The court established that a creditor's agreement to receive money from a third party with the promise to release the charged property creates an obligation to return the money if the property sale does not take place.

PRADEEP NANDRAJOG, J.

1. M/s Morgan Tetronics Ltd. (respondent No.2) had availed a credit facility from Punjab & Sind Bank (respondent No.1). As per the parties, P.V.Khullar (respondent No.3) manages the company, and the loose expression we understand to mean that he is the Managing Director of the company. Nirmal Kanta (respondent No.4), had mortgaged her property D-49, Sector-7, Noida and 225 SBI Colony, Paschim Vihar to secure the debts payable. Two other companies named Pragya Overseas Pvt. Ltd. and M/s Shaloo Exports, stated to be the group companies of respondent No.2, are also stated to have availed credit facilities.

2. The dues became sticky. The respondent No.1 initiated proceedings under SARFAESI Act. The borrowers challenged the action taken, resulting in SA No.61/2012 being registered before the Debts Recovery Tribunal.

3. During the pendency of the proceedings the petitioner was approached by respondents No.3 and No.4 with a request to purchase property No.225, SBI Colony, Paschim Vihar, New Delhi and duly informed him that the property was mortgaged with the respondent No.1 bank. Petitioner met the officers of the bank. A consensus emerged between the bank, the petitioner as also respondent No.3 and No.4 that the property could be sold for Rs.7 crores.

4. On January 08, 2012, the lawyer of the bank informed the petitioner as also respondents No.2 to No. 4 that a tripartite agreement with the bank, borrower and proposed buyer shall be executed to give effect to the agreement and sale consideration shall be directly deposited with the bank. Respondent No.4 took the trouble of drafting the tripartite agreement which was submitted to the bank by her under cover of a letter dated June 21, 2012. It was recorded in the draft of the tripartite agreement that the petitioner would directly deposit the amount with the bank.

5. The tripartite agreement could not be signed. All this was to the knowledge of Debts Recovery Tribunal where proceedings initiated by respondents No.2 to No.4 were pending. Various orders were passed by the Debts Recovery Tribunal, and we only highlight two such orders dated August 14, 2012 and October 01, 2012. The two orders record that pending execution of the tripartite agreement the petitioner may deposit some money with the bank, which the petitioner did. In all, petitioner deposited directly with the bank a sum of Rs.2.01 crores. Some issue concerning the tripartite agreement emerged and on December 27, 2012 the Debts Recovery Tribunal passed an order that the petitioner would deposit Rs.2.25 crores with the Debts Recovery Tribunal.

6. Everything collapsed. The petitioner filed an application praying that Rs.2.25 crores deposited with him with the DRT be returned to him and the bank should be directed to refund to him Rs.2.01 crores.

7. The bank opposed the application pleading that it had received the money to the account of the debtor and it hardly mattered what was the source of the funds. Thus, as per the bank it had appropriated the money received towards the outstanding dues of respondent No.2.

8. Vide order dated March 07, 2012, the Debts Recovery Tribunal held in favour of the petitioner, and the order highlights that the petitioner never made any payment on behalf of the borrower. The petitioner made the payment under an independent right to which the bank had agreed i.e. property No. 225, SBI Colony, Paschim Vihar, New Delhi would be sold to him for Rs.7 crores and since the property was mortgaged to the bank, the bank would receive the money in satisfaction of the charge. Relevant portion of the order reads as under:-

“The proposed buyer was under no legal obligation to make any payment to the bank as he was under no legal obligation to make any payment to the bank as he was not a debtor. He came to the picture with the knowledge and permission of the bank by way of the tripartite agreement for the purchase of the property. His intention was to purchase the property. The