stay of the order of DRT-II, Chennai

Source: DRAT ,chennai- 18th april 2011


A. Suganthi & Anr. Vs Karnataka Bank & 8 Ors.


MA 697/2010

The Ld. Counsel for the Appellants drew the attention of this Tribunal to the order of the Tribunal below and stated that a reading of the judgment and decree in OS No. 6310/1981 dated 19.1.1984 on the file of First Additional Judge, City Civil Court at Madras  and a reading of the compromise decree of the Hon’ble High Court of Madras in Appeal Suit No. 614/1984 would amply reveal that the 2080 Sq. ft. of the property was allotted to the share of A.V.K. Velusamy and Shri A.V.K. Velusamy and his six children including the appellants had become entitled to equal rights in the property and that they are all enjoying the property jointly and further that each of the appellants are entitled to 1/6^th of 2080 Sq. ft. of the property which was subject matter of O.S. No. 6310/1981 on the file of 1^st Additional Judge, City Civil Court at Madras. 

The Ld. Counsel stated that Shri A.V.K. Velusamy, the father of the appellants and two brothers of the appellants mortgaged the 2080 Sq. ft. property and their mortgage is improper as they could not have mortgaged the appellants’ share and that any proceeding based on such a mortgage would be illegal.  

The Ld. Counsel stated that the Ld. Recovery Officer notwithstanding the judgment and decree of the Civil Courts has brushed aside the claim of the appellants and that the Ld. Presiding Officer also erroneously dismissed the appeal by ignoring the fact that the competent civil courts have already established the rights of the appellant. 


 He stated that the Ld. Presiding Officer has not considered the pre-existing rights of the appellants and that if the operation of the order of the Ld. 


Presiding Officer is not stayed the appellants would be put to great hardship and suffering and that they will not be able to enjoy the fruits of the decree of the civil courts.  


The Ld. Counsel also prayed for an order of restraint upon the Ld. Recovery Officer from proceeding any further with the Recovery Certificate issued in this case.

The Ld. Counsel appearing on behalf of the respondent bank stated that the mortgage created with the bank has been property created and the application filed before the Ld. Recovery Officer by the appellants has been only filed for the purpose of delaying the recovery proceedings.  

The borrowers had earlier approached this Tribunal and also failed to comply with the conditional order passed by this Tribunal and equally the borrowers have also not abided by the orders of the Hon’ble High Court and stated that the bank has been making its efforts to recover public money and the borrowers have been successfully thwarting the same. 

 He stated that the order of the Ld. Recovery Officer and the Ld. Presiding Officer are proper and correct and prayed that the appeal may be dismissed and added that no orders in the nature of interim orders be granted in this case as the appellants have failed to make out a prima facie case in their favour.

Heard both sides.

In view of the facts and circumstances of the case, more particularly in view of the fact that the appellants became entitled to the property by virtue of orders passed by the civil courts and further in view of the fact that the applicants cannot be prevented from putting forth their case on the question of their ownership of 2/6^th share of the property, this Tribunal is driven to pass the following order: -

“Call this appeal for final hearing on 31.5.2011.  In the meanwhile there shall be stay of the operation of the order of the Ld. Presiding Officer, DRT-II, Chennai dated 18.11.2010 made in Appeal No. 03/2010 and equally there shall be a restraint upon the Ld. Recovery Officer from in any way proceeding any further pursuant to the Recovery Certificate issued in this case till 31.5.2011 in so far as the shares of the appellants are concerned.”