ORDER :

[Sonia Gokani, J.]

1. The petitioner is aggrieved with the order of Debt Recovery Tribunal – II, Ahmedabad (for short “the DRT”) passed in Appeal No. 9 of 2019 in Transfer Recovery Proceeding No. 39 of 2012 with the following factual details :

2. A demand Notice was issued in the year 2003 by the respondent No.1 – Bank of Baroda against the original debtors and thereafter, in the year 2009, the attachment was levied as per the directions of the Court. The dispute in the present petition is in relation to the property bearing Plot No. A/2/208 located in GIDC Estate at Sarigam, Valsad.

3. Mortgage originally was created as per the Bank with GIIC which had the first charge over the property situated at Gujarat and at the time, the contention was also raised with regard to the original defendant having agreed to create the second charge on the land, building plant and machinery belonging to it being Plot No. A/2/208, GIDC Estate, Sarigam, Valsad. The Presiding Officer of the DRT, Mumbai had referred only to two properties which were mortgaged namely Flat No.10 in Sita building and Flat No. 704 in the very building. The property in question at the time of recovery proceedings was found to be situated in the State of Gujarat and hence, the recovery proceeding was transferred to DRT, Ahmedabad and was numbered and registered as TRP No.39 of 2012.

4. TRP No.39 of 2012 was preferred before the DRT, Ahmedabad where, the petitioner raised an objection that he is a bonafide purchaser for value without notice of the property in question and the property was never mortgaged. It enjoyed absolute title and it was held that there was no second charge ever created in favour of the Bank in the order dated 31st May, 2019.

5. Further, challenge was made by respondent No.1 by way of Appeal No. 9 of 2019, it appears from the chronology of events, the challenge was also made by the present petitioner before this Court by way of preferring Special Civil Application No. 13402 of 2019 seeking declaration that the property was never mortgaged by the original debtor nor the property was ever subjected to mortgage and hence, it was an unencumbered property. This Court (Coram: A.Y.Kogje, J) after affording opportunities to both the sides partly allowed the petition declaring that respondent No. 1 had no right to hold on to the original title deeds as per the First Schedule of Memorandum of Entries dated 25.3.1991 pertaining to original allotment letter, original conveyance deed and original lease agreement of Plot No. A/2/208 located at GIDC, Sarigam Industrial Estate, in custody of respondent No.1 therefore, be released. This Court further directed that the petitioner to continue to hold such original title deeds which of course would be subjected to the final outcome of suit/recovery proceedings if any, filed or pending by respondent No.2, against Maheshwari Polyspin Pvt. Ltd.

6. This was challenged by Bank of Baroda by preferring Letters Patent Appeal No. 1725 of 2019 before the Division Bench of this Court Coram: (Hon’ble The Chief Justice Vikram Nath (as His Lordship then was) and A.J.Shastri, J) wherein, this Court had held and observed that the Bank failed to establish the plea of second charge over the plot in question and there was merely a bald assertion with no other material to substantiate. Eventually, Division Bench of this Court did not choose to interfere with the order of the learned Single Judge and appeal was dismissed.

7. Challenge was made by the respondent No.1 before the Apex Court in Special Leave to Appeal No. 28417 of 2019 wherein, the Apex Court, in wake of pendency of appeal before the DRT- II, Ahmedabad did not entertain the Special Leave petition and also the Contempt Petition and application for impleadment of the third party was also rejected vide order dated 22nd August, 2022 with the following order:-

“Having heard learned counsel appearing for the respective parties and considering the fact that with respect to very