PURNESH GANDHI vs ICICI BANK LIMITED on 26 October 2026

**ORDER**

**In** **MISCELLANEOUS APPLICATION NO. 42 OF 2025** **(Delivered on 26.10.2026)**

Purnesh Gandhi

... Applicant/s

Versus

ICICI Bank Limited

... Respondent/s

Advocate Gaurang Kinkhabwala a/w Adv. Karan Aiya a/w Adv. Tushar Goradia for the Appellant.

Advocate Aayush Kothari a/w Adv. Ketki Minhas i/b H&M Legal Associates for the Respondent No. 1.

**ORDER**

1. 1. The present petition is filed by the applicants herein;

1. 1) to set aside the order of this Tribunal passed on 16.08.2021 in TOA 247 of 2016.

2. 2) to set aside the recovery certificate issued therein.

3. 3) to declare that respondent has no right title or interest in the premises herein.

4. 4) to set aside the sale proclamation dated 23.01.2023 issued by the Ld. Recovery Officer and to lift the order of attachment over the premises herein, issued by the Ld Recovery Officer.

2. The applicants are seeking relief for the premises as "*Flat D-103, 1st floor, 'D' Wing admeasuring 425 sq.feet, situated in Gokul Tower Co-Operative Housing Society Ltd, Thakur Complex, Kandivali (East), Mumbai-400101*" hereinafter stated as the said premises.

3. The applicants contend that, they are the bona fide purchasers of the premises herein from Nanda Sawant as per registered sale agreement dated 15.07.2006 and are in continuous occupation and possession of the same since that date. They then received possession notice dated 25.10.2013 for the premises u/s 13(4) of SARFAESI Act, referring to the demand notice dated 29.06.2013, calling upon R2 and R3, to pay up the amount stated therein. Applicants are neither borrowers, guarantors nor mortgagors and have no relationship with R1/bank. But they have received a warrant of attachment dated 22.06.2022 and settlement of proclamation notice dated 05.12.2022 addressed to R2 and R3, for the said premises, and then they came to be aware of the pending recovery proceedings in O.A 247 of 2016.

4. The applicants further contend that, they had filed the intervention petition before Ld. RO and had also filed M.A 41 of 2023 on 23.02.2023. The intervening petition filed by the applicants before Ld. RO was rejected on 14.08.2024. R1/bank had obtained the decree in O.A 247 of 2016, on a fraudulently secured certificate stated to be issued by the erstwhile secretary of the society housing the premises herein. The order obtained by R1 in the said O.A is by misrepresentation and, therefore, a nullity. The applicants by way of this petition is seeking to set aside the order of this Tribunal on 16.08.2021, the recovery certificate dated 16.08.2021, the sale proclamation notice by Ld. RO

dated 23.01.2023 and to lift the attachment on the property effected by Ld. RO and to declare that R1 has no right or title over the premises.

5. R1/bank contends that, the premises herein were mortgaged by R2 and R3 in favour of R1 in 2004. The subsequent transfer of the premises by the mortgagors without permission of R1/bank is void and illegal. As the mortgage was in 2004, the rights, if any, for applicants herein would be subject to the mortgage created in favour of R1. Further, the letter addressed by applicants to R1 on 30.10.2013 shows that, the applicants who were aware of all the proceedings have remained inactive till date. The applicants have already filed M.A 41 of 2023 which stands posted to 06.11.2026 before this Tribunal claiming the same reliefs as is sought for in the present petition. The order passed by Ld. RO on 14.08.2024 remains unchallenged till date and so it has obtained finality. Now the present petition as M.A 42 of 2025 is claiming reliefs, for which another petition is also pending as M.A 41 of 2023 before this Tribunal. So the present petition cannot be entertained.

6. Before entering into the contentions of parties it is to be verified whether the present petition is prima facie maintainable. There is no denial by the applicants to the contention of R1 that, an earlier petition as M.A 41 of 2023, filed by them for the very same reliefs, is pending hearing before this Tribunal, on 06.11.2026.

