Judgment : V. RAMASUBRAMANIAN, J. The applications A. Nos. 4144 of 2007 and 4145 of 2007 and O.A. No. 729 of 2007 are by the plaintiffs seeking inter alia (i) stay of operation of the Sale Certificate No. 53 of 2006 dated 31.8.2006 issued by the Debts Recovery Tribunal-II, Chennai, (ii) leave under Order 2Rule 2 C.P.C., to seek appropriate reliefs regarding possession, on the basis of the same cause of action, in subsequent proceedings and (iii) interim injunction restraining the fourth defendant from dealing with the suit ‘A‘ schedule property. The application A. No. 4349 of 2007 has been taken out by the fourth defendant for rejecting the plaint under Order 7Rule 11 C.P.C. 2. I have heard Mr. P.S. Raman, learned Additional Advocate General, appearing for the plaintiff, Mr. V. Girish Kumar, learned counsel appearing for the third defendant-Bank and Mr. N.R. Chanaran, learned Senior Counsel appearing for the fourth defendant. The second defendant is a company under liquidation and hence notice was served on the Official Liquidator, but he did not choose to appear. Notice was served also on the first defendant but they have not chosen to appear. 3. The second defendant herein viz., Dhanalakshrni Consolidates Transports Pvt. Ltd., availed certain credit facilities viz., a term loan and cash credit hypothecation facility and failed to repay the amounts due, to the New Bank of India. Therefore, the Bank filed a suit for recovery of money in Suit No. 650 of 1990 on the file of the High Court of Judicature at Bombay. The first defendant herein was impleaded in the said suit as the second defendant. The Bank did not describe the first defendant herein viz., M.G. Brothers Lorry Service either as a borrower or as a guarantor, for the credit facilities availed by the second defendant-Company. However, the first defendant herein was made a party to the suit, Suit No. 650 of 1990 on the file of the High Court, Bombay, on the basis that the properties belonging to them had been mortgaged to the Bank, by the second defendant company, both by virtue of a power of attorney given to them and by virtue of an agreement that they had with the first defendant herein. 4. The said suit eventually got transferred to the file of the Debts Recovery Tribunai-II, Chennai in T.A. No. 1 of 2004. 4. The said suit eventually got transferred to the file of the Debts Recovery Tribunai-II, Chennai in T.A. No. 1 of 2004. By then, the original plaintiff New Bank of India merged with the Punjab National Bank, which is the third defendant herein and hence the third defendant came on record as the plaintiff before the Debts Recovery Tribunal. Similarly, the second defendant-Company was wound up under the orders of this Court and hence the Official Liquidator came on record as representing the second defendant-Company before the Debts Recovery Tribunal. 5. During the pendency of the proceedings before the Debts Recovery Tribunal-II, Chennai, the third defendant-Bank took out an application in I.A. No. 336 of 2006, seeking permission of the Tribunal to sell all the plaint schedule properties (of that suit) to the fourth defendant herein for a sum of Rs. 200 lakhs. In the said application, which appears to have been filed either on 30.6.2006 or in the first week of July, 2006, a partner of the first defendant herein filed an affidavit of no objection for the sale of the properties. Based upon the averments contained in the application of the Bank and the affidavit of no objection filed by one partner of the first defendant herein, the Debts Recovery Tribunal-II, Chennai, passed an order on 10.8.2006, allowing the application and directing the Recovery Officer to issue a Sale Certificate in favour of the fourth defendant herein. 6. After the said order was passed on 10.8.2006, the third defendant-Bank filed a memo containing the description of the mortgaged properties and seeking necessary direction to the Recovery Officer to incorporate the terms of the Memorandum into the Sale Certificate. On the memo so filed by the Bank on 29.8.2006, the Debts Recovery Tribunal-II, Chennai, passed an order on 30.8.2006, directing the Recovery Officer to issue the Sale Certificate. Curiously, this Memorandum did not merely contain certain terms and conditions, but also contained the extent of one of the items of properties (which is the subject matter of dispute in this suit) as 2 acres and 3-1/2 guntas, though the body of the plaint and the schedule to the plaint mentioned the extent of the same land uniformly at all places as 3-1/2 guntas. 7. 7. In pursuance of the original order dated 10.8.2006 and the second order passed on 30.8.2006 on the memo filed by the Bank and a third order passed on 31.8.2006 by the Debts Recovery Tribunal, the Recovery Officer issued a Sale Certificate No. 53 of 2006 on 31.8.2006. Within four days, the Recovery Officer also issued an order on 4.9.2006 putting the purchaser viz., the fourth defendant herein, in possession of the properties under the provisions of Rule 42 of the Second Schedule to the Income Tax Act. 8. The Sale Certificate related to 9 items of properties, one of which is the land in Survey No. 43/3, Hebbal Village,Bangalore,North Taluk. Though the Sale Certificate mentioned the extent of this land as 2 acres and 3-1/2 guntas, the plaint mentioned the extent of this land only as 3-1/2 guntas, on the date on which the Sale Certificate was issued. But the first defendant herein, who was admittedly the original owner of the said land, had already sold the said land to 9 individuals in the year 1994 under 9 registered sale deeds. Those 9 persons sold the property to one Arcus Technologies (P) Ltd., in 1995 and the plaintiff purchased more than 1 acre out of the same, from Arcus Technologies (P) Ltd., in the year 2000. 9. But in pursuance of the orders of the Recovery Officer, the fourth defendant took physical possession of the present suit schedule property on 5.9.2006, forcing the plaintiff to file a suit on the file of the City Civil Court, Bangalore, seeking a decree of permanent injunction in O.S. No. 8401 of 2006. However, the said suit was withdrawn after a writ petition in W.P. No. 40073 of 2006 was filed on the file of this Court, challenging the Sale Certificate. At the time of admission of the said writ petition, interim orders were granted in favour of the plaintiff herein. But after elaborate arguments, Justice S. RAJESWARAN, discontinued the interim orders and dismissed the miscellaneous petitions. Challenging the orders passed by the learned Judge, the plaintiff herein filed a writ appeal in W.A. No. 62 of 2007. At the time of admission of the said writ petition, interim orders were granted in favour of the plaintiff herein. But after elaborate arguments, Justice S. RAJESWARAN, discontinued the interim orders and dismissed the miscellaneous petitions. Challenging the orders passed by the learned Judge, the plaintiff herein filed a writ appeal in W.A. No. 62 of 2007. By an order dated 6.6.2007, the Division Bench of this Court dismissed both the writ appeal as well as the writ petition on the sole ground that the writ petition is not maintainable and left it open to the parties to agitate their disputes before the appropriate Forum. Thereafter, the plaintiff has come up with the present suit. 10. The reliefs prayed for in the suit are: • (a) A declaration that the order dated 10.8.2006 modified by the orders dated 30.8.2006 and 31.8.2006 passed by the Debts Recovery Tribunal-II, Chennai, in I.A. No. 336 of 2006 in T.A. No. 1 of 2004 are null and void and not binding on the plaintiffs; • (b) A declaration that the Sale Certificate No. 53 of 2006 dated 31.8.2006 issued by the Debts Recovery Tribunal-II, Chennai, is null and void and not binding on the plaintiffs; and • (c) A permanent injunction restraining the fourth defendant from in any manner acting upon the Sale Certificate and dealing with the property described in Schedule ‘A‘ to the plaint. 11. The plaintiff, who is not a party to the proceedings before the Debts Recovery Tribunal-II, Chennai, assails the entire proceedings of the Debts Recovery Tribunal with respect to the sale of suit ‘A‘ schedule property, as null and void primarily on the ground of fraud and collusion and also on the ground that they are the lawful owners of the property in question. Several circumstances are pointed out, (i) right from the plaintf as it was originally filed, (ii) the manner in which the application for private sale of the property was taken out, (iii) the manner in which the said application was allowed and the Sale Certificate issued and (iv) the manner in which amendments relating to the description of the properties were sought for and carried out after the issue of Sale Certificate, and after delivery of possession, to highlight that there was fraud and collusion in the proceedings before the Debts Recovery Tribunal-II, Chennai. 12. 12. As stated earlier, the plaintiff claims title to the plaint ‘A‘ schedule property (which is part of the larger extent of acres 2 and guntas 3-1/2, in Survey No. 43/3) on the basis of the sale made by the first defendant in favour of 9 persons in the year 1994 and the sale made by those 9 persons in favour of Arcus Technologies (P) Ltd., in 1995 and the transfer made by that Company to the plaintiff in 2000. 13. Before venturing to deal with the question as to whether a prima facie case of fraud and collusion is made out by the plaintiff, to maintain the suit, certain preliminary objections raised by Mr. N.R. Chandran, learned Senior Counsel for the fourth defendant have to be considered. Therefore, I propose to deal with those preliminary objections first, as a decision on those objections would decide the question as to whether the main issue raised in the plaint should be or can be gone into or not. I. Territorial Jurisdiction: 14. Mr. N.R. Chandran, learned Senior Counsel appearing for the fourth defendant contended that the present suit is actually a suit for control over land, though the prayer is couched in disguise. The suit ‘A‘ schedule property is situate in Hebbal Village,BangaloreNorth Taluk. Though the prayers made in paragraph-36 (a) and (b) of the plaint are for declaratory reliefs, the prayer made in paragraph-36(c) is for an injunctive relief in respect of suit ‘A‘ schedule property, which is admittedly located outside the jurisdiction of this Court. The prayer made in paragraph-36 (c) is virtually a prayer for control over land and hence, according to the learned Senior Counsel for the fourth defendant, this Court has no jurisdiction to entertain the suit. 15. In support of the aforesaid contention, Mr. N.R. Chandran, learned Senior Counsel for the fourth defendant relied upon the oft quoted judgment of the Division Bench in Thamiraparani Investments Pvt. Ltd. v. Meta Films Pvt. Ltd. , (2006) 1 MLJ 357 : 2006 (1) CTC 270 . 16. 15. In support of the aforesaid contention, Mr. N.R. Chandran, learned Senior Counsel for the fourth defendant relied upon the oft quoted judgment of the Division Bench in Thamiraparani Investments Pvt. Ltd. v. Meta Films Pvt. Ltd. , (2006) 1 MLJ 357 : 2006 (1) CTC 270 . 