The validity and priority of an equitable mortgage created before the sale of the property, as well as the rights of the mortgagee under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, were central to the judgment.

JUDGMENT :

Bibhu Prasad Routray, J.

1. This writ petition has been filed by the petitioner with a prayer for issuance of a writ of certiorari to set aside the judgment and order dated 05.02.2019 (Annexure-4) passed by the learned Debts Recovery Appellate Tribunal, Kolkata in Appeal No. 121 of 2018, whereby the order dated 10.05.2018 passed by the Debts Recovery Tribunal, Cuttack in SA No. 01 of 2017 has been set aside.

2. The factual aspects of the case, as per the petitioner, in brief are that the petitioner is a bona fide purchaser of a piece of land measuring Ac. 0.073 dec. in plot No. 57 under Khata No. 1003 of Mouza Bhubaneswar Sahar Unit 35, Badagada (hereinafter called as the 'secured asset'). She purchased the same from one Khirod Pattnaik, Opp. Party No. 5 herein, by executing a sale deed dated 19.03.2010 (Annexure-2) upon payment of a consideration amount of Rs. 7,25,000/- (seven lakhs twenty five thousand), in pursuance to the agreement for sale, between them dated 22.11.2006. After purchasing the said land, she constructed a two storied building thereon after mutating the land in her favour and taking necessary permission from the Bhubaneswar Development Authority. She gave the said house on rent. It is stated that, suddenly on 03.06.2015 the officials of opposite party-Bank i.e. HDFC Bank with local police personnel dispossessed the tenant from the said house basing on an order passed by the District Magistrate, Khorda under Section 14 of the Securitization and Reconstruction of the Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called "the SARFAESI Act"), even without issuing any prior intimation to the petitioner. Subsequently, it was learnt by her that the vendor of the said land (O.P. No. 5) had mortgaged the said case land as 'secured asset' by availing a loan from the opposite party-Bank and therefore, the Bank has taken action for dispossessing the petitioner there from as per the provisions under the SARFAESI Act.

3. Being aggrieved by the said action of the opposite party-Bank, she approached the learned Debts Recovery Tribunal, Cuttack (DRT) under Section 17 of the SARFAESI Act by filing SA No. 01/2017 praying to quash the notices issued by the Bank under Sections 13(4) and 14 of the SARFAESI Act. The contention of the petitioner before the DRT, Cuttack was that the action of the Bank is vitiated due to lack of valid equitable mortgage of the case land land/secured asset.

4. The opposite party-Bank contested before the DRT, Cuttack. It is the case of the Bank that, the vendor of the petitioner i.e., O.P. No. 5 took loan from the erstwhile Centurion Bank Ltd., which later merged in HDFC Bank, to the tune of Rs. 60.00 lakhs including enhanced loan amount as the proprietor of his business M/s. Blue Tooth and furnished a collateral security of assets including the present secured asset in the year 2007 by creating an equitable mortgage in favour of the Bank. The said property was mortgaged by O.P. No. 5, particularly on 27.10.2007 by depositing the original title deed of the secured asset and furnished his intention to keep the said property as security by way of an affidavit. Therefore, the alleged sale deed executed after the charge created in favour of the Bank does not confer any right on the petitioner and her contention that no equitable mortgage was created in favour of the bank is not correct.

5. The learned DRT, Cuttack in its judgment dated 10.05.2018 directed in favour of the petitioner and set aside the possession notice dated 06.01.2016 issued by the Bank with further direction to redeliver the possession of the property (secured asset) to the petitioner.

6. The Bank, thereafter, approached the Debts Recovery Appellate Tribunal, Kolkata against the said order of the DRT, Cuttack. The Appellate Tribunal upon adjudication of the case, by its judgment dated 05.02.2019 reversed the finding of the DRT, Cuttack and directed in favour of the Bank by allowing the appeal and settin