Dismissed

Deogiri Nagari Sahakari Bank Ltd. Aurangabad Thr Br Manager v. Atul Ratilal Chengede and Ors.

Bombay HC16 Jan 2012WP/438/2012

Case brief

AI extract

What is this about?

The Bank filed a Writ Petition challenging a Cooperative Appellate Court order directing it to deliver title deeds of a flat. The Bank argued the mortgagors were liable for other loans as certificate debtors. The court dismissed the petition, observing the housing loan was repaid and entry proceedings for other loans were pending.

What did the court decide?

The Writ Petition is dismissed. The impugned order directing the petitioner to deliver title deeds stands sustained.

Deogiri Nagari Sahakari Bank Ltd. Aurangabad Thr Br… — Banking and Recovery | Bombay HC (2012)

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W.P.No.438/12

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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WRIT PETITION NO. 438 OF 2012

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.S.V.Natu, advocate holding for Mr.A.R.Joshi,
advocate for the petitioner.

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Mr.Sushil Nimbkar, advocate for Respondent Nos.1 to 4.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 16.01.2012.

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PER COURT :

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Heard.

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The present Respondents have filed a dispute U/s 91 of the Maharashtra Cooperative Societies Act, seeking directions against the present petitioner Bank to redeem the mortgage in respect of the suit plot and to execute release/reconveyance deed with further relief of injunction. Along with the dispute the present Respondents also filed an application for interim orders seeking injunction against the petitioner from initiating any action in pursuance to the mortgage deed dated 20.6.2007, with further directions to deliver the title deeds of the said flat. The application was partially rejected by the Cooperative Court. Aggrieved thereby, the disputants preferred an appeal before the Cooperative

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W.P.No.438/12

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Appellate Court. The Cooperative Appellate Court allowed the appeal, directing the present petitioner to deliver the original title deeds in respect of flat No.3 to the disputants. The said order is assailed in the present Writ Petition.

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Mr.Natu, learned counsel for the petitioner Bank submits that the Respondents who had mortgaged the property is also certificate debtor in respect of loan of other borrowers. In such circumstances, the petitioner would have right to retain the title deeds and deal with the said property. As the Respondents are also guarantors in their personal capacity in respect of other loans and recovery certificate to that effect has been issued, the petitioner has every right to attach the said flat for recovery of the other loan. The petitioner, interalia, would also be entitled to retain the said title deeds. By an interim order, the same could not have been directed to be delivered back to the disputants.

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The learned counsel for the Respondents submits that mortgage in question was a simple mortgage. The petitioner Bank has also accepted that the purpose for which the property was mortgaged i.e. the housing loan has been satisfied by the disputants. As such, the petitioner do not have any right, title or interest nor any authority to withhold the said title deeds. It is right of the disputants to get back the said title deeds as the total amount has been repaid.

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W.P.No.438/12

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From the perusal of the judgment impugned in the present Writ Petition, it is manifest that the subject flat No.3 mortgaged in favour of the petitioner was for the purpose of housing loan. It is not disputed by the petitioner that the said housing loan has been completely repaid by the disputants. In such circumstances, the petitioner Bank would not be in a position to claim any right pursuant to the said mortgage. So also will have no right to claim retention of the said title deeds.

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Regarding the submissions of the learned counsel for the petitioner that the present Respondents/disputants are also liable to repay the loan in respect of other borrowers to which the present Respondents were guarantors or are certificate debtors and the right of the petitioner to proceed against this property for realisation of the other loans can not be a matter of debate. If the petitioner Bank shows that the present Respondents/disputants concerned with Flat No.3 are guarantors in their personal capacity or borrowers for some other loan or are certificate debtors/judgment debtors then the petitioner Bank can proceed in respect of the said Flat No.3 independently as per law. The Respondents herein would be entitled to put forth their say if so advised.

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In view of the above, the impugned order needs no interference. The Writ Petition is disposed of with aforesaid

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W.P.No.438/12

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observations and directions.

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(S.V.GANGAPURWALA,J.)

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Dt.16.01.2012. asp/office/wp43812

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W.P.No.438/12

Deogiri Nagari Sahakari Bank Ltd. Aurangabad Thr Br Manager v. Atul Ratilal Chengede and Ors.

Case brief

What is this about?

What did the court decide?

Deogiri Nagari Sahakari Bank Ltd. Aurangabad Thr Br Manager v. Atul Ratilal Chengede and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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