16. But I am unable to accept the said contention of the learned Senior Counsel for the fourth defendant for the following reasons: (a) The plaintiff in the present suit has not prayed either for a decree of delivery of possession or for a decree of permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit schedule property. The prayer in paragraph-36(c) of the plaint is only for a decree of permanent injunction restraining the fourth defendant from directly or indirectly acting upon the Sale Certificate issued by the Debts Recovery Tribunal-II, Chennai, which is under challenge arid from-dealing with the suit ‘A‘ schedule property. Therefore, the present suit is not one for land or for control over land. (b) In Thamiraparani Investments Pvt. Ltd. v. Meta Films Pvt. Ltd. (supra), the Division Bench was concerned with a case where the prayer was for a permanent injunction restraining the defendants from entering into the suit ‘A‘ schedule property and disturbing the possession of the plaintiff and also for a mandatory injunction, directing the defendant to restrict their activities to the suit ‘B‘ schedule property. Therefore, the Division Bench went into the issue as to what constitutes a suit for land. To begin with, the Division Bench considered the judgment of the Federal Court in Moolji Jaitha and Company v. Khandesh Spinning and Weaving Mills Company Ltd. , AIR 1950 FC 83 and found that the expression “suit for land covers three clauses of suits viz; (i) suit for determination of title, (ii) suit for possession of land and (III) other suits in which the reliefs if granted would directly affect title to or possession of the land. Thereafter, the Division Bench applied the law laid down by the Supreme Court In Adcon Electronics Pvt. Ltd. v. Daulate (2001) Supp MLJ 30 : 2001 (4) CTC 39, to come to the conclusion as it did. Thereafter, the Division Bench applied the law laid down by the Supreme Court In Adcon Electronics Pvt. Ltd. v. Daulate (2001) Supp MLJ 30 : 2001 (4) CTC 39, to come to the conclusion as it did. In Adcon Electronics Pvt. Ltd. v. Daulate (supra), the Supreme Court categorically held that a suit for specific performance of a contract for the sale of immovable property is not a suit for land, if no consequential relief of delivery of possession is sought for. In the present case, the plaintiff has not only admitted that the fourth defendant has taken delivery of possession of the property on 5.9.2006, but also come up with an application in A. No. 4145 of 2007 under Order 2Rule 2 C.P.C., for leave to institute separate proceedings before the appropriate Court for delivery of possession, based upon the same cause of action. (c) As rightly pointed out by Mr. P.S. Raman, learned Additional Advocate General appearing for the plaintiff, all the defendants in the suit carry on business or reside within the jurisdiction of this Court. The entire cause of action arose within the jurisdiction of this Court where the Debts Recovery Tribunal-II, Chennai, passed an order, allowing the application for private sale of the suit ‘A‘ schedule property in I.A. No. 336 of 2006 in T.A. No. 1 of 2004 and the Recovery Officer issued a Sale Certificate. An injunction restraining the respondents from acting on the Sale Certificate issued by the Recovery Officer, Debts Recovery Tribunal-II, Chennai, is an injunction in personam and such an injunctive relief is not so elastic as to make it one for control over land. 17. Mr. N.R. Chandran, learned Senior Counsel for the fourth defendant contended that de hors the language in which the prayer in the suit is couched, a reading of the plaint in full and as a whole, would show that it is a suit to gain control over land and hence it is not maintainable. To drive home the point that a suit has to be read as a whole, to find out its real purport, the learned Senior Counsel relied upon the decision of the Supreme Court in Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan AIR 2007 SC 1636 : (2007) 4 SCC 343 : (2007) 4 MLJ 1034. 18. To drive home the point that a suit has to be read as a whole, to find out its real purport, the learned Senior Counsel relied upon the decision of the Supreme Court in Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan AIR 2007 SC 1636 : (2007) 4 SCC 343 : (2007) 4 MLJ 1034. 18. But in the said decision, the Supreme Court was concerned with a case for partition and rendition of accounts in respect of the properties situate outside the jurisdiction of the Courts at Delhi. The plaintiff camouflaged the suit by including a prayer for a declaration that a Will allegedly made by her mother at New Delhi was never made. The Supreme Court found that as a suit for partition, it was a suit for immovable property and that the prayer for partition could have been made even without the prayer for declaration relating to the alleged oral Will. It is in that context that the Supreme Court held that a plaint has to be read as a whole and in a meaningful manner to find out the real intention behind the suit. 19. Inany event, a reading of the plaint in the present case, as a whole and in a meaningful manner, would only show that the plaintiff is aggrieved by the proceedings of the Debts Recovery Tribunal-II, Chennai, as being vitiated by fraud and collusion. The main attack in the present suit is on the proceedings before the Debts Recovery Tribunal-II, Chennai, culminating in the issue of a Sale Certificate in favour of the fourth defendant. Therefore, I do not think that a suit for immovable property or for control over land is disguised in its present form, making it liable to be rejected. The expression “control over land” cannot be stretched to the extent of including a suit where the previous proceedings are alleged to be vitiated by fraud and collusion. If it is so elastic, a suit for specific performance would also come within its meaning since every suit for specific performance is ultimately intended to acquire title over an immovable property. Despite knowing such a consequence, the Supreme Court held in Adcon Electronics Pvt. Ltd. v. Daulate (supra) that a suit for specific performance without a prayer for delivery of possession is not a suit for land. 20. Even according to Mr. Despite knowing such a consequence, the Supreme Court held in Adcon Electronics Pvt. Ltd. v. Daulate (supra) that a suit for specific performance without a prayer for delivery of possession is not a suit for land. 20. Even according to Mr. N.R. Chandran, learned Senior Counsel for the fourth defendant, the suit would be maintainable on the file of this Court in respect of the prayers made in paragraphs 36(a) and (b) of the plaint. But according to the learned Senior Counsel, if the prayer made in paragraph-36(c) of the plaint is deleted and the plaintiff restricts his claim to the declaratory reliefs sought for in paragraphs-36(a) and (b) alone, so as to make the suit maintainable in this Court, then the plaintiff would not be entitled to seek an interim order of injunction. In other words, if the prayer for a decree of permanent injunction goes, no interim order of injunction could be granted, according to the learned Senior Counsel for the fourth defendant. 21. But as I have held earlier, the suit as framed, despite the prayer in paragraph-36(c) of the plaint, cannot be taken to be a suit for land, the suit is primarily for a declaration that the proceedings before the Debts Recovery Tribunal-II, Chennai, are null and void on account of fraud and collusion. The prayer in paragraph-36(c) of the plaint is only for an injunctive relief for personal obedience since the plaintiff does not want the fourth defendant to act on the Sale Certificate issued by the Debts Recovery Tribunal-II, Chennai. Therefore, I am satisfied that this Court has jurisdiction to try the suit and the suit cannot be held to be not maintainable. 22. The same view was taken by a Division Bench of this Court in N. Dhanalakshmi and two Others v. S. Ekanathan, Proprietor, Eknath Real Estates N. Dhanalakshmi and two Others v. S. Ekanathan, Proprietor, Eknath Real Estates N. Dhanalakshmi and two Others v. S. Ekanathan, Proprietor, Eknath Real Estates 1997 (II) CTC 550 . In paragraph-14 of the said judgment, it was held as follows: “ 14. Looking to the relief sought for in the plaint, it is plain that principally the suit is for Specific Performance of the agreement, and alternatively for the relief of refund of money. In paragraph-14 of the said judgment, it was held as follows: “ 14. Looking to the relief sought for in the plaint, it is plain that principally the suit is for Specific Performance of the agreement, and alternatively for the relief of refund of money. Even the ancillary relief of permanent injunction is also for restraining the defendants from alienating or dealing with the suit property in any way. In other words, the suit is not one for title or possession. The ancillary reliefs of injunction sought did not affect the title or possession. The reliefs sought for are against the defendants in personem. In this view, it is not possible to hold that the suit filed by the plaintiff is for land, even having regard to the decisions cited by the learned counsel for the defendants.” II. Maintainability: 23. The fourth defendant has also questioned the maintainability of the present suit on three grounds viz., (a) that the suit as framed is bad in law; (b) that there is a bar of jurisdiction of the Civil Court to entertain any dispute falling within the purview of the Debts Recovery Tribunal; and (c) that the present suit is also barred by res judicata. II (A) Framing of the Suit: 24. Inviting my attention to the judgment of-the Supreme Court in Mehar Chand Das v. Lal Babu Siddique and Others Mehar Chand Das v. Lal Babu Siddique and Others Mehar Chand Das v. Lal Babu Siddique and Others (2007) 3 MLJ 951, Mr. N.R. Chandran, learned Senior Counsel appearing for the fourth defendant contended that a suit for a mere declaration by a person, who is out of possession, is not maintainable in law. In paragraph-10 of the said judgment, the Supreme Court held as follows at p. 954 of MLJ: “ 10. The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinjay Krishna v. Keshav Chandra and Another Vinjay Krishna v. Keshav Chandra and Another Vinjay Krishna v. Keshav Chandra and Another AIR 1993 SC 957 . The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinjay Krishna v. Keshav Chandra and Another Vinjay Krishna v. Keshav Chandra and Another Vinjay Krishna v. Keshav Chandra and Another AIR 1993 SC 957 . The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that If the plaintiff is not in possession, a suit for mere declaration would not be maintainable.” At the outset, the said decision would apply only to a case where a relief of declaration of title to a property is sought for, without a prayer for delivery of possession. In the case on hand, the declaratory reliefs sought for, are not in respect of the title to the property but in respect of the proceedings before the Debts Recovery Tribunal-II, Chennai. Moreover, in the case on hand, the applicant has reserved his right to seek recovery of possession before the appropriate Court, by filing an application for leave in A. No. 4144 of 2007 under Order 2Rule, 2 C.P.C. Therefore, the doors are not shut for the plaintiff to seek recovery of possession in an appropriate suit instituted before the Court having jurisdiction to grant such a relief. To such a plaintiff, the proviso under Section 34 of the Specific Relief Act based upon which the aforesaid decision of the Supreme Court was rendered, would not apply. 