IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO 1333 OF 2005
SPAN MEDICALS -PETITIONER
VS
ORIENTAL BANK OF COMMERCE- RESPONDENT
APPEARANCE: MR. SN SOPARKAR , SR. S N ADVOCATE WITH MR. AMAR N BHATT FOR THE PETITIONER
MR. MIHIR J THAKOR, SR. ADVOCATE WITH MR. K M PARIKS FOR THE RESPONDENT
CORAM HONORABLE MR. JUSTICE D N PATEL
DATE : 16-1-2006
ORAL ORDER
RULE . Learned advocate MR. Ketan Parikh waives services of Rule on behalf of the respondent.
2. This petition has been preferred against the action initiated by the respondent of taking over possession of the proerty bearing F P no 768 of T P scheme no 3/5 situated near Parimal Railway Crossing , Ellisbridge, Ahmedabad.
3. Learned Senior advocate Mr. S.N. soparkar appearing for the petitioner submitted that the Fianl Plot no 768 of T.P. schemd No 3/5 admeasuring 3065 sq meters of land of which 2165 was mortgaed with the respondent bank and therefore, the respondent cannot issue a notice ( Annexure H to the petition of the petition) to take over possession of the whole Fianl Plot No 768, which is admeasuring 3065 sqmeteres . This , the notice issued by the respondent bank includes the notice for the property , which was never mortgaged to the respondent bank. In the impugned notice, out of Fianl Plot No 768, 900 sqmetere of land ought to be continued with the petitioner and the respondent bankis entitled only for 2165 sq meters of land of F P No 768.
4. Learned counsel appearing for the petitioner for the petitioner has also pointed out clasuses of mortgage deed and pointed out that only 2165 square meters of land was given as security and , therefor, notice dated 31st Jabuary 2005 ( Annexure "H" to the memo of petition), which is for the whole final plot No 768 deserves to be quashed and set aside.
5. I ahve heard the learned cousnel Mr. Mihir Thakore appearing for the respondent bank, who has pointed out that the petitioner has mortgaged the property bearing Fianl Plot No 768 with the respondent bank. The title deeds of the Final Plot are with therespondent bank. As the litigation is before the Urban Development Tribunal for 900 square meterers of land , the said portion of the land wasn not mortgaged with the respondent bank.
6. Learned advocatre of the respondent has also drawn attention of the cour at page no 82 of the present petition and pointed out taht Fianl Plot No 768 admeasuring 3065 sq meters of land has been marked , so taht 900 square meters of land can be separated. Similarly land of 2165 square meters has also been separated , which has been mortgaged with the respondent bank and authority to issue Notice under section 13 of the ct, 2002 and to take over possession of the disputed property ,which was mortgaged with the respondent bank. Demarcation is already on the record of the case ( As per page -80 of the memor of the petition).
7. Having heard the learned counself appearing for both sides and looking to the facts and circumstances of teh case, in my opinion, the petitioner has mortgaged land bearing Fianl Plot No 768 admeasuring 2165 square meters and remaining 900 square meters of land was Urban land ( Ceiling and Regulation) Act , 1976. As per the mortgage deed, the land admeasuring 2165 square meters was mortgaged by the petitioner to the respondent bank, which is an admitted fact, looking to the records of the case. looking to the mortgage deed , it appears that the respondent bank can issue Notice only for 2165 sq meters of the land. Out of totaql land of Final Plot no 768 , 900 squeare meters meters was never mortgaged by the petitioner to the reespondent bank. In view of this fact, the notice (which is at Annexur"H" to the memor of the petition) shall be confined only to 2165 square meters of land in th Final plot No 768 of Tp No 3/5. Thius, the respondent ank is entitled toget possession of land bearing No 768 admeasuring 2165 meters of land. Rule made abosulte to the afore said extendt whith no order as to costs.
( D N PATEL , J)
