JUDGMENT : RAJ MANI CHOUHAN, J. (Chairperson) 1. This Appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) has been filed by the appellants (original applicants) (hereinafter referred to as the appellants) against the judgment and order dated 26th August, 2011 passed by Shri Shrikant G. Kulkarni, the learned Presiding Officer, Debts Recovery Tribunal, (DRT) Pune, in the Securitisation Application (S.A.) No. 22/2011 (Navalakha Agencies v. Indian Bank) by which the learned Presiding Officer, DRT, Pune, has dismissed the S.A. filed by the applicants with costs. Most of the relevant facts are not in dispute between the parties which may, in nutshell, be stated as follows: Admittedly, the appellant No. 1 Navalakha Agencies, a registered partnership firm, having its place of business at 1379, Bhavani Peth, Pune, availed certain credit facilities in the year 1990 towards Working Capital business of the firm which was sanctioned by the respondent. No. 1, the Indian Bank, a Banking company constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, from its branch at Nana Peth, Pune. The appellant No. 2 Mr. Ghanshyam Lalchand Navalakha, one of the partners of the firm, stood guarantor to the above loan sanctioned by the respondent No. 1 Bank. He to secure the amount of loan created equitable mortgage of his land bearing Sub-Plot No. 4, Hissa No. 4, admeasuring 1060 sq. mtrs, out of Final Plot No. 493-B, CTS No. 1118/B admeasuring 64.85 hectares, situated in Shivaji Nagar, Bhamburda, within limit of Taluka and District and Sub-District Haveli, District Pune (hereinafter referred to as the said plot). The respondent No. 1 Bank from time-to-time further extended the credit facility to the appellant No. 1 but the appellant No. 1 could not keep the said account update, therefore, its account was classified by the respondent No. 1 Bank as Non Performing Asset (N.P.A.) on 31st March, 1993. 2. The respondent No. 1 Bank thereafter filed a Special Civil Suit No. 952/1995 in the Court of Civil Judge (Sr. Division), Pune, against the borrower and the guarantors, for recovery of its dues along with future interest. In the meantime the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the RDDBFI Act) came into force. Consequently the Debts Recovery Tribunal, Pune, was established. Division), Pune, against the borrower and the guarantors, for recovery of its dues along with future interest. In the meantime the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the RDDBFI Act) came into force. Consequently the Debts Recovery Tribunal, Pune, was established. In pursuant to the provision under the RDDBFI Act, the above Special Civil Suit No. 952/1995 pending in the Court of Judge (Sr. Division), Pune, stood transferred to DRT, Pune, where it was registered as Original Application No. 792/2001. 3. The said O.A. was contested by the defendants. The parties filed documentary evidence and claim affidavit in support of their contentions. The learned Presiding Officer, DRT, Pune, vide judgment and order dated 7th October, 2003 allowed the O.A. for Rs. 28,59,305.10 with future interest @ 17.50% p.a. till full and final realization of the decretal amount. The learned Presiding Officer further ordered that there will be charge of the Bank on the said plot. The learned Presiding Officer consequently ordered for issuance of Recovery Certificate (R.C.). When the Defendants failed to pay the decretal amount, the respondent No. 1 Bank moved an application before the learned Recovery Officer, DRT, for initiating the Recovery Proceeding on the basis of the Recovery Certificate by the learned Presiding Officer. The R.O. accordingly initiated the Recovery Proceeding (R.P.) No. 46/2004 for recovery of the amount in the R.C. 4. The defendants being aggrieved by the impugned judgment and order dated 7th October, 2003 passed by the learned Presiding Officer, DRT, preferred an appeal No. 136/2004 under Section 20 of the RDDBFI Act before Debts Recovery Appellate Tribunal, Mumbai (hereinafter referred to as the DRAT, Mumbai). The R.O. in the recovery proceeding issued warrant of attachment of the said plot on 9th September, 2004 and accordingly attached the said plot on 13th September, 2004. The respondent No. 1 Bank got the said plot valued. The valuer valued the market value of the said plot as Rs. 1,99,67,000/-. The R.O. on 20th December, 2004 ordered for issuance of proclamation of sale notice. 5. Accordingly, the sale notice was published on 27th December, 2004 for sale of the said plot. In appeal filed by the defendants before the DRAT, Mumbai the DRAT, Mumbai, vide its order dated 14th January, 2005 stayed the recovery proceeding subject to deposit of Rs. The R.O. on 20th December, 2004 ordered for issuance of proclamation of sale notice. 