A mortgage is indivisible, but a mortgagee may choose not to include certain purchasers in proceedings, affirming dominus litis principle.

ORDER :

P.B. BALAJI, J.

The Revision has been preferred by the petitioner, aggrieved by the order dated 09.07.2024 in M.A. No.35 of 2023 on the file of the Debt Recovery Appellate Tribunal, Chennai.

2. We have heard Mr.A.Arokia Satheesh, learned counsel for the Revision Petitioner and Mr.V.Prakash, learned Senior Counsel appearing for Mr.P.Chandrasekharan, learned counsel for the respondents.

3. The learned counsel for the Revision Petitioner would submit that the Revision Petitioner is the Applicant in O.A.No.801 of 2014 before the Debt Recovery Tribunal (DRT)- 1, Karnataka at Bangalore, which has been filed for recovery of Rs.76,37,741/- against M/s.Spectrum Realtors and its partners who are defendants 1 to 5 in the said proceedings. Defendants 6 to 33 are purchasers of Flats, Residential Apartments constructed in and over the mortgaged property, who proceeded to acquire interest in the said property, without obtaining NOC from the appellant.

4. The learned counsel for the Revision Petitioner would submit that at the time of development of the property, a project loan was granted to the borrower on the strength of the mortgaged property. Further, the specific case of the Revision Petitioner is that repayment of loan itself was structured in such a manner that as and when an apartment is sold, the sale consideration has to be paid to the Bank as part of repayment of the loan and on such payment of the sale consideration, the Bank would issue a No Objection Certificate for sale of the Apartment in favour of the purchaser thereby releasing its charge over the proportionate undivided share of land and the Apartment.

5. The learned counsel for the petitioner would further submit that the borrower has sold 47 Apartments after obtaining NOC from the petitioner and 28 Apartments however have been sold without obtaining NOC and only in respect of these 28 purchasers, the O.A. had been filed impleading them as defendants 6-33.

6. The said O.A. 801 of 2014 was allowed in and by an order dated 29.05.2015 and none of the purchasers viz., defendants 6-33 appeared and contested the proceedings and consequently, they were set exparte. However, three of the defendants viz., defendants 27, 30 & 33 filed an Application to recall the order dated 29.05.2015 passed exparte. The Debt Recovery Tribunal allowed the said Application of the defendants 27, 30 & 33, as against which the petitioner preferred an Appeal in MA No.22 of 2018. The Appeal was allowed on 03.01.2019 with a direction that a sum of Rs.1,50,000/- each would be deposited in the name of the appellant- Revision Petitioner Institution before the Registry of DRT, as a pre- condition to permit the defendants 27, 30 & 33 to participate in the hearing of the OA. The defendants complied with the said order and subsequently, similar Applications were taken out by defendants 6, 9, 10, 11, 15, 16, 17, 20, 23, 25, 26, 28, 29 & 32 in IA.No.3741 of 2015. Similar permission was granted to them to contest the Debt Recovery case.

7. The case of the purchasers as set forth in the written statement was that they have availed a loan from the HDFC Limited for buying Flats in the project and they were not aware about the mortgage of the property by the borrowers in favour of the Revision Petitioner and that they were innocent and bonafide purchasers. The OA was h