been passed in accordance with law.
26. It is submitted that prayer clause 'B' of the plaint in Civil
Suit No.3003 of 2002, seeking relief in respect of the
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mortgaged property, was specifically rejected by the Civil
Court. It is submitted that the petitioner-Bank has failed to
establish its entitlement to enforce the alleged mortgage
against the property in question.
27. Learned advocate Mr.Gogia, has further submitted that at
the highest, the petitioner-Bank can claim to be a decree-
holder holding a money decree in its favour. According to him,
the provisions of Section 73 of the CPC would not come to the
aid of the petitioner-Bank in the facts of the present case,
particularly in view of the principles laid down by the Supreme
Court in the case of Canara Bank (supra) .
28. It is further submitted that the auction of the property in
question had already been conducted on 28.09.2007, much
prior to the judgment and decree dated 07.11.2023 passed by
the Small Causes Court, Ahmedabad. It is contended that the
respondent-Bank had a charge over the property in question,
as it had advanced a loan of Rs.25,00,000/- to M/s.Shree
Plastics, a proprietary concern of Mrs.Parvatiben L. Patel,
whereas the petitioner-Bank had advanced a housing loan of
Rs.6,35,000/- to the said borrowers.
29. Both the DRT-I, Ahmedabad, and the DRAT, Mumbai, have
placed reliance upon the decision of the Supreme Court in the
case of Canara Bank (supra) , more particularly Paragraph
No.55 thereof, and concluded that, as the petitioner-Bank had
neither established its entitlement as a decree-holder at the
relevant stage nor proved its claim to a charge over the
property in question, its claim to the sale proceeds was liable
to be rejected.
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30. In our considered opinion, the decision of the Supreme
Court in the case of Canara Bank (supra ) does not come to
the rescue of the respondent-Bank. The Supreme Court, in
paragraph No.55 of the said decision, has held as under :
“55. But under Section 73 CPC, sharing in the sale proceeds
(here, sale proceeds realised under the RDB Act) is
permissible only if a person seeking such share has obtained a
decree or an order of adjudication from the Tribunal and has
also complied with other conditions laid down under Section
73. In the present case, Canara Bank is not in a position to
invoke the principles underlying Section 73 CPC because it has
not yet obtained any decree or adjudication of its debt from
the Tribunal. Nor has it complied with other provisions
underlying Section 73 CPC. Hence no relief can be granted on
the basis of the said principles.”
31. The entire case of the petitioner before the DRT-1 and
DRAT, Mumbai, and before us, is premised on the provisions of
Section 73(1)(b), which is as under:
“ 73. Proceeds of execution-sale to be rateably
distributed among decree-holders. -
(1)Where assets are held by a Court and more persons than
one have, before the receipt of such assets, made application
to the Court for the execution of decrees for the payment of
money passed against the same judgment-debtor and have
not obtained satisfaction thereof, the assets, after deducting
the costs of realization, shall be rateably distributed among all
such persons:Provided as follows:-
(a)where any property is sold subject to a mortgage or charge,
the mortgagee or incumbrancer shall not be entitled to share
in any surplus arising from such sale;
(b)where any property liable to be sold in execution of a
decree is subject to a mortgage or charge, the Court may, with
the consent of the mortgagee or incumbrancer, order that the
property be sold free from the mortgage or charge, giving to
the mortgagee or incumbrancer the same interest in the
proceeds of the sale as he had in the property sold;”
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32. Section 73(1)(b) deals with the sale of property subject to
a mortgage or charge during the execution of a decree, and if
a property liable to be sold in execution of a decree is under a
mortgage or charge, the Court may order it to be sold free
from the mortgage or charge, after the express consent of the
mortgagee or encumbrancer. Thus, when such a sale takes
place with the mortgagee's consent, the mortgagee's security
interest shifts from the physical property to the sale proceeds.
Accordingly, on 15.03.2007, the petitioner-Bank filed a pursis
at Exhibit D-40 in the recovery proceedings, expressing its no
objection to the sale of the property in question, subject to the
condition that the entire amount claimed by the petitioner-
Bank in the civil suit be paid to it out of the sale proceeds
realised from the said property.
33. The petitioner-Bank consistently maintained before the
Recovery Officer as well as the Presiding Officer of the DRT that
it had advanced the Housing Loan in respect of the property in
question against the mortgage created in its favour vide
Memorandum of Deposit of Title Deeds dated 15.02.1999.
34. At this stage, it would be apposite to refer to the prayers
sought by the petitioner-Bank in Civil Suit No.3003 of 2002, as
reproduced by the Civil Court in its judgment and order dated
07.11.2023. The same are reproduced hereinbelow:
“Therefore, the plaintiff has filed this suit and prayed for (A)
decree of Rs.9,00,088/- with further interest at 17.50% p.a.
and additional @ 2% penal interest on Rs.8,77,734/- from the
date of the suit till payment/realization, (B) The Hon'ble Court
be pleased to order and decree the sale of the aforesaid
mortgaged property towards the satisfaction of the above
amount; and (C) Costs of this suit be awarded.”
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35. While answering to the issues Nos.1 to 5 and to the
mortgage deed, the Civil Court has held thus:
“14 Further, the defendant has taken the defence that there is
no signature of the defendant in exh.46 Memorandum of Title
Deed, but on perusal of the document exh.42, it appears that
the defendants have admitted all the terms and condition and
the defendants have voluntarily signed it. On perusing the
Interest Agreement at exh.44, the defendant no.1 has
voluntarily given consent to execute the not documents in
favour of the plaintiff Bank and the defendant no.1 has
voluntarily signed the said document. Therefore, the
arguments and the defence of the defendants that the
defendants have executed Mortgage Deed in favour of the
plaintiff Bank and they have not signed the document exh.42
can not be considered because in the documents at Exh.42 to
45 and exh.47, the defendants have voluntarily signed the
documents and given written consent and the defendants
have not proved that the signature is not of the defendants.