5. Accordingly, the sale notice was published on 27th December, 2004 for sale of the said plot. In appeal filed by the defendants before the DRAT, Mumbai the DRAT, Mumbai, vide its order dated 14th January, 2005 stayed the recovery proceeding subject to deposit of Rs. 14,29,903/- made by the appellant i.e., 50% of the amount shown in the R.C. The defendants communicated the order passed by the DRAT, Mumbai, to the R.O. who adjourned the sale upto the 16th March, 2005. The defendants thereafter informed the R.O. that they had deposited the amount as per the order of the DRAT, Mumbai, which was condition precedent to continue the order of stay. 6. Admittedly the respondent No. 1 Bank in addition to filing of the above O.A. for recovery of its dues invoked the provision under SARFAESI Act too, to recover its dues. The respondent No. 1 Bank on 3rd December, 2008 issued a demand notice under Section 13(2) of the SARFAESI Act to the borrower and its partners demanding an amount of Rs. 2,78,68,301/-. The partners of the appellant No. 1 replied to the notice but they did not make any payment. The respondent No. 1 Bank thereafter sent a rejoinder to the reply of the notice sent by the appellant and thereafter they further proceeded under the SARFAESI Act and issued possession notice under Section 13(4) of the SARFAESI Act on 19th January, 2011 to the borrower and the guarantors. The respondent No. 1 Bank thereafter issued possession-cum-sale notice on 21st January, 2011. The said plot i.e., the secured asset was sold by the Authorized Officer of the respondent No. 1 Bank under the SARFAESI Act on 25th February, 2011 by way of public auction. 7. The appellants being aggrieved by the measures taken by the respondent No. 1 Bank under the SARFAESI Act filed Securitisation Application No. 22/2011 before the DRT, Pune challenging the measures taken by the respondent No. 1 Bank under Sections 13(2) and 13(4) of the SARFAESI Act. The appellants in their S.A. alleged that six brothers of Navalakha family viz., (1) Popat Lalchand Navalakha, (2) Mr. Birchand Lalchand Navalakha, (3) Mr. Nayansukh Lalchand Navalakha, (4) Bansilal Lalchand Navalakha, (5) Mr. Ghanshyamdas Lalchand Navalakha, and (6) Mr. Kesharchand Lalchand Navalakha had purchased approximately 5,616 sq. mtrs. i.e., 60,450 sq. ft. The appellants in their S.A. alleged that six brothers of Navalakha family viz., (1) Popat Lalchand Navalakha, (2) Mr. Birchand Lalchand Navalakha, (3) Mr. Nayansukh Lalchand Navalakha, (4) Bansilal Lalchand Navalakha, (5) Mr. Ghanshyamdas Lalchand Navalakha, and (6) Mr. Kesharchand Lalchand Navalakha had purchased approximately 5,616 sq. mtrs. i.e., 60,450 sq. ft. of land forming part of the C.T.S. No. 1118/B situated in Bhamburda, Shivajinagar, Pune, by separate sale deeds dated 23rd February, 1973. They got their purchased plots through sale deeds amalgamated into one unit in accordance with provisions under the Bombay Provincial and Corporation Act, 1949 read with Developer Control Orders. In this way, the total land purchased by the six brothers of Navalakha family became one unit. There is a building of Navalakha family on the said land which is jointly owned by them. They wanted to raise further constructions. Consequently they got the plan of two buildings sanctioned and raised the construction upto the plinth level. Since it was one unit of all the Navalakha brothers which was indivisible, therefore, none of the co-owners could transfer or mortgage of any portion of the said plot No. 493/B. 8. The appellants have further alleged that the respondent No. 1 Bank issued demand notice under Section 13(2) of the SARFAESI Act on 3rd December, 2008 to Navalakha Agencies and its seven partners i.e., (1) Mr. Ghanshyam Lalchand Navalakha, (2) Smt. Shantabai Biradhichand Navalakha, (3) Pushpa Bansilal Navalakha, (4) Smt. Lalitabai Kesarchand Navalakha, (5) Shri Narendra Nayansukhlal Navalakha, (6) Dhananjay Nayansukhlal Navalakha, (7) Mr. Prakash Nayansukhlal Navalakha (partners at Sr. Nos. 5, 6 and 7 being legal heir of the late Mr. Nayansukh Lalchand Navalakha). The respondent No. 1 Bank thereafter issued possession notice under Section 13(4) of the SARFAESI Act. 9. The appellants have challenged the measures taken by the respondents under the SARFAESI Act, firstly on the ground that the description of the said plot i.e., the mortgaged property shown by the respondent No. 1 Bank in the said Special Civil Suit, the notice issued under Section 13(2) of the SARFAESI Act and the possession notice issued under Section 13(4) of the SARFAESI Act does not match with each other. The said plot has been described in the Special Civil Suit. The said plot has been described in the Special Civil Suit. No. 952/1994 referred above as follows: all that piece and parcel of Land at S. No. 493-B, Sub Plot No. 4, Hissa No. 4 (New 1118) Shivaji Nagar, Bhamburda, within the limits of Taluka and Registration Sub-District Haveli and limit of District and Registration District Pune, admeasuring about 60,000 sq. ft. out of which one-sixth share of 10,000 