25. In the decision of the Division Bench of this Court in N. Dhanalakshmi and two Others v. S. Ekanathan, Proprietor, Eknath Real Estates N. Dhanalakshmi and two Others v. S. Ekanathan, Proprietor, Eknath Real Estates N. Dhanalakshmi and two Others v. S. Ekanathan, Proprietor, Eknath Real Estates (supra) referred to above also, a similar question arose. When a person filed a suit for specific performance with an alternative prayer for refund of money and also sought for a decree of permanent injunction restraining the defendants from alienating or dealing with the suit property in any manner, a similar objection was raised that the plaintiff did not seek the relief of possession. When a person filed a suit for specific performance with an alternative prayer for refund of money and also sought for a decree of permanent injunction restraining the defendants from alienating or dealing with the suit property in any manner, a similar objection was raised that the plaintiff did not seek the relief of possession. But the Division Bench held that the maintainability of the suit should be determined only with reference to the averments contained in the plaint and not with reference to the relief which the plaintiff has reserved for a future date. Paragraph-22 of the said judgment reads as follows: “ 22. We are unable to agree with the submission of the learned counsel for the defendant that the plaintiff could ask for the relief of possession in respect of the suit lands as per Sections 22 and 28 (4) of the Specific Relief Act and as such the suit must be considered as one for land. Looking to the averments made in the plaint and the reliefs sought as they are, the plaintiff has not sought for the relief of possession. It is crystallised judicial view that in determining the question of jurisdiction the plaint averments alone are to be seen. What relief the plaintiff may ask or may not ask on a future date cannot be taken into consideration in deciding the jurisdiction of the Court. As and when reliefs are asked on a future date, it is for the Courts to deal with them and decide the same at appropriate stage in accordance with law. Hence, we have no hesitation to reiterate and hold that the suit for Specific Performance of an agreement in respect of land is not a suit for land so as to be included within the ambit of Letters Patent, Class 12, (Madras) in the light of what is stated above.” II (B). Bar of Jurisdiction: 26. Inviting my attention to Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Mr. N.R. Chandran, learned Senior Counsel appearing for the fourth defendant contended that there is a bar of jurisdiction of this Court to entertain the present suit. Bar of Jurisdiction: 26. Inviting my attention to Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Mr. N.R. Chandran, learned Senior Counsel appearing for the fourth defendant contended that there is a bar of jurisdiction of this Court to entertain the present suit. Section 18 of the said Act, Act No. 51 of 1993 reads as follows: “On and from the appointed day, no Court or other Authority shall have been (sic) entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to matters specified in Section 17.” From a reading of the aforesaid provision, it is clear that the jurisdiction of all the Courts except the Supreme Court and the High Court exercising jurisdiction under Articles 226 and 227 of the Constitution, are excluded on and from the appointed day. But such exclusion is in relation to matters specified in Section 17. 27. Interestingly, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, known shortly as “SARFAESI Act”, also contains a similar provision under Section 34, but with a difference. Section 34 of the said Act reads as follows: “ 34. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or an Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial -Institutions Act, 1993 (Act 51 of 1993).” 28. While Act 51 of 1993 excludes the jurisdiction of all Courts and other authorities, except the Supreme Court and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution, in relation to the matters specified in Section 17, Section 34 of the “SARFAESI Act”, does not refer to the jurisdiction of the Supreme Court or the High Court under Articles 226 and 227 of the Constitution. Therefore, Mr. Therefore, Mr. N.R. Chandran, learned Senior Counsel for the fourth defendant contended that by virtue of Section 18 of Act 51 of 1993, the present suit is barred in law. 29. But it is too late in the day, for any one to make the aforesaid contention. It is by now well settled that the bar of jurisdiction of any Court found in either of the aforesaid Acts, do not include a suit where an action of a secured creditor like the bank is assailed as fraudulent. The issue is well settled by the judgment of the Apex Court in Mardia Chemicals Ltd. v. Union of India (2004) 4 SCC 311 , in paragraph-51 of the said judgment, the Supreme Court held as follows: “ 51. However, to a very limited extent jurisdiction of the Civil Court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the Civil Court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely, , AIR at pp.141 and 144, a judgment of the learned single Judge where it is observed as follows in para-22: (AIR p. 143): “ 22. The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularly on the basis of which relief is sought: Adams v. Scott Adams v. Scott Adams v. Scott (1859) 7 WR 213. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularly on the basis of which relief is sought: Adams v. Scott Adams v. Scott Adams v. Scott (1859) 7 WR 213. I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses” of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See GHOSE, RASHBEHARY : LAW OF MORTGAGES, Vol, II, 4th Edn., p. 784).” Again, while summarising the proposition of law, that emerged out of the entire discussion, the Supreme Court held in para-80.5 of the said judgment as follows: “ 80.5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in Civil Court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the Court.” Apart from cases where fraud and collusion are alleged, the jurisdiction of the Civil Court has been held to have been not excluded in certain other cases also. A Constitution Bench of the Supreme Court considered the question with reference to Section 9 of the Code of Civil Procedure and the Madhya Bharath Sales Tax Act, in Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78 and the law on the point was summarised in paragraph-32 of the said judgment. Sub paragraphs-(1) and (7) of paragraph-32 are relevant for the purpose of the present case and they are extracted as follows: “ 32. (1) Where the statute gives a finality to the orders of the Special Tribunals the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.” “ 32. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.” “ 32. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.” 30. Even in Allahabad Bank v. Canara Bank AIR 2000 SC 1535 : (2000) 4 SCC 406 : (2000) 3 MLJ 36, the Supreme Court considered the exclusiveness of the jurisdiction of the Tribunal and held in paragraph-22 that it was exclusive so far as the question of adjudication of the liability of the defendant to the appellant Bank is concerned. Thus, the exclusion of the jurisdiction of the Civil Court is limited only to the matters covered by Section 17 of Act 51 of 1993. 31. That the bar of jurisdiction under Section 18 of the Act is confined only to the applications filed by the bank under Section 17 of the Act is made much more clear by the Supreme Court in Indian Bank v. ABS Marine Products (P) Ltd. , (2006) 5 SCC 72 : (2006) 4 MLJ 870 . In the said case, a question arose as to whether an independent suit filed by the borrower against the bank for recovery of damages is maintainable on the file of the Civil Court and as to whether (if it is so maintainable), it was liable to be transferred to the Tribunal to be tried along with the application of the bank for recovery pending before the Tribunal. After analysing the law on the point, with reference to the statutory provisions, contained in Section 9 C.P.C., vis-a-visSections 17 and 18 of the Act, the Supreme Court held that it is not necessary for a borrower to file a counter-claim in the same application for recovery of money filed by the bank before the Tribunal and that a borrower is well entitled to file an independent suit before a Civil Court for damages. Such a suit was also held to be not liable to be transferred to the Tribunal against the wishes of the borrower, when on facts, they were not inextricably connected. Such a suit was also held to be not liable to be transferred to the Tribunal against the wishes of the borrower, when on facts, they were not inextricably connected. In paragraph-15 of the said judgment, the Supreme Court held “that the jurisdiction of Civil Courts is not barred in regard to any suit filed by a borrower or any other person against a bank for any relief.” Again in paragraph-16 of the said judgment, the law on the point was made clear in the following words: “What is significant is that Sections 17 and 18 have not been amended. Jurisdiction has not been conferred on the Tribunal, even after amendment, to try independent suits or proceedings initiated by borrowers or others against banks/financial institutions, nor the jurisdiction of Civil Courts barred in respect of such suits or proceedings.” 32. Therefore, if a suit by a borrower against the bank itself, is not completely barred by virtue of Section 18 of the Act, the suit by a third party alleging fraud and collusion against the bank and others, as a corollary, cannot be held to be not maintainable. 33. In a recent case, Industrial Investment Bank of India Ltd. v. Marshals Power and Telecom (I) Ltd. , (2007) 1 SCC 106 : (2007) 1 MLJ 637, the Supreme Court, even while holding that interim orders of injunction cannot be granted in respect of enforcement of orders passed by Tribunals, pointed out that the said principle is not without exception. In paragraph-8 of the said judgment, it was held as follows at p. 640 of MLJ: “ 6. …. That apart, to grant an injunction restraining the enforcement of orders passed by the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factors is established or prima facie made out…….” 34. Therefore, in my considered view, the jurisdiction of this Court to try the present suit where serious allegations of fraud and collusion are alleged against the defendants, in the manner in which a property was brought to sale by private negotiation, is not ousted by Section 18 of Act 51 of 1993. Hence, hold that the suit is not barred by Section 18. II (C). Res judicata: 35. Mr. Hence, hold that the suit is not barred by Section 18. II (C). Res judicata: 35. Mr. N.R. Chandran, learned Senior Counsel for the fourth defendant next contended that the plaintiff raised the very same allegations of fraud and collusion and sought to set aside the Sale Certificate issued by the Debt Recovery Tribunal, in the writ petition filed by him in W.P. No. 40073 of 2006. The learned Judge, who heard the miscellaneous petitions for stay and injunction vacated the interim order originally granted and the appeal W.A. No. 62 of 2007 was dismissed by the Division Bench. Therefore, according to the learned Senior Counsel for the fourth defendant, the plaintiff is not entitled to agitate the same issues of fraud and collusion in the present suit and that it would be barred by res judicata. 36. But I am unable to countenance the said submission of the learned Senior Cunsel for the fourth defendant for two reasons viz.: (a) The scope of enquiry in a writ petition is very limited in the sense that complicated and disputed questions of fact are not decided in a writ petition. Therefore, it is doubtful as to whether Section 11 C.P.C. could be invoked in a suit, on the basis of earlier writ proceedings, especially when no finding of facts is recorded in the writ petition. (b) In any case, the interim orders originally granted at the time of admitting the writ petition W.P. No. 40073 of 2006 were vacated by Mr. Justice S. RAJESWARAN on 19.12.2006. Though the learned Judge took note of the conduct of the writ petitioner for the purpose of exercising the discretion of granting interim orders and expressed an opinion on the same, the learned Judge did not decide any question of fact. This can be seen from-the penultimate paragraph of his judgment (paragraph-44), which reads as follows: “ 44. Though the learned Judge took note of the conduct of the writ petitioner for the purpose of exercising the discretion of granting interim orders and expressed an opinion on the same, the learned Judge did not decide any question of fact. This can be seen from-the penultimate paragraph of his judgment (paragraph-44), which reads as follows: “ 44. I have already taken a decision that whether the writ petitioner is a bona fide purchaser is question to be decided in the appropriate forum and while deciding the issue, the question whether there is an equitable mortgage and how the writ petitioner purchased the said property without verifying the original title deeds could also be gone into.” The Division Bench on appeal, took up not only the miscellaneous petitions but also took up the main writ petition itself and disposed of both the writ petition and the writ appeal on the short ground that the writ petition was not maintainable. Paragraph-36 of the judgment of the Division Bench in W.A. No. 62 of 2007 reads as follows: “ 36. In view of our findings in Point No. 1, holding the writ petition, not maintainable, we left open all other points agitated by both the parties before this Court so as to be decided by an appropriate forum.” 