O R D E R

1. This Appeal is filed challenging the order of Learned Presiding Officer, DRT-II, Chennai, in SA 134/2017 dated 03.09.2018.

1.1 SA 134/2017 was filed by 1^st Respondent herein challenging the Possession Notice dated 15.05.2017. After the contest, the SA was allowed with exemplary costs of Rs.25,000/- imposed on the Appellant Bank. Aggrieved by the said order, this Appeal is filed by the Bank.

2. Learned Counsel for Appellant Bank submitted that the Learned Presiding Officer, DRT-II, Chennai, allowed the SA and aside the Possession Notice dated 15.05.2017, on the following grounds:

i. Security interest was created in respect of the property in which the Respondent Nos. 5 and 6 have only a limited interest. This is against the terms of the Will;

ii. They can raise loan with Banks only for the purpose of business or construction of building. Loan cannot be taken for a different purpose.

iii. The mortgage by Deposit of Title Deeds was executed by Respondent No.5 in his individual capacity and as a power agent of Respondent No.1; however, the Tribunal below found that when the Respondent No.1 disputed the execution of the power of attorney, the claim of execution of mortgage by Deposit of Title Deeds by a Power of Attorney deed, cannot be accepted, more so, when the Power of Attorney is not produced before the Tribunal; and iv. The liability was taken over by the Appellant Bank from M/s. SBI, Palani Branch.

2.1 Learned Counsel for Appellant Bank further submitted that as per the Will dated 22.09.1993, the Respondent Nos. 5 and 6 have been given life interest in respect of the mortgaged property. However, a limited power was given to Respondent No.5 to avail loan and create mortgage for any construction and for development of the business/Schedule property. An absolute interest was given to 1^st Respondent. When a person having an absolute interest over the property along with a person having limited interest of enjoyment over the property, had joined together and execute the loan documents, it is legally permissible. Therefore, the findings of the Learned Presiding Officer in this regard in not correct.

2.2 The Memorandum of Deposit of Title Deeds was executed on 27.08.2013 by Respondents 1, 5 and 6, wherein the Respondent No. 5 has clearly stated that he is executing the document in his individual capacity and as a power agent of Respondent No.1. Respondent No.6 has also joined in the execution of said document. There is a specific mention in the document that Respondent No.5 namely Shri Hariharan executed the document for himself and as power agent for his son Mr. Ramkumar, the Respondent No.1. Prior to the execution of the Memorandum of Agreement Evidencing Deposit of Title Deeds on 27.08.2013, the Respondent Nos.1, 5 and 6, had executed the acknowledgement of the receipt of sanction letter dated 24.06.2013. They had executed the Deed of Guarantee dated 24.08.2013, in their individual capacity. Respondent Nos.1, 5 and 6 had also executed the Memorandum of Entry on 24.08.2013, as mortgagors, confirming that the property was offered as collateral security for due repayment to the Bank. All these documents clearly exhibit that the documents were produced for creation of mortgage by deposit of title deeds. Besides these documents, the Respondent Nos.1, 5 and 6 have also executed Declaration cum Confirmation Deed dated 24.08.2013. They also executed Record of Mortgage by Deposit of Title Deeds dated 26.08.2013 with intent to create security thereof in favour of Appellant Bank.

2.3 Learned Counsel for Appellant Bank would contend that, till 2012, there was no mandatory for registration of equitable mortgage by deposit of title deeds in Tamil Nadu. Thereafter, the Tamil Nadu government made an amendment to Registration Act whereby it included memorandum of deposit of title deeds in the list of documents compulsorily registrable under Section 17 of the Act, with effect from 01.12.2012. All these documents show that the Respondent Nos.