Therefore, the plaintiff has successfully proved the
documentary evidence produced by the plaintiff Bank.
15. So far as issue no.4 for limitation is concerned, the
plaintiff has filed the present suit on 20/8/2002. Looking to the
document which has been produce vide ex.54, the defendants
have voluntary agreed and signed in ex.54 and the
defendants have further admitted that the amount of
Rs.7,98,736/-plus interest of the plaintiff bank is due from
date 1/1/2002 and defendants have further admitted that the
aforesaid amount is due as on date 17/01/2002. The
defendants has signed the above acknowledgment of debt is
on date 18/01/2002 and the plaintiff has filed this suit on date
20/8/2002. Therefore, the suit of the plaintiff is within time
and the suit of the plaintiff is not barred by the limitation.
Hence, the defendants have failed to proved that the suit of
the plaintiff is barred by the law of limitation. Therefore, Issue
no.4 is negative.
16. Therefore, in view of my above discussion, the plaintiff
has proved that Housing Loan of Rs.6,35,000/- was granted to
the defendants and all the necessary documents have been
signed and executed by the defendants in favour of the
plaintiff Bank. The defendants have not denied the signature
made in these documents. Therefore, the plaintiff is entitled to
get the sum of Rs.6,35,000/- from the defendants.
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The plaintiff has produced original demand promissory
note at exh.43 in which the interest at 17.34% p.a is
mentioned, but as per the Section-34 of C.P.C., it is just and
proper to grant the interest at 9% p.a. on the said amount
from the date of the suit till recovery of the said amount from
the defendants. The plaintiff is not entitled to get the relief as
prayed in para.17(b) of the plaint. The plaintiff is entitled the
suit from the defendants. Hence, I answer issue no.1 and 2 in
the affirmative, issue no.3 in partly affirmative, issue no.4 in
the negative and I pass the following final order for issue no.5
in the interest of justice:-to the costs of
-ORDER:-
1. The plaintiff's suit is hereby partly allowed.
2. The defendants are directed to pay jointly and severally
to the plaintiff a sum of Rs.6,35,000/-Rupees Six Lakh Thirty
Five Thousand Only) with interest at the rate of 9% p.a.
thereon from the date of the suit i.e. 23.08.2002 till recovery
of the said amount from the defendants.
3. The defendants shall pay the costs of the suit to the
plaintiff as well as bear their own.
4. Decree to be drawn accordingly.”
36. Thus, the Civil Court declined to grant the relief sought by
the petitioner under paragraph No.17(b) of the plaint, which
reads as reproduced hereinabove, and precisely so since the
property in question was already sold.
37. The respondent-Bank as well as the DRAT have erred in
construing prayer clause 'B' of the plaint so as to disentitle the
petitioner-Bank from claiming a share in the sale proceeds of
the property in question. The Tribunals proceeded on the
premise that, although the petitioner-Bank had sought relief in
respect of the mortgage created over the property in question,
it had failed to secure such relief before the Civil Court, as
prayer clause 'B' had been rejected.
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38. In our opinion, the DRAT failed to appreciate that prayer
clause 'B' in the civil suit specifically pertained to the sale of
the mortgaged property towards satisfaction of the amount
claimed by the petitioner-Bank. Since the property in question
had already been sold in the course of the recovery
proceedings, there remained no occasion for the Civil Court to
direct the sale of the mortgaged property. It is in this context
that the Civil Court declined to grant the relief sought under
prayer clause 'B'.
39. The DRAT has erred in appreciating the nature and scope
of the relief sought in the civil suit, the effect of the judgment
and decree passed by the Civil Court, and the applicability of
Section 73 of the CPC.
40. The petitioner-Bank is claiming a share in the sale
proceeds on the basis of the mortgage created in its favour
and had consistently raised such a claim before the Recovery
Officer as well as the Presiding Officer of the DRT. The
authorities failed to appreciate that the petitioner-Bank had a
valid mortgage over the property in question. The existence of
the mortgage is supported by the judgment and decree passed
by the Civil Court, wherein the borrowers specifically admitted
having executed the mortgage documents in favour of the
petitioner-Bank. The said admission formed part of the factual
basis on which the Civil Court adjudicated the claim of the
petitioner-Bank.
41. In view of the foregoing discussion, the present writ
petition succeeds and is allowed . The impugned order dated
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13.11.2024 passed by the DRAT, Mumbai, is hereby quashed
and set aside. The matter is remanded to the DRAT, Mumbai,
for fresh consideration of Appeal No.119 of 2009. The DRAT
shall examine the validity of the order dated 29.01.2009
passed by the Presiding Officer, DRT-I, Ahmedabad, as well as
the order dated 28.03.2008 passed by the Recovery Officer,
DRT-I in the light of the observations made hereinabove and in
accordance with law.
42. Considering that the matter has remained pending for
more than 18 (eighteen) years, we expect the DRAT, Mumbai,
to decide and dispose of the appeal preferred by the petitioner-
Bank, preferably within a period of 06 (six) months from the
date of receipt of a copy of this judgment. RULE is made
absolute accordingly.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(NISHA M. THAKORE,J)
MAHESH/40
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