37. Thus, it is seen that this Court refused to go into the disputed questions of fact in the writ petition and the writ appeal and left it open to the plaintiffs to agitate those issues in an appropriate forum. In the light of the liberty so granted by the Division Bench, the present suit cannot be held to be barred by the principles of res judicata. It is true that in paragraph-26 of its judgment/the Division Bench of this Court framed three issues as arising for consideration In the writ petition, one of which was “whether sale in favour of the fourth defendant herein was hit by fraud and collusion.” But framing of the said issue, by itself, cannot bar the present suit, especially when the Division Bench recorded a finding only on one issue viz., the issue of maintainability of the writ petition and refused to answer the other issues. Hence I hold that the present suit is not barred by res judicata, on account of the previous writ proceedings. III. Merits and Prima Facie Case: 38. Hence I hold that the present suit is not barred by res judicata, on account of the previous writ proceedings. III. Merits and Prima Facie Case: 38. Having overruled the preliminary objections raised by the defendants to the jurisdiction of this Court as well as to the maintainability of the suit, let me now deal with the merits of the case. 39. As seen from the averments contained in the plaint the plaintiff alleges fraud and collusion in the entire proceedings of the Debts Recovery Tribunal, Chennai, starting from the interlocutory application filed by the third defendant-Bank for a sale of the properties by private negotiation and culminating in the issue of a Sale Certificate and the amendment of the plaint subsequent thereto. Though the plaint filed by the New Bank of India (presently the Punjab National Bank, the third defendant herein) in Suit No. 650 of 1990 on the file of the High Court of judicature at Bombay against the defendants 1 and 2 herein, contained several items of properties, the dispute now raised is only with respect to one of those items of properties viz., the land in Survey No. 43/3, bearing House List No. 58/709/801/502 being a portion of Kaneshumari, 502, Hebbal Village,BangaloreNorth Taluk. 40. The case of the defendants, in simple terms, is that the New Bank of India (now the third defendant-Bank) granted certain credit facilities to Dhanalakshmi Consolidates and Transports Pvt. Ltd (the second defendant herein). As collateral security for the due repayment of the amount due, Dhanalakshmi Consolidates and Transports Pvt. Ltd, the second defendant herein, deposited the original title deeds relating to various properties, with intent to create an equitable mortgage over those properties. One of the original title deeds so deposited allegedly by the Dhanalakshmi Consolidates and Transports Pvt. Ltd, with the Bank, was a Sale Deed dated 28.2.1964 which related to a land of the extent of 2 acres and 3-1/2 Guntas in Survey No. 43/3 Hebbal Village,Bangalore,North Taluk. The present suit schedule property which forms part of said property covered by the original Sale Deed dated 28.2.1964 actually belonged to the first defendant herein, which is a partnership firm. The first defendant herein neither borrowed “any money from the third defendant-Bank nor acted as surety for the facilities availed by the second defendant from the Bank. The present suit schedule property which forms part of said property covered by the original Sale Deed dated 28.2.1964 actually belonged to the first defendant herein, which is a partnership firm. The first defendant herein neither borrowed “any money from the third defendant-Bank nor acted as surety for the facilities availed by the second defendant from the Bank. This is seen even from the plaint filed by the third defendant Bank before the High Court of Bombay In Suit No. 650 of 1990. It is this suit which got transferred to the Debts Recovery Tribunal-II, Chennai, in T.A. No. 1 of 2004. 41. Though the first defendant was neither the borrower nor the guarantor, their property of the extent of 2 acres and 3-1/2 guntas in Survey No. 43/3, Hebbal Village,Bangalore,North Taluk, was allegedly offered as collateral security by the second defendant, on the basis that the first defendant entered into an agreement of sale with the second defendant, received consideration and transferred all the assets and liabilities of the first defendant to the second defendant and also handed over possession to the second defendant. It is also stated by the Bank that one of the partners of the first defendant firm executed a power of attorney dated 16.2.1987 in favour of the second defendant authorising the second defendant to offer the property as security. These facts are borne out by the affidavit sworn to by the Manager of the Asset Recovery Management Branch of the third defendant-Bank in I.A. No. 336 of 2006. 42. Thus, the present suit schedule property which forms part of a larger extent of 2 acres and 3-1/2 guntas in Survey No. 43/3, Hebbal Village,Bangalore,North Taluk, even according to the third defendant-Bank was offered as collateral security not by the first defendant as a borrower or guarantor, but offered as security only by the second defendant on the basis of (a) a power of attorney dated 16.2.1987 executed by the first defendant in their favour and (b) an agreement of sale by which the first defendant agreed to transfer all the assets and liabilities of the first defendant to the second defendant and put the second defendant in possession. 43. 43. But even at the time when the New Bank of India (thrird defendant herein) filed the suit on the file of the High Court of Judicature at Bombay, in the year 1990, the Bank did not have in its possession, either the original Memorandum of Deposit of Title Deeds or the Power of Attorney executed by the first defendant in favour of the second defendant or even the original Sale Deed dated 28.2.1964 allegedly deposited by the second defendant. In other words, in a suit for recovery of money and for enforcing a charge on the securities, the Bank came to Court (i) without the Memorandum of Deposit of Title Deeds; (ii) without the Power of Attorney in pursuance of which the Memorandum of Deposit of Title Deed was executed; and (iii) without the original Sale Deed allegedly deposited. 44. On account of the fact that the Bank came to Court and sought for a charge decree on the property without even these basic documents, the Bank also suffered from the absence of a proper description of the property. Therefore, in the body of the plaint as well as the schedule containing description of the property, the land in Survey No. 43/3, allegedly mortgaged with the Bank was described to have a measurement of only 3-1/2 guntas and not 2 acres and 3-1/2 guntas. 45. The land in Survey No. 43/3 measuring an extent of 2 acres and 3-1/2 guntas was sold by the first defendant herein in parts to various persons and those persons sold the property to a Company by name Arcus Technologies Pvt. Ltd. From the said Arcus Technologies Pvt. Ltd., the plaintiff got the suit schedule property (which forms part of the larger extent in Survey No. 43/3), under a Deed of Conveyance dated 5.7.2000. The sale made by the first defendant herein, of the larger extent of land in Survey No. 43/3, in favour of nine individuals, is evidenced by the document Nos. 4, 6, 8, 10, 12, 13, 14, 15 and 16 filed by the plaintiff. These Sale Deeds are dated 22.8.1994 and all of them are registered Sale Deeds. The execution of these Sale Deeds are also reflected in the Encumbrance Certificates, filed as documents. 4, 6, 8, 10, 12, 13, 14, 15 and 16 filed by the plaintiff. These Sale Deeds are dated 22.8.1994 and all of them are registered Sale Deeds. The execution of these Sale Deeds are also reflected in the Encumbrance Certificates, filed as documents. In July 1995, those nine individuals sold the portions purchased by them in favour of Arcus Technologies Pvt. Ltd. This is evidenced by the Sale Deeds filed as document Nos. 17, 18, 20, 22, 23, 25, 27, 31, 33 and 36. These Sale Deeds are also reflected in the Encumbrance Certificates filed by the plaintiff as documents. The sale by Arcus Technologies Pvt. Ltd., in favour of the plaintiff herein, is evidenced by document No. 39 dated 5.7.2000. Thus, the fact that the first defendant, dealt with the suit ‘A‘ schedule property and the larger extent of which it was a part, even in the year 1994, as its true owner cannot be disputed. The transfers made by the first defendant in the year 1994 to third parties, the transfers made by the third parties to the plaintiffs predecessor in the year 1995 and the transfers made in favour of the plaintiff are all by registered Sale Deeds. 46. As a matter of fact, the plaintiff had also mutation effected in the revenue records, as seen from the extract from the Municipal Council filed as document No. 40 along with the plaint. A portion of the land so purchased by the plaintiff was also acquired for widening the Hyderabad Bangalore Road NH-7 by the Government of India. The Award notice for the said purpose was issued by the land Acquisition Officer, National Highways, only to the plaintiff herein, as seen from the Award Notice dated 16.2.2004 filed as document No. 42. The enquiry notice dated 11.4.2005 is also filed as document No. 43. An Arbitration was initiated for enhancement of compensation and the notice of such enhancement of compensation sent by the Land Acquisition Officer to the plaintiff on 24.1.2007 is also filed as document No. 44. The payment made by the Competent Authority, National Highways, towards compensation was by way of a cheque drawn in favour of the plaintiff and the copy of the cheque is also filed as document No. 48. 47. The payment made by the Competent Authority, National Highways, towards compensation was by way of a cheque drawn in favour of the plaintiff and the copy of the cheque is also filed as document No. 48. 47. Thus, it is clear that the plaintiff claims title to the suit schedule property by virtue of the transfer of title from the first defendant to nine persons, from those nine persons to Arcus Technologies Pvt. Ltd., and from Arcus Technologies Pvt. Ltd., to themselves. In the light of these facts, the plaintiff raises the following important issues in the suit viz., • (a) Whether the second defendant actually created an equitable mortgage in favour of the Banke • (b) Whether such an equitable mortgage, even if created, was valide • (c) Whether the third defendant-Bank was entitled to sell the property by private negotiation, especially When there are so many loose endse The allegations of fraud and collusion made by the plaintiff against the defendants are spun only on the above three issues and hence it is necessary to analyse them in detail. Issue No. 1: 48. The question as to whether the first defendant or the second defendant actually created an equitable mortgage in favour of the third defendant-Bank is the first issue raised by the plaintiff. This issue is raised by the plaintiff on account of two important facts viz.; (a) that the third defendant-Bank, did not file the Memorandum of Deposit of Title Deeds allegedly executed by the second defendant on behalf of the first defendant in favour of the Bank, at the time of institution of the proceedings Suit No. 650 of 1990; and (b) that the third defendant-Bank did not even file the original Title Deeds allegedly deposited by the second defendant on behalf of the first defendant, with the Bank. The third defendant-Bank merely filed a list on the file of the High Court of Judicature at Bombay, containing the details of documents that were in their possession. At the risk of repetition, it should be pointed out that what was filed along with the plaint was only a list of documents and not the documents themselves. Therefore, the plaintiff has contended that it is highly doubtful whether a Deposit of Title Deed was made at all. 49. Mr. At the risk of repetition, it should be pointed out that what was filed along with the plaint was only a list of documents and not the documents themselves. Therefore, the plaintiff has contended that it is highly doubtful whether a Deposit of Title Deed was made at all. 49. Mr. V. Girish Kumar, learned counsel appearing for the third defendant-Bank filed a typed set of documents containing an agreement dated 16.2.1987, a Power of Attorney dated 16.2.1987, a confirmation of Deposit of Title Deed dated 16.10.1989, a letter of the Bank dated 4.3.1991 and the written statement filed by the first defendant herein in the suit. 50. At the outset, it is seen that the agreement dated 16.2.1987 is an agreement entered into between the first defendant and the second defendant, for the sale of all the assets of the first defendant in favour of the second defendant, for a total consideration of Rs. 333 lakhs. Schedule ‘A‘ to the said agreement contained a list of movable properties of the first defendant and Schedule ‘B‘ to the agreement contained a list of 9 items of immovable properties. The land in Survey No. 43/3, measuring an extent of 2 acres and 2-1/2 guntas (not 2 acres and 3-1/2 guntas) Hebbal Village,Bangalore,North Taluk is mentioned as item No. 8 under Schedule ‘B‘ to the said agreement. 