7. According to R1/bank, filing a second application, for the exact same reliefs regarding the same property, while a previous application is still pending, is barred under res-subjudice and the rule against multiplicity of proceedings. Ld. Counsel for R1 contends that, Section 10 of Code of Civil

Procedure (CPC) mandates that no court/tribunal shall proceed with the trial of any suit/application in which the matter in issue is also directly and substantially in issue in a previously instituted pending proceedings between the same parties.

8. Ld. Counsel for the applicants contends that, Section 10 of Code of Civil Procedure (CPC) is not applicable to DRT. It is applicable only to courts and not to DRT. Further as according to the applicants, the present proceedings are not a suit and so there is no question of two courts entertaining the same issue between the same parties.

9. The contention of both sides cannot be accepted as such for the following reason. The technical bar under Section 10 of Code of Civil Procedure (CPC) does not automatically stay DRT proceedings. The tribunal is free to adopt the underlying principle of natural justice to regulate its own procedure. The statutory framework i.e., Section 22 of RDB Act, states that DRT is not bound by the strict procedures laid down by the Civil Procedure Code. The tribunal is given power to regulate its own procedure, strictly guided by principles of natural justice.

10. The very purpose of establishing the DRT is for the rapid adjudication and speedy recovery of debts due to banks. Allowing debtors to stall exclusive tribunal actions by filing general civil suits first would completely frustrate the public policy objective of RDB Act.

11. Section 10 of Code of Civil Procedure (CPC) is not automatically applicable to proceedings before the DRT but Section 22 of RDB

Act does not absolutely prohibit DRT from applying principles of CPC. The distinction is between the power of DRT to regulate its procedure and the mandatory application of Section 10 of Code of Civil Procedure (CPC). Section 22(2) grants specified civil-court powers to DRT but does not expressly include Section 10 of Code of Civil Procedure (CPC).

12. Section 22(1) permits DRT to regulate its procedure, and the principle underlying Section 10 of Code of Civil Procedure (CPC) may become relevant to prevent conflicting findings and abuse of process. Resorting to Section 22 of RDB Act, this Tribunal has to come to the conclusion that, the present M.A which is a duplication of the earlier M.A must be stated to be an abuse of process of the Tribunal.

13. The contention of R1/bank that, the present M.A as the second petition being duplicative, the applicants should not be permitted to pursue two parallel applications for the very same reliefs has to be accepted. Section 22 of RDB Act r/w rule 18 of DRT (Procedure) Rules, empowers the DRT to make orders necessary to prevent abuse of its process. So on that ground the present M.A which is seen to be a petition for the very same reliefs as sought for in the earlier pending M.A 41 of 2023 is not maintainable.

14. Next, it is to be noted that, a Miscellaneous Application is usually filed seeking interlocutory reliefs, for delays or procedural modifications within a pending matter, but it cannot bypass formal statutory appellate routes. Challenging the action of Ld. RO, who operates under a separate execution window (Section 25 to 28 of RDB Act), and his orders of attachment, sale proclamation, or the auction itself cannot be directly challenged via a standard petition as M.A before the Tribunal. To lift the attachment order, appeal to DRT u/s 30 of RDB Act, declaration of title by claim petition before Ld. RO under Rule 11 of 2nd Schedule of Income Tax Act or u/s 17 of SARFAESI Act are to be resorted to by the applicants.

15. Declaration of right and title over a property is a substantive declaration. On rejection of the claim by the Ld. RO, then that specific order should be challenged by the aggrieved party u/s 30 before DRT. An attempt to bundle all these prayers in an M.A must be stated to be misjoinder of causes of action, bypassing explicit statutory remedies. So on that ground also the present M.A cannot be entertained.

