16-1-06 ORDER IN SCA 1333/05

SCA/1333/2005 2/4 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 1333 of 2005
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SPAN MEDICALS LTD. - Petitioner(s)
Versus
ORIENTAL BANK OF COMMERCE - Respondent(s)
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Appearance :MR S.N.SOPARKAR,SR.ADVOCATE WITH MR.AMAR N BHATT for the Petitioner.
MR MIHIR J.THAKORE, SR.ADVOCATE WITH MR.KM PARIKH for the Respondent.

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CORAM :
HONOURABLE MR.JUSTICE DN PATEL
Date : 16/01/2006
ORAL ORDER

Rule. Learned advocate Mr.Ketan Parikh waives service of Rule on behalf of the respondent.

2. This petition has been preferred against the action initiated by the respondent of taking over possession of the property bearing F.P.No.768 of T.P. Scheme No.3/5 situated near Parimal Railway Crossing, Ellis bridge, Ahmedabad.

3. Learned Senior Advocate Mr.S.N. Soparkar appearing for the petitioner submitted that the Final Plot No.768 of T.P. Scheme No.3/5 admeasuring 3065 square metres of land, out of which, 2165 sq.metres of land was mortgaged with the respondent bank and, therefore, the respondent cannot issue a notice (Annexure â¬SHâ¬ý to the memo of the petition) to take over possession of the whole Final Plot No.768, which is admeasuring 3065 square metres. Thus, the notice issued by the respondent bank includes the notice for the property, which was never mortgaged to the respondent bank. In the impugned notice, out of Final Plot No.768, 900 square metres of land ought to be continued with the petitioner and the respondent bank is entitled only for 2165 square metres of land of F.P. No.768.

4. Learned counsel appearing for the petitioner has also pointed out clauses of mortgage deed and pointed out that only 2165 square metres of land was given as security and, therefore, notice dated 31st January, 2005 (Annexure â¬SHâ¬ý to the memo of petition), which is for the whole final plot No.768 deserves to be quashed and set aside.

5. I have heard the learned counsel Mr.Mihir Thakore appearing for the respondent bank, who has pointed out that the petitioner has mortgaged the property bearing Final Plot No.768 with the respondent bank. The title deeds of the Final Plot are with the respondent bank. As the litigation is pending before the Urban Development Tribunal for 900 square meters of land, the said portion of the land was not mortgaged with the respondent bank.

6. Learned advocate for the respondent has also drawn attention of the Court at page no.82 of the present petition and pointed out that Final Plot No.768 admeasuring 3065 square metres of land has been marked, so that 900 square metres of land can be separated. Similarly land of 2165 square meters has also been separated, which has been mortgaged with the respondent bank and, therefore, respondent bank has all power, jurisdiction and authority to issue Notice under section 13 of the Act,2002 and to take over possession of the disputed property, which was mortgaged with the respondent bank. Demarcation is already on the record of the case (As per page-80 of the memo of the petition).

7. Having heard the learned counsels appearing for both sides and looking to the facts and circumstances of the case, in my opinion, the petitioner has mortgaged land bearing Final Plot No.768 admeasuring 2165 square metres and remaining 900 square metres of land was under Urban Land (Ceiling and Regulation) Act, 1976. As per the mortgage deed, the land admeasuring 2165 square metres was mortgaged by the petitioner to the respondent bank, which is an admitted fact, looking to the records of the case. Looking to the mortgage deed, it appears that the respondent bank can issue Notice only for 2165 square metres of the land. Out of total land of the Final Plot No.768, 900 square metres of land was never mortgaged by the petitioner to the respondent bank. In view of this fact, the notice (which is at Annexure â¬SHâ¬ý to the memo of the petition) shall be confined only to 2165 square metres of land in the Final Plot No.768 of T.P.No.3/5. Thus, the respondent bank is entitled to get possession of land bearing No.768 remeasuring 2165 square metres of land. Rule made absolute to the aforesaid extent with no order as to costs.
(D.N.PATEL,J)
dipti