51. The Power of Attorney dated 16.2.2007 executed by one M.P. Narasappa, one of the partners of the first defendant firm in favour of the Chairman and Managing Director of the second defendant-Company is the second document filed by the learned counsel for the third defendant-Bank. It is the contention of Mr. V. Girish Kumar, learned counsel for the third defendant-Bank that the second defendant actually created a mortgage by Deposit of Title Deeds in respect of the entire property in Survey No. 43/3, Hebbal Village,Bangalore,North Taluk, measuring 2 acres and 3-1/2 guntas, which admittedly belonged to the first defendant. The creation of the mortgage by the second defendant is by virtue of the agreement of sale and the power of attorney, both dated 16.2.1987. 52. The aforesaid .contention of Mr. The creation of the mortgage by the second defendant is by virtue of the agreement of sale and the power of attorney, both dated 16.2.1987. 52. The aforesaid .contention of Mr. V. Girish Kumar, learned counsel for the third defendant-Bank is also fortified by the affidavit of the Manager of the Asset Recovery Management Branch of the defend ant-Bank, filed in support of the Banks application in I.A. No. 336 of 2006 in T.A. No. 1 of 2004 on the file of the Debts Recovery Tribunal-II, Chennai. In paragraph-4 of the said affidavit, the Manager of the Asset Recovery Management Branch of the third defendant-Bank has made three important averments viz.; (a) that the second defendant-Company executed a mortgage by deposit of title deeds in pursuance of the agreement of sale entered into between the first defendant and the second defendant and in pursuance of the power of attorney dated 16.2.1987 executed by the first defendant; (b) that the second defendant-Company was put in possession of the property and the first defendant-firm was dissolved; and (c) that the entire consideration under the agreement of sale dated 16.2.1987, passed on from second defendant-Company to the first defendant firm. 53. But unfortunately for the third defendant-Bank, the above three facts could not have empowered the second defendant to create an equitable mortgage in respect of the properties owned by the first defendant, in favour of the third defendant-Bank, for the following reasons: • (a) The unregistered power of attorney, dated 16.2.1987 filed by the third defendant- Bank now in this suit, was not filed either before the High Court of Bombay or before the Debts Recovery Tribunal-II, Chennai in T.A. No. 1 of 2004; • (b) The power of attorney is not even notarised. • (c) There is no clause in the deed of power of attorney authorising the second defendant to offer the property as security. Mr. V. Girish Kumar, learned counsel for the third defendant-Bank relied upon the Clause-4 of the Deed of Power of Attorney to say that Clause-4 conferred a power to create an equitable mortgage. • (c) There is no clause in the deed of power of attorney authorising the second defendant to offer the property as security. Mr. V. Girish Kumar, learned counsel for the third defendant-Bank relied upon the Clause-4 of the Deed of Power of Attorney to say that Clause-4 conferred a power to create an equitable mortgage. Clause-4 of the Power of Attorney reads as follows: “To open Banking Accounts in any Bank or Banks and to sign, endorse, draw, make, accept retire, transfer, negotiate cheques, hundies and other negotiable papers on behalf of the said firm and execute all instruments and loan papers, solely or jointly with any other persons to receive loan amount, to renew instruments of loan papers from time to time and generally to operate upon any of our accounts.” 54. As seen from Clause-4 of the Deed of Power of Attorney, the first defendant authorised the second defendant to open accounts, negotiate papers, receive loan amount and operate any such account. But there is no specific provision for creation of an aquitable mortgage in the said power. What is worse is that the Power of Attorney describes the executant of the document M.P. Narasappa as a partner of the first defendant and as a Power of Attorney holder of all the partners. No authorisation by the other partners of the first defendant firm in favour of M.P. Narasappa has been produced before Court. Therefore, I have my own doubts whether the second defendant could have created an equitable mortgage in favour of the third defendant-Bank, on the basis of such a Power of Attorney which did not empower the second defendant to create such a mortgage. Coupled with the fact that this power of attorney dated 16.2.1987, the agreement of sale dated 16.2.1987, the Memorandum of Deposit of Title Deeds as well as the original title deeds relating to the suit property were never produced by the third defendant-Bank either before the High Court of Bombay or before the Debts Recovery Tribunal-II, Chennai, it creates a suspicion about the very creation of an equitable mortgage by the second defendant. Issue No. 2: 55. The second issue to be considered is as whether an equitable mortgage, even if there was any, created by the second defendant in favour of the third defendant on behalf of the first defendant was valid in the eye of law at all. Issue No. 2: 55. The second issue to be considered is as whether an equitable mortgage, even if there was any, created by the second defendant in favour of the third defendant on behalf of the first defendant was valid in the eye of law at all. As seen from the previous paragraph, the equitable mortgage, even according to the third defendant-Bank, was created by the second defendant as the Power of Attorney Agent of the first defendant. But the Power of Attorney was not only unregistered but also not notarised. 56. Under Section 85 of the Indian Evidence Act, 1872, a presumption is raised about the execution of a power of attorney if it is executed before the Notary Public and authenticated by the Notary Public. This presumption is not available to the third defend ant-Bank in respect of the power of attorney in question, on account of the fact that it was not notarised. In any event, the power of attorney did not empower the second defendant to create an equitable mortgage. Therefore, the, very foundation on which the third defendant-Bank sought for a charge decree against the suit schedule property viz., the power of attorney dated 16.2.1987 is very shaky. The Bank could not have accepted a Memorandum of Deposit of Title Deeds executed by the second defendant on the basis of (i) a power of attorney which was not even notarised and (ii) a power of attorney which did not empower the agent to create an equitable mortgage. 57. As a matter of fact, the first defendant, who was cited as the second defendant in the suit filed by the Bank, Suit No. 650 of 1990 (T.A. No. 1 of 2004), filed a written statement on 26.2.2006 contending that the first defendant never deposited any title deed with the Bank with intent to create any equitable mortgage. In paragraph-2 of the written statement, the first defendant made an assertion that the original title deed relating to the property was handed over to a Director, of the second defendant and that the said Director appears to have handed over those documents to the Bank without the knowledge of the first defendant. Interestingly, the written statement was signed by one M. Devendra as partner of the first defendant-firm. Interestingly, the written statement was signed by one M. Devendra as partner of the first defendant-firm. The power of attorney dated 16.2.1987 relied upon by the Bank was executed by one M.P. Narasappa as a partner of the first defendant-firm. This M.P. Narasappa described himself in the Deed of Power of Attorney not only as the partner of the first defendant-firm but also as power of attorney holder of all the other partners of the firm. In the preamble to the deed of power of attorney, Mr. M.P. Narasappa was described as follows: “Whereas I, Sri M.P. Narasappa, S/o. Late Sri M. Pakeerappa aged 45 years, Hindu residing at I Ward, Yemmiganur, a partner of. M.G. Brothers Lorry Service and as power of Attorney holder of all the partners, is running the firm under the name and style of M.G. BROTHERS LORRY SERVICE with several branches at various places in several States.” 58. In the last paragraph of the deed of power of attorney also, Mr. M.P. Narasappa described himself on similar lines as follows: “In witness whereof, I for self and as Power of Attorney holder of all the partners of the firmM.G. Brothers Lorry Service hereto set my hands hereunto oft the Sixteenth Day of February, 1987, at Madras.” 59. Thus, it is seen that the power of attorney dated 16.2.1987 has been executed by one of the partners of the first defendant firm, who described himself not only as a partner of the firm, but also as power agent of the other partners. The seal affixed at the end of the power of attorney also reads as follows: “For M.G. BROTHERS LORRY SERVICE, s/d………. (M.P. Narasappa) Partner and P.A. Holder” In other words, a power agent has executed another power in favour of the second defendant. On the basis of such a power executed by a person, who himself was described to be a power agent of others, the second defendant is said to have executed an equitable mortgage and it was also accepted by the third defendant-Bank. 60. What makes the case of the Bank more susceptible to suspicion is that the Bank did not even ask for and obtained the deeds of power of attorney executed by the other partners of the first defendant-firm in favour of M.P. Narasappa. 60. What makes the case of the Bank more susceptible to suspicion is that the Bank did not even ask for and obtained the deeds of power of attorney executed by the other partners of the first defendant-firm in favour of M.P. Narasappa. Even if it is presumed that the authority given by the other partners to M.P. Narasappa was wrongly mentioned as power of attorney, by the author of the deed of power of attorney, the case of the Bank cannot be improved, for two reasons viz., (a) that the seal of the first defendant describes M.P. Narasappa as a partner and a power of attorney holder; and (b) that at any rate, the Bank did not even ask for at least a letter of authority signed by the other partners empowering M.P. Narasappa to execute a deed of ‘power of attorney. 