Judgment:
(Prayer: These Writ Petitions Are Filed Under Articles 226 and 227 Of Constitution Of India Praying To Quash The Recovery Certificate -In OA 413/07 DTD. 13.3.12 Issued By The Presiding Officer, DRT, Bangalore Vide Ann-A By Issuing A Writ In The Nature Of Certiorari And Etc.)
1. Petitioners, have called in question the recovery certificate dated 13.3 2012 bearing DRC 6757/2012 in OA No.413/2007 of the Presiding Officer, Debt Recovery Tribunal, for short 'DRT', Bangalore Annexure-A, insofar as it relates to paragraph-4 and the schedule of properties.
2. It is the assertion of the petitioners that they purchased the immovable property in question under a deed of sale registered on 28.4.2006 executed by 2nd respondent. The 1st respondent/Bank alleging to have obtained a mortgage of the said immovable property, and as the 2nd respondent failed to repay the dues, instituted OA No.413/2007 before the DRT, Annexure- C, arraigning petitioners as party respondents 2 and 3 while the borrower as 1st respondent.
3. That petition was opposed by filing statement of objections of the petitioners, inter alia, denying creation of the mortgage, while asserting title to the immovable property. 1st respondent - borrower having remained absent, did not offer resistance to the petition.
4. After a trial, the DRT by order dated 9.12.2009 Annexure-E dismissed OA levying exemplary cost of ^50,000/-, observing that there was no mortgage, but an agreement to create an equitable mortgage in respect of immovable property in question and since no mortgage was created, petitioners having purchased the immovable property under sale deed executed by the borrower, the Bank did not have any right to recover the money from out of the sale of the said immovable property.
5. That order, when carried in RA No.51/2010, the Debt Recovery Appellate Tribunal, for short 'DRAT', Chennai, by order dated 12.4.2011, Annexure-F, partly allowed the appeal, directing issue of a recovery certificate as against claim put forth by the Bank over the 1st respondent/borrower, while dismissing the appeal as against the claim over the immovable property.
6. Things having stood thus, and the orders rendered final as against the petitioners' claims over the immovable property in question, the DRT, Bangalore, issued recovery certificate Annexure-A impugned, directing that in default of the payment by the borrower, the same would be recoverable by sale of the mortgaged/hypothecated property described in the schedule to OA, none other than the immovable property purchased by the petitioners.
7. Petitions are opposed by filing statement of objections of the 1st respondent/bank, inter alia, contending that on the date of the agreement to mortgage the immovable property in question, was subject matter of mortgage by the borrower in favour of the Bank and therefore were entitled to recover the monies from the sale of mortgaged immovable property.
8.  At paragraph-9, it is stated thus:
"9. It is submitted that as per the Maxim "Nalius Commodum capere potest de inhudria sua propria" - no man take advantage of his own wrong. As an alleged purchaser, the petitioner has failed to explain as to why he did not enquire about the original agreement to sell and construction agreement of the schedule property. As the mortgage in favour of the Bank is earlier than the alleged purchase of the Flat by the petitioner, the order issued/action taken by the respondent Bank is valid and as per procedure prescribed under law."
9. Heard learned Counsel for the petitioners, perused the pleadings, the orders in OA and in RA and the recovery certificate impugned.
10. There is no representation for the 1st respondent/'Bank, hence, contents of the statement of objections perused.
11. There is force in the submission of learned Counsel for the petitioners that the DRT and the DRAT in their orders impugned, having observed that petitioners, when arraigned as respondents 2 and 3, are purchasers of the immovable property, hence not liable to make good the amount while it is the 1st respondent/borrower who took the loan and not repaid, and therefore the claim of mortgage of the immovable property was not proved, the Bank having suffered the finding and allowed it to become final, it is too far fetched for the Bank to contend that, in fact, there was a valid mortgage by way of deposit of title deeds, of the said immovable property as contended in paragraph-9 of the statement of objections, supra.
12. The Bank, in my opinion, has overreached the orders of the DRT and DRAT, Annexures- D and E respectively. The finding of the competent court that there exists no mortgage in the eye of law, of the immovable property in question, by the borrower, in favour of the Bank, it is too far fetched, to now contend in this proceeding that the Bank had the right to sell the immovable property in question to recover the monies due by the borrower.
13. In the result, these petitions are allowed.
14. The recovery certificate, insofar as it relates to paragraph-4 and the schedule is quashed. Cost of this proceeding is fixed at Rs.20,000/- payable by the Bank to the petitioners.