IMPORTANT POINT
The main legal point established in the judgment is the priority of the equitable mortgage created in favor of the respondent bank over the sale deed executed in favor of the petitioner's predecessor-in-interest, and the directive to the respondent bank regarding possession of the subject property.

JUDGMENT

Vibhu Bakhru, J.

1. The petitioner has filed the present petition, inter alia, impugning an order dated 02.11.2023 (hereafter `impugned order') passed by the learned Debts Recovery Appellate Tribunal (hereafter `DRAT') in Regular Appeal No. 251 of 2022, whereby the petitioner's prayer for interim relief was rejected.

2. The petitioner had filed the aforesaid appeal (Regular Appeal No. 251 of 2022) against an order dated 15.11.2022, passed by the learned Debts Recovery Tribunal-III, New Delhi (hereafter `DRT'), whereby the petitioner's Securitisation Application (S.A. No. 05/2018), filed under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter `SARFAESI Act'), was rejected.

3. It is the petitioner's case that her father-in-law had purchased the First Floor of the built up property constructed on Plot No. 878, Block-I, Palam Vihar, Gurugram (Haryana) for a consideration of Rs.54,45,000/-. The sale deed in respect of the said property was executed in favour of the petitioner's father-in-law on 27.09.2012.

4. According to the petitioner, though the sale deed mentions the amount of Rs.54,45,000/-, the actual consideration was in excess of the amount mentioned in the sale deed.

5. The petitioner's father-in-law gifted the said property to the petitioner and her husband in terms of a registered gift deed dated 12.11.2012.

6. The respondent bank claims equitable mortgage in respect of the said property by virtue of a Memorandum of Deposit of the title deeds dated 23.09.2011. The said Memorandum indicates that title deeds in respect of the land and building under construction bearing Plot No. 878, Block-I, Palam Vihar, Gurugram (Haryana), were deposited with the respondent bank.

7. There is no dispute that the petitioner's predecessor-in-interest (petitioner's father-in-law) had purchased the subject property in question while the same was already mortgaged to the respondent bank. The petitioner's husband had accordingly filed an FIR on becoming aware that the borrower (M/s Mount Agro & Infra Developers Pvt. Ltd.) had sold the said property to his father (petitioner's father-in-law) without disclosing that the same was mortgaged with the respondent bank.

8. It is material to note that pursuant to the filing of the FIR, Neeraj Gupta, the director of the borrower company (M/s Mount Agro & Infra Developers Pvt. Ltd.), filed an application for Anticipatory Bail (CRM-M-40447 of 2017 captioned Neeraj Gupta vs State of Haryana) before the Punjab and Haryana High Court.

9. In the said proceedings, the applicant (Neeraj Gupta) deposited Rs.55 Lakhs, and an additional amount of Rs.2 Lakhs by way of compensatory costs to the State of Haryana. The amount of Rs.55 Lakhs was based on the consideration of Rs.54,45,000/-reflected in the sale deed executed in favour of the petitioner's father-in-law.

10. It is apparent from the orders passed by the Punjab and Haryana High Court in the aforesaid matter that the said amount was in the context of the complaint filed by the petitioner's husband. In view of the said deposit, the Punjab and Haryana High Court granted anticipatory bail to the applicant (Neeraj Gupta). However, the order dated 28.03.2018 passed by the Punjab and Haryana High Court, indicates that both the parties, that is, petitioner's husband as well as the respondent bank had sought to lay a claim on the said amount of Rs.55 Lakhs as the issue whether the respondent bank was entitled to proceed against the subject property was pending before the learned DRT. Accordingly, the Punjab and Haryana High Court directed that the said amount be transferred to the learned DRT in OA No.653/2014/SA No.256/2014.

11. The learned DRT accepted the respondent bank's contention that it had a subsisting security interest in respect of the subject property and accordingly rejected the Securitisation Application filed by the petitioner. The learned DRT had also directed that the amount