61. The learned counsel for the third defendant-Bank produced a copy of the letter dated 6.10.1989 written by the Managing Director of the second defendant-Company to the Manager of the Bank, confirming the deposit of title deeds made by him on 11.2.1988. Instead of clearing the air on the conduct of the Bank, this document creates more suspicion. In the list of documents found in the letter dated 6.10.1989 produced by the learned counsel for the third defendant-Bank, neither the power of attorney dated 16.2.1987 nor the agreement of sale dated 16.2.1987 executed by the first defendant in favour of the second defendant is found. It means, along with title deed dated 28.2.1964, relating to the suit schedule property, neither the original power of attorney nor the agreement of sale was deposited by the second defendant with the Bank. This failure could have been ignored under normal circumstances, but I am unable to do it in this case for the reason that the list of documents contained in the letter dated 6.10.1989 includes two agreements of sale relating to two properties in Bombay and one agreement of sale relating to a property in Hyderabad. If an agreement of sale has also been deposited by the second defendant for creating an equitable mortgage, the second defendant ought to have deposited the agreement of sale dated 16.2.1987 entered into with the first defendant as they have done in respect of other properties. 62. If an agreement of sale has also been deposited by the second defendant for creating an equitable mortgage, the second defendant ought to have deposited the agreement of sale dated 16.2.1987 entered into with the first defendant as they have done in respect of other properties. 62. The Bank had taken a definite stand before the Debts Recovery Tribunal-II, Chennai, in the application for the sale of the properties by private negotiation in I.A. No. 366 of 2006 that the first defendant received the entire sale consideration and put the second defendant in possession of the property in pursuance of the agreement of sale dated 16.2.1987. Therefore, the agreement of sale dated 16.2.1987 between the first defendant and the second defendant, disclosing a total sale consideration of Rs. 333 lakhs way back in the year 1987, was not just a paper agreement, but an agreement carrying the weight of Section 53-A of the Transfer of Property Act. But that agreement was not included in the list of documents deposited by the second defendant with the Bank, though similar agreements of sale in respect of the properties in Bombay and Hyderabad were deposited. Therefore, in my considered view, the creation of the equitable mortgage, if it is true, does not appear to be valid. 63. Before getting into the legality of the sale ordered by the Debts Recovery Tribunal-II, Chennai and the Sale Certificate issued by the Recovery Officer, it is necessary to look into the sequence of certain events, from the time when I.A. No. 336 of 2006 was taken out by the Bank in T.A. No. 1 of 2004. The sequence of those events are as follows: Sale By Private Negotiation: Issue No. 3: (a) The first defendant-firm represented by its partner M. Devendra files a written statement before the Debts Recovery Tribunal-II, Chennai, in February, 2006, claiming that the property was never offered as security and that the title deed handed over by the first defendant to the Director of the second defendant had been made use of by the second defendant without the knowledge of the first defendant. (b) On 30.6.2006, the Bank files an application in I.A. No. 336 of 2006 for permission to sell the plaint schedule properties to the fourth defendant for a consideration of Rs. 200 lakhs. (b) On 30.6.2006, the Bank files an application in I.A. No. 336 of 2006 for permission to sell the plaint schedule properties to the fourth defendant for a consideration of Rs. 200 lakhs. In the affidavit, in support of the said application, the Manager of the third defendant-Bank has admitted that the Bank came to know about the existence of an agreement of sale between the first defendant and the second defendant, only as a result of an investigation undertaken after the written statement was filed. (c) Within a month of the filing of L.A. No. 336 of 2006, M. Devendra, partner of the first defendant-firm files ah affidavit of no objection for allowing I.A. No. 33 of 2006. In the said affidavit, the deponent M. Devendra retracted from the stand taken by him in the written statement and confirmed on oath that a mortgage was created by the second defendant and that it was valid and enforceable. (d) The very same M. Devendra, who filed the affidavit of no objection before the Debts Recovery Tribunal-II, Chennai, on 1.8.2006, was a signatory to all the 9 sale deeds executed way back on 22.8.1994 in favour of 9 persons from whom the plaintiffs predecessor purchased it. All the 9 sale deeds under which the first defendant sold the entire extent of land in Survey No. 43/3, Hebbal Village,Bangalore,North Taluk, were executed by all the 16 partners of the first defendant-firm. The sale deeds were not executed by one partner either as power agent of the other partners or as a person holding the mandate of the other partners. In particular, M. Devendra was a signatory to all the 9 sale deeds dated 22.8.1994 and it was he who had sworn to the affidavit of no objection before the Debts Recovery Tribunal-II, Chennai, on 1.8.2006, after 12 years of selling the property. (e) The Debts Recovery Tribunal-II, Chennai, by a short order dated 10.8.2006 allowed I.A. No. 336 of 2006. In the order, the Debts Recovery Tribunal, recorded that even before the order aiiowing I.A. No. 336 of 2006 was passed, a payment of Rs. 50 lakhs out of the total consideration of Rs. 200 lakhs had already been paid to the Bank. In other words, the Debts Recovery Tribunal merely became a fait accompli and directed the balance amount of Rs. 150 lakhs to be paid within 15 days. 50 lakhs out of the total consideration of Rs. 200 lakhs had already been paid to the Bank. In other words, the Debts Recovery Tribunal merely became a fait accompli and directed the balance amount of Rs. 150 lakhs to be paid within 15 days. The affidavit in support of I.A. No. 336 of 2006 did not disclose any part payment of the consideration. What is worse is that the Official Liquidator was a mute spectator to these happenings. (f) Coming to the role of the Official Liquidator, it is seen from the averments in paragraph-4 of the affidavit of the Manager of the Bank in I.A. No. 336 of 2006 that the first defendant handed over possession of the property to the second defendant in pursuance of an agreement of sale. Even the affidavit of no objection filed by the first defendant firm is to the effect that all the assets and liabilities of the first defendant-firm were transferred to the second defendant-Company even in 1987. If the affidavit filed on behalf of the Bank and the affidavit of no objection filed on behalf of the first defendant had been accepted in toto by the Debts Recovery Tribunal-II, Chennai, the Debts Recovery Tribunal-II, Chennai, ought to have come to a conclusion that the property in question virtually belonged to the second defendant-Company, which was represented by the Official Liquidator. If the property had actually been transferred along with the assets and liabilities of the first defendant-firm to the second defendant-Company, then the consent or “ affidavit of no objection required for allowing I. A. No. 336 of 2006, was that of the Official Liquidator and not that of the first defendant. In other words, the Debts Recovery Tribunal-II, Chennai, could not have allowed I.A. No. 336 of 2006on the basis of an affidavit of no objection signed by the first defendant, who, according to his own affidavit, had transferred the property to the second defendant. Therefore, the consent of the Official Liquidator alone, even if the case of the Bank is accepted, could have enabled the Debts Recovery Tribunal-II, Chennai, to allow the application I.A. No. 336 of 2006. But this fact was completely ignored by the Debts Recovery Tribunal-II, Chennai, the Bank and the Official Liquidator. Therefore, the consent of the Official Liquidator alone, even if the case of the Bank is accepted, could have enabled the Debts Recovery Tribunal-II, Chennai, to allow the application I.A. No. 336 of 2006. But this fact was completely ignored by the Debts Recovery Tribunal-II, Chennai, the Bank and the Official Liquidator. (g) Towards the end of paragraph-5 of the affidavit filed on behalf of the Bank in support of I.A. No. 336 of 2006, the Bank had taken a categorical stand that the first defendant herein was actually divested of the property and that the second defendant was vested with the property in pursuance of the agreement of sale and power of attorney dated 16.2.1987. In the light of such a stand taken by the Bank, there was no question of the first defendant filing an affidavit of no objection to the private sale. If at all, any one was competent to give consent to such a sale, it was the Official Liquidator. But he did not give any consent. The fact that he did not effectively participate in the proceedings, cannot be taken to be his consent to the private sale, since his role is that of a Trustee. (h) In any event, the affidavit of one of the partners of the first defendant-firm also could not have been acted upon. The Bank has taken a definite stand that the power of attorney in favour of the second defendant-Company was executed by M.P. Narasappa, both as a partner and as a power agent of the first defendant-firm. If this is true, it is this M.P. Narasappa, who ought to have signed the affidavit of no objection in I.A. No. 336 of 2006. But the affidavit of no objection was signed by M. Devendra, who had earlier signed the written statement. He has not stated in his affidavit of no objection that he was authorised to sign on behalf of the firm, the affidavit of no objection. On the contrary, he has stated in paragraph-3 of his affidavit of no, objection that all the partners of the firm had given a power of attorney on 16.2.1987 to M.P. Narasappa. He has not stated in his affidavit of no objection that he was authorised to sign on behalf of the firm, the affidavit of no objection. On the contrary, he has stated in paragraph-3 of his affidavit of no, objection that all the partners of the firm had given a power of attorney on 16.2.1987 to M.P. Narasappa. If only the Debts Recovery Tribunal-II, Chennai, had taken care to read this affidavit in full, it could have seen that though all the partners had admittedly authorised M.P. Narasappa to act on behalf of the firm, the affidavit of no objection was filed by M. Devendra. (i) Both the Bank as well as the first defendant went one step further and contended that after the transfer of the assets and liabilities of the first defendant-firm to the second defendant-Company, the first defendant-firm itself was dissolved. In the last two sentences of paragraph-4 of the affidavit filed in support of I.A. No. 336 of 2006 on behalf of the Bank, the Bank took a stand that the first defendant-firm was dissolved. In paragraph-5 of the affidavit of no objection, M. Devendra, the partner of the first defendant-firm also endorsed the said fact and stated that a fresh partnership was floated on 15.12.1987. With such a stand taken by the Bank and endorsed by the first defendant-firm, it is not known how the consent of one of the partners was taken as a valid consent of all the other partners also. The first defendant-firm appears to have had 16 partners, as seen from the sale deeds executed in 1994. Once the Bank had taken a stand that the firm was dissolved, then the consent of all the partners of the firm ought to have been obtained, if consent was necessary. If consent was not necessary, on account of the transfer of the assets to the second defendant-firm, at least the consent of the Official Liquidator should have been obtained. (j) The affidavit of no objection does not even say that M. Devendra was swearing to the same on behalf of all the other partners. (k) After the order passed by the Debts Recovery Tribunal-II, Chennai, on 10.8.2006, allowing I.A. No. 336 of 2006, the Bank comes up with a Memo giving a detailed description of 9 properties, including the land in question. The Memo was filed on 29.8.2006. (k) After the order passed by the Debts Recovery Tribunal-II, Chennai, on 10.8.2006, allowing I.A. No. 336 of 2006, the Bank comes up with a Memo giving a detailed description of 9 properties, including the land in question. The Memo was filed on 29.8.2006. In the Memo, the