16. The contention of the applicants in para 15 of their argument notes states that, they came to be aware of the proceedings against the premises by R1/bank only after receipt of warrant of attachment dated 22.06.2022. The said contentions cannot be accepted in view of the communication by the applicants to R1/bank on 30.10.2013 and 13.11.2013 which make it evident that applicants were aware that the premises herein was mortgaged to R1/bank.

17. Under RDB Act, and general principles of law such as S:48 of Transfer of Property Act, a decree in O.A and consequent recovery certificate, cannot be set aside, at the instance of a subsequent third party. Even after being aware of the fact of mortgage and proceedings by R1 since 2013, the applicants are seen to have remained in inertia till the issuance of recovery certificate on 16.08.2021 and sale proclamation by Ld. RO on 23.01.2023. It is to be noted that, no action is taken by the applicants against the dismissal of their intervention application by Ld. RO and no action is initiated by the applicants against their assignors or against R2.

18. The normal accepted reaction of an innocent bonafide purchaser, on getting to know about the encumbrances on the property assigned to him, is to proceed against his assignor. As nothing is attempted to be done by the applicants in that direction, the contention of R1 that, the applicants along with R2 are colluding among themselves, to defeat the recovery proceedings initiated by R1, cannot be brushed aside as meaningless.

19. It is to be noted that, no satisfactory grounds are even alleged by the applicants to set aside the order dated 16.08.2021. No proven or substantiated grounds are offered by the applicants, to reopen, modify or set aside the decision by this Tribunal. As stated earlier, there is no dispute about the point that, the sale of the premises herein was effected in favour of applicants, subsequent to the mortgage in favour of R1 and that applicants were fully aware of the SARFAESI proceedings initiated. Again it is a settled position of law that, any transaction subsequent to the mortgage would always be subject to the said mortgage deed.

20. As the mortgage was created in favour of R1 prior to the sale deed to the applicants, it was for the applicants to verify the validity of the transaction between them and R2. Nothing is seen to have been effected in that regard by the applicants. The applicants even now, after being faced with the recovery proceedings and dismissal of their intervention application, have not resorted to any action against their predecessors in interest of the premises.

21. As stated earlier, no challenge is raised by the applicants to the dismissal of their intervention petition by Ld. RO. No valid complaints are raised against the proceedings by Ld. RO, apart from a request to set aside the sale proclamation issued. What exactly are the grounds on which the proceedings by Ld. RO in issuing sale proclamation and effecting attachment are to be held defective are not substantiated by the applicants. So also no satisfactory grounds are made out to set aside or recall the order of this Tribunal on 16.08.2021.

22. It therefore must be stated that, the requests now made by the applicants to set aside the order of 16.08.2021, recovery certificate, the settlement of proclamation notice and to lift the attachment effected in the recovery proceedings cannot be entertained and are to be dismissed. As stated above applicants are bundling up so many causes of action, for which effective statutory remedy is available, by means of a single M.A, which cannot be entertained. Lastly the applicants seek for an order to declare that R1 has no title or right over the premises herein. This Tribunal is incompetent to pass any order with respect to right or title over any extent of the property for any side.

23. In this case, the only finding that can be entered into by this Tribunal is that, the premises herein being a secured extent for R1, R1 has right to enforce the same. As the assignment to applicants is seen to be subsequent to the mortgage effected with R1, applicants cannot claim to be innocent purchasers, as they were seen to be aware of the same. The other aspects for decision regarding title for R1, or applicants over the premises herein are outside the jurisdiction and competency of this Tribunal and hence cannot be entertained. So the said request by the applicants has to be dismissed.

24. Consideration of the entire matter shows that, none of the contentions of the applicants in M.A 42 of 2025 can be entertained, and are to be dismissed.

25. The petition is dismissed. Parties to suffer costs.

(Dictated to my Stenographer, transcribed by her corrected and signed by me and pronounced in open forum on 26.10.2026)

Presiding Officer

Debts Recovery Tribunal, Mumbai-I (Sreekala Suresh)

Date: 26.10.2026