property in question was stated to be of the extent of 2 acres and 3-1/2 guntas, though on the said date, the plaint schedule mentioned the extent of the property only as 3-1/2 guntas. (l) On the Memo dated 29.8.2006, the Debts Recovery Tribunal-II, Chennai, passes an order on 30.8.2006, directing the Recovery Officer to issue a Sale Certificate and also hand over possession. It is only in this order, that the Debts Recovery Tribunal-II, Chennai, wakes up to the fact that the second defendant-Company was under liquidation; and that the workmens claim under Section 529A of the Companies Act had to be satisfied. On 30.8.2006, when this order was passed, the Official Liquidator was not present and this fact was also recorded by the Debts Recovery Tribunal-II, Chennai. (m) At the instance of the Bank and the counsel for the fourth defendant (purchaser), the matter was again brought up before the Debts Recovery Tribunal-II, Chennai, “For Being Mentioned” on 31.8.2006. Curiously, the object of bringing the matter immediately on the next day “For Being Mentioned”, was stated to be the setting apart of an amount for the settlement of the claim of the workmen of the Company. Between the Bank and the Purchaser (I do not know what role the purchaser had to play), they decided that a sum of Rs. 20 lakhs can be set apart for payment to the workmen through the Official Liquidator. Accepting this suggestion from the Bank and the Purchaser, the Debts Recovery Tribunal-II, Chennai, passes an order on 31.8.2006, with the Official Liquidator being completely in the dark. (n) Following the original order dated 10.8.2006, allowing I.A. No. 336 of 2006, the subsequent order dated 30.8.2006 passed on a Memo and the order dated 31.8.2006 passed under the caption “On Being Mentioned”, the Recovery Officer issued a Sale Certificate No. 53 of 2006 dated 31.8.2006. In other words, the Sale Certificate was issued by the Recovery Officer on the same day on which the Debts Recovery Tribunal-II, Chennai, passed orders under the caption “Mentioned Case”. In other words, the Sale Certificate was issued by the Recovery Officer on the same day on which the Debts Recovery Tribunal-II, Chennai, passed orders under the caption “Mentioned Case”. (o) Within four days of the issue of the Sale Certificate, the Recovery Officer passed an order handing over possession by invoking the provisions of Rule 42 of the Second Schedule to the Income Tax Act. (p) After more than two months, of the issue of the Sale Certificate and handing over possession, the third defendant-Bank files an application in I.A. No. 557 of 2006 before the Debts Recovery Tribunal-II, Chennai, on 1.11.2006 seeking amendment to the plaint. The amendment was for the purpose of correcting the entire pleadings and the prayer in the plaint so as to indicate the extent of the land as 2 acres and 3-1/2 guntas instead of just 3-1/2 guntas. (q) On 8.11.2006, an affidavit of no objection is filed on behalf of the first defendant by M. Devendra. On the same day, the Debts Recovery Tribunal-II, Chennai, passes an order allowing the application for amendment and the amendment is also carried out immediately. The poor Official Liquidator is blissfully ignorant of all that had happened. (r) It is important to note that after the Recovery Officer issued an order dated 4.9.2006, purportedly handing over possession, the plaintiff herein filed a Civil Suit, on the file of the City Civil Court/ Bangalore on 19.9.2006. Subsequently, the plaintiff filed a writ petition and obtained an interim order on 19.10.2006. It is during the subsistence of the interim order, granted by this Court, that the Bank moved an application for amendment in I.A. No. 557 of 2006. In other words, there was an interim stay of further proceedings in T.A. No. 1 of 2004 on the file of the Debts Recovery Tribunal-II, Chennai, granted by this Court in M.P. No. 3 of 2006 in W.P. No. 40073 of 2006. Despite the interim stay of further proceedings, the Bank sought amendment of the plaint on 1.11.2006 and it was also ordered on 8.11.2006. (s) Under normal circumstances, if a Sale Certificate had been issued even before the plaint schedule got amended, a consequential amendment to the Sale Certificate would also be sought for. Despite the interim stay of further proceedings, the Bank sought amendment of the plaint on 1.11.2006 and it was also ordered on 8.11.2006. (s) Under normal circumstances, if a Sale Certificate had been issued even before the plaint schedule got amended, a consequential amendment to the Sale Certificate would also be sought for. But in this case, such, a consequential amendment did not become necessary in view of the fact that the Sale Certificate No. 53 of 2006 dated 31.8.2006 mentioned the extent of the land as 2 acres and 3-1/2 guntas. On the date on which the Sale Certificate was issued mentioning the extent of land as 2 acres and 3-1/2 guntas, the plaint schedule, mentioned the extent only as 3-1/2 guntas. Since the Sale Certificate had already mentioned the extent as 2 acres and 3-1/2 guntas even on 31.8.2006 (perhaps with a lot of foresight and premonition), there was no necessity for the Bank and the Purchaser to seek an amendment of the Sale Certificate after the amendment of the plaint schedule. Normally, an amendment of the Sale Certificate would follow an amendment to the plaint schedule. But in this case, an amendment of the plaint schedule followed the description in the Sale Certificate. 64. Thus, a shadow is cast upon the entire proceedings starting from (i) the manner in which I.A. No. 336 of 2006 was taken out, (ii) the manner in which the consent affidavit of one of the partners of the first defendant-firm was filed and accepted, (iii) the indifference on the part of the Official Liquidator, (iv) the manner in which I.A. No. 336 of 2006 was allowed on 10.8.2006 and modified on 30.8.2006 on a Memo and later further modified “On Being Mentioned” and (v) the amendment ordered in November 2006 to the plaint schedule, after the issue of the Sale Certificate two months earlier. In this background of facts, the allegations of fraud and collusion made by the plaintiff assumes significance. 65. It is seen from the application I.A. No. 336 of 2006 filed by the Bank on 30.6.2006 and the Memo filed by the Bank on 29.8.2006 that the Bank sought to sell the following 9 items of properties to the fourth defendant by way of private negotiations: • (1) Land in Survey No. 43/3, Hebbal Village,Bangalore,North Taluk - 2 acres and 3-1/2 guntas. • (2) Land in Anantapur, Andhra Pradesh - 4.20 acres. • (3) Land in Anantapur District - 2.50 acres. • (4) Land and Building in Adoni, Kurnool District,Andhra Pradesh - 5,625 sq.ft. • (5) Truck Terminal Door Nos. 44,45 and 46 in APM Complex, Vasavi, Navi, Mumbai. • (6) A building in Ansa Industrial Estate, Andheri East,Mumbai. • (7) Plot No. 20 in Auto Nagar, Rangareddy District,Hyderabad - 17.52 cents. • (8) Land in Kotagundhunasi Village, Hubli Taluk - 1.37 acres. • (9) Plot No. 74 in Pimpri Chinchwad New Township, Pune, measuring 4.80 sq.mtrs. 66. All the above properties were sought to be sold by the Bank in one single lot to the fourth defendant for a total sale consideration of Rs. 200 lakhs. The Bank did not produce any Valuation Certificate in respect of each of these properties, before the Debts Recovery Trlbunal-II, Chennai, to satisfy the conscience of the Debts Recovery Tribunal-II, Chennai, that the private sale by negotiation was transparent and fair and reasonable. 67. In fact, in. the affidavit of the Bank in support of I.A. No. 336 of 2006, there is not even a whisper (i) as to why a private saleby negotiation was preferred and (ii) as to how the value of Rs. 200 lakhs was arrived at in respect of 9 items of properties in different locations, including Anantapur, Hyderabad, Hubli, Mumbai, Pune and Bangalore. 68. Curiously, even the first order passed by the Debts Recovery Tribunal-II, Chennai, on 10.8.2006 does not disclose as to how the Debts Recovery Tribunal-II, Chennai, was satisfied (a) about the consideration fixed and (b) about the necessity for a private sale. On the other hand, the order dated 10.8.2006 passed by the Debts Recovery Tribunal-II, Chennai, proceeds on an erroneous basis as though the application for sale was taken out by the first defendant herein and not by the applicant-Bank. 69. Since the order dated 10.8.2006 passed by the Debts Recovery Tribunal-II, Chennai, allowing the application I.A. No. 336 of 2006 did not contain any plausible reason for the private sale and any justification for the sale price fixed, the Bank filed a Memo on 29.8.2006. While passing orders on the Memo on 30.8.2006, the Debts Recovery Tribunal-II, Chennai, makes amends for the mistake committed earlier. While passing orders on the Memo on 30.8.2006, the Debts Recovery Tribunal-II, Chennai, makes amends for the mistake committed earlier. In the said order, dated 30.8.2006, the Debts Recovery Tribunal-II, Chennai, records that there was a lot of encroachment in those properties and that it can be sold only to the best offer which was being given by the fourth defendant herein. The order does not reflect whether any material was placed before the Debts Recovery Tribunal-II, Chennai, to come to such a conclusion or whether there was any personal knowledge on the part of the Tribunal to come to such a conclusion. 70. As a matter of fact, it is contended by Mr. P.S. Raman, learned Additional Advocate General appearing for the plaintiff that the present suit schedule property which is only a part of one of those 9 Items of properties sold by the Debts Recovery Tribunal-II, Chennai, is itself of the market value of Rs. 35 crores as on date. But all the 9 items of properties have been sold together for a consideration of Rs. 2 crores. It is in this context, that the failure of the Bank and the failure of the Debts Recovery Tribunal-II, Chennai, to take a Valuation Certificate on record before passing an order, assumes significance. First of all, the interest of the Company under liquidation represented by the Official Liquidator was involved. In any event, the interest of the Bank itself appears to have been sacrificed in the process. It is seen from the affidavit filed by the Bank in I.A. No. 336 of 2006 that the claim of the Bank in the suit was for recovery of more than Rs. 300 lakhs, even as in the year 1990 when the suit was filed. Therefore, at the time when the sale was approved by the Debts Recovery Tribunal-II, Chennai, in the year 2006, the total claim of the Bank would have easily crossed a sum of Rs. 10 crores. If the Debts Recovery Tribunal-II, Chennai, had insisted upon valuation certificates for the properties sought to be sold, there was a possibility for the Debts Recovery Tribunal-II, Chennai, to ascertain if the properties could fetch more amount. That would have been in the interest of the Bank also. 71. 10 crores. If the Debts Recovery Tribunal-II, Chennai, had insisted upon valuation certificates for the properties sought to be sold, there was a possibility for the Debts Recovery Tribunal-II, Chennai, to ascertain if the properties could fetch more amount. That would have been in the interest of the Bank also. 71. By virtue of Section 29 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the provisions of the Second and Third Schedules to the Income Tax Act, 1961 and the Income Tax (Certificate Proceedings) Rules, 1962 as in force from time-to-time shall apply to the proceedings before the Debts Recovery Tribunal. Rule-9 of the Second Schedule to the Income Tax Act, 1961, which bars the jurisdiction of the Civil Court in respect of an action taken by a Tax Recovery Officer, also provides an exception. Rule-9 reads as follows: “ 9. General bar to jurisdiction of Civil Courts, save where fraud alleged.-Except as otherwise expressly provided in this Act, every question arising between the Tax Recovery Officer and the defaulter or their representatives, relating to the execution, discharge or satisfaction of a Certificate, or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such Certificate, shall be determined, not by suit, but by order of the Tax Recovery Officer before whom such question arises. Provided that a suit may be brought in a Civil Court in respect of any such question upon the ground of fraud.” Therefore, even the aforesaid Rule does not bar the jurisdiction of the Civil Court if a question is raised on the ground of fraud. 72. Rules 37 to 44 of the Second Schedule to the Income Tax Act, 1961 provides a detailed procedure to be followed for the sale of a movable property for recovery of dues. Rules 43 and 44 prescribe sale by public auction as the accepted mode of recovery of dues. The Rules do not contemplate a private sale by negotiation. 73. Rules 52 to 68-B provide the procedure for the sale of an immovable property. Even these Rules do not contemplate the sale of a property by private negotiation. Therefore, the order passed by the Debts Recovery Tribunal-II, Chennai, permitting the sale of the property by private negotiation, does not appear to have legal sanction. 74. 73. Rules 52 to 68-B provide the procedure for the sale of an immovable property. Even these Rules do not contemplate the sale of a property by private negotiation. Therefore, the order passed by the Debts Recovery Tribunal-II, Chennai, permitting the sale of the property by private negotiation, does not appear to have legal sanction. 74. In contra distinction to the absence of a specific provision under Act 51 of 1993 for the sale of a property by private negotiation, the SARFAESI Act, 2002, enables a Secured Creditor under Section 13(4)(a) of the Act to take possession of the securities with the right to transfer them. Rule-8 of the Security Interest (Enforcement) Rules, 2002, prescribes the procedure for the sale of immovable secured assets, by the Authorised Officer, in exercise of the power conferred upon him under Section 13 of the SARFAESI Act, 2002. Sub Rule (5) of Rule 8 enumerates the steps to be taken by the Authorised Officer for the sale of the secured assets. Sub Rule (5) of Rule 8 of Security Interest (Enforcement) Rules, 2002, reads as follows: “ (5) Before effecting sale of the immovable property referred to in sub-rule (1) of Rule 9, the Authorised Officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods: (a) by obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying such assets; or (b) by inviting tenders from the public; (c) by holding public auction; or (d) by private treaty.” 75. As seen from the above Rule, even though SARFAESI Act, 2002, and the Security Interest (Enforcement) Rules, 2002, authorises a Secured Creditor to sell an immovable secured asset by private treaty, the rule enjoins upon the Authorised Officer, a duty to obtain a valuation of the property from an approved valuer and fix a reserve price for the property. Thus, the power to sell a secured asset by private treaty conferred by the SARFAESI Act and the Rules issued thereunder, is also not an unbridled power, but a power circumscribed by some procedure, to make the exercise of such a power, fair, reasonable and devoid of arbitrariness. 76. Thus, the power to sell a secured asset by private treaty conferred by the SARFAESI Act and the Rules issued thereunder, is also not an unbridled power, but a power circumscribed by some procedure, to make the exercise of such a power, fair, reasonable and devoid of arbitrariness. 76. While-so, it is not known as to how the Debts Recovery Tribunai-II, Chennai, permitted a sale by private treaty - • (a) Without a Valuation Certificate. • (b) Without the consent of the Official Liquidator, representing the second defendant-Company (which according to the Bank was the owner of the property). • (c) Without the consent of the other partners of the first defendant-firm (despite a pleading that the firm was already dissolved) and • (d) Without even ensuring that at least the Bank gets a fair deal out of the whole transaction. Thus, the Debts Recovery Tribunal-II, Chennai, committed serious errors of procedure by permitting the sale of properties (i) without satisfying itself that those properties were secured assets; (ii) without getting the consent of the actual owners; (iii) without satisfying itself about the market value of those properties; and (iv) without there being a procedure for sale by private treaty, under Act 51 of 1993. 77. So many loose ends pointed out above, viz.: (a) The lack of necessary averments in the affidavit in support of I.A. No. 336 of 2006 filed by the Bank, justifying both the sale by private treaty and the sale consideration fixed. (b) The acceptance of an affidavit of consent from one of the 16 partners of the first defendant-firm despite clear cut pleading that there was another partner, who was holding the power of an attorney from all the 16 partners to act on their behalf. (c) The acceptance of an affidavit of no objection from one of the partners of the first defendant-firm despite an admission that the firm had been dissolved. (d) The failure to direct the Official Liquidator to examine the request of the Bank, especially in the light of the fact that according to the Bank and the first defendant, the property already vested in the Company under liquidation. (e) The failure of the Bank to produce the Memorandum of Deposit of Title Deeds as well as the Original Title Deed relating to the property, at any time during the proceedings in the past 16 years. (e) The failure of the Bank to produce the Memorandum of Deposit of Title Deeds as well as the Original Title Deed relating to the property, at any time during the proceedings in the past 16 years. (f) The failure of the Bank to produce either the agreement of sale or the power of attorney dated 16.2.1987 executed by the first defendant In favour fo the second defendant. (g) The absence of a power under the power of attorney dated 16.2.1987, to offer the property as a collateral security to the Bank. (h) The description of the property both in the body of the plaint and in the plaint schedule mentioning the extent of land only as 3-1/2 guntas from the year 1990 upto the year 2006. (i) The order dated 10.8.2006 passed by the Debts Recovery Tribunal-II, Chennai, allowing the application I.A. No. 336 of the Bank for the sale of the plaint schedule property, when the plaint schedule mentioned the extent of land only as 3-1/2 guntas. (j) The manner in which a Memo was filed on 29.8.2006 after I.A. No. 336 of 2006 was disposed of. (k) The manner in which the extent of property was mentioned in the Memo filed on 29.8.2006, as two acres and 3-1/2 guntas, though it did not correspond to the plaint schedule. (l) The manner in which an order was passed by the Debts Recovery Tribunal-II, Chennai on 30.8.2006 on the Memo dated 29.8.2006, when I.A. No. 336 of 2006 was not actually pending. (m) The manner in which the Debts Recovery Tribunal-II, Chennai, took up the matter once again on 31.8.2006 as a “Mentioned Case” and passed yet another order. (n) The manner in which the Recovery Officer issued a Sale Certificate on the same date viz., 31.8.2006 mentioning the extent of the property as 2 acres and 3-1/2 guntas, so as to correspond to the Memo filed on 29.8.2006 though It was not In conformity with the plaint schedule. (o) The manner in which an application for amendment of the plaint was taken out by the Bank in I.A. No. 557 of 2006 on 1.11.2006, long after the Sale Certificate was issued. (o) The manner in which an application for amendment of the plaint was taken out by the Bank in I.A. No. 557 of 2006 on 1.11.2006, long after the Sale Certificate was issued. (p) The manner in which the amendment application was ordered on 8.11.2006 by the Debts Recovery Tribunal-II, Chennai, permitting the amendment of the plaint schedule to correct the extent as 2 acres and 3-1/2 guntas from a mere 3-1/2 guntas, despite an interim stay of all further proceedings before the Debts Recovery Tribunal, granted by this Court in M.P. No. 3 of 2006 in W.P. No. 40073 of 2006. (q) The absence of power on the part of the Debts Recovery Tribunal-II, Chennai, to permit the sale by private treaty, etc., all indicate that the plaintiff is justified in assailing the entire proceedings as being vitiated by fraud and collusion. Right from tne case of S.P. Chengaivaraya Naidu and Others v. Jegannath S.P. Chengaivaraya Naidu and Others v. Jegannath S.P. Chengaivaraya Naidu and Others v. Jegannath AIR 1994 SC 853 : (1994) 1 SCC 1 , the Supreme Court has repeatedly held that fraud vitiated all judicial acts. In State of Andhra Pradesh v. T. Suriya Chandra Rao 2006 (1) LW 547, the Supreme Court held that fraud and justice never dwell together. In paragraph-11 of the said judgment, the Supreme Court held that “ fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence”. The same view was expressed in a recent judgment of the Apex Court in A. V. Pappayya Sastry and Others v. Government of Andhra Pradesh and Others V. Pappayya Sastry and Others v. Government of Andhra Pradesh and Others V. Pappayya Sastry and Others v. Government of Andhra Pradesh and Others AIR 2007 SC 1546 : (2007) 4 SCC 221 : (2007) 3 MLJ 784. In paragraph-26 of the said judgment, the Apex Court held that “fraud is an extrinsic collateral act which vitiates all judicial acts whether in rem or in personam”. Therefore, in my considered view, the plaintiff has established a prima facie case that there was fraud and collusion in the entire proceedings culminating in the sale of the suit schedule property. 78. Therefore, in my considered view, the plaintiff has established a prima facie case that there was fraud and collusion in the entire proceedings culminating in the sale of the suit schedule property. 78. The balance of convenience is also certainly in favour of the plaintiff for the simple reason that the suit property was sold by all the 16 partners of the first defendant-firm in favour of 9 individuals in the year 1994. Those 9 individuals sold the property to Arcus Technologies Pvt. Ltd., in the year 1995, who in turn sold it to the plaintiff in the year 2000. The plaintiff has filed all these sale deeds of the years 1994, 1995 and 2000 and has also filed the Encumbrance Certificates and the Revenue Records. The plaintiff has even received compensation from the National Highways Authority of India. Therefore, if the fourth defendant, who is only a purchaser of the property through the Debts Recovery Tribunal-II, Chennai, under suspicious and questionable circumstances, allowed to enjoy the property by altering its character and nature, the plaintiff would suffer an irreparable loss and hardship. If ultimately, this Court comes to a conclusion that the fourth defendant had a role to play in the fraud and collusion, which prima facie appears to be so, any indulgence granted to him at this stage as though he had balance of convenience, would become irredeemable. As a matter of fact, in cases of this nature, the character of the property is to be preserved, as held by the Supreme Court in Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass Faridkot v. Baldev Dass Faridkot v. Baldev Dass AIR 2005 SC 104 : (2004) 8 SCC 488 . In paragraph-10 of the said judgment, the Supreme Court held that unless and until a case of irreparable loss or damage is made out to a party to the suit, the Court should not permit the nature of the property to be changed and that if the claim of the party seeking injunction, is found to be baseless ultimately, it is always open to the Court to award damages for the loss suffered. 79. Therefore, I am of the considered view that the plaintiff is entitled to succeed in all these applications. 79. Therefore, I am of the considered view that the plaintiff is entitled to succeed in all these applications. Consequently, O.A. No. 729 of 2007 for an interim injunction, Application No. 4144 of 2007 for stay of operation of the Sale Certificate and A. No. 4145 of 2007 for leave under Order IIRule 2 C.P.C. are allowed. The application taken out by the fourth defendant A. No. 4349 of 2007 for rejecting the plaint on the grounds of jurisdiction and maintainability, is dismissed for the reasons indicated in Parts I and II of this order.