sq. ft. The respondent No. 1 Bank in the demand notice issued to the borrower and the guarantor, under Section 13(2) of the SARFAESI Act, has described the said plot as follows: Plot No. 493 B, Hissa No. 4, Sub Plot No. 4 admeasuring about 1060 sq. mtrs. out of CTS No. 1118, Lakaki Road, Bhamburda (Shivaji Nagar), Tal. Haveli, Dist. Pune belonging to 2nd notice viz., Mr. Ghanshyam Lalchand Navalakha is mortgaged with the respondent Bank. Whereas the respondent No. 1 Bank in the possession notice dated 19th January, 2011 issued to the borrower and the guarantor, under Section 13(4) of the SARFAESI Act, has described the said plot as follows: Plot No. 493 B, Hissa No. 4, Sub Plot No. 4, admeasuring about 1060 sq. ft. out of CTS No. 1118, Lakaki Road, Bhamburda (Shivaji Nagar), Tal, Haveli Dist. Pune, belonging to Shri G.L. Navalakha, which is bounded as follows: On or towards the east : By final Plot No. 493 A. On or towards the south : By Div. No. 5 A & BFP No. 493 B. On or towards north : By Div No. 3 of FP No. 493 B. On or towards west : By final plot No. 494. The description of the plot described above at three stages does not match with each other, therefore, the noticed issued by the respondent No. 1 Bank under Sections 13(2) and 13(4) of the SARFAESI Act are defective and no measures can be taken by the respondent Bank on the basis of such defective notices. 10. The second ground taken by the appellant is that the said plot is portion of Plot No. 493B, (New 118) which is one unit jointly owned by 6 Navalakha brothers. The said plot was never demarcated on the spot, rather it formed part of joint property. The plot No. 1118-B was never partitioned among the Navalakha brothers. 10. The second ground taken by the appellant is that the said plot is portion of Plot No. 493B, (New 118) which is one unit jointly owned by 6 Navalakha brothers. The said plot was never demarcated on the spot, rather it formed part of joint property. The plot No. 1118-B was never partitioned among the Navalakha brothers. The said plot was joint of all the Navalakha brothers and no one could create mortgage of the said Plot without consent of the other brother who were co-owners of the plot. The so-called mortgage of the said plot created by one brother without consent of all the brothers/co-owners was illegal and void in the eyes of law. 11. The third ground taken by appellants is that the O.A. No. 792P/2001 filed by the respondent No. 1 Bank was allowed by the learned Presiding Officer, DRT, vide judgment and order dated 7th October, 2003. The defendants being aggrieved by the judgment and order passed by the learned Presiding Officer preferred Appeal under Section 20 of the RDDBFI Act before the DRAT, Mumbai. They had also prayed for interim relief to stay the recovery proceeding (R.P. No. 46/2004) pending before the R.O. initiated by him on the basis of the R.C. issued by the learned Presiding Officer, DRT, in the above O.A., The DRAT, Mumbai, was pleased to stay the R.P., therefore, the respondent No. 1 Bank could not proceed against the said plot under the SARFAESI Act violating the order of stay passed by the DRAT. The provision under the SARFAESI Act could not be invoked by the respondent Bank to frustrate the interim order of stay passed by the DRAT, Mumbai, in appeal filed by the appellant under Section 20 of the RDDBFI Act. 12. The fifth ground taken by the appellant is that the respondent Nos. 1 and 2 have neither taken symbolic possession nor physical possession of said plot but they have auctioned the same without following the procedure provided under the SARFAESI Act as well as the Rules framed thereunder. The appellants have, therefore, prayed for following reliefs in their S.A.: (a) That the mortgage created in favour of respondent No. 1 be declared illegal, null and void. The appellants have, therefore, prayed for following reliefs in their S.A.: (a) That the mortgage created in favour of respondent No. 1 be declared illegal, null and void. (b) That the action initiated by respondent No. 1 in respect of Schedule Property under the provisions of the SARFAESI Act, 2002, be declared illegal, null and void and be aside. (c) That the respondent Bank be directed to remove the possession notice immediately from the premises under occupation of the applicant. (d) The auction conducted by respondent No. 1 and respondent No. 2 in respect of Sch. II property be set aside. (e) Respondent Nos. 1 and 2 be restrained permanently from confirming auction sale of Sch. II property. (f) The cost of this application be awarded to the applicant. 13. The respondent opposing the S.A. filed by the appellants filed their Written Statement. They in their Written Statement have denied the facts alleged by the appellants in their application. The contention of the respondents is that the appellants have not impleaded the necessary parties in their S.A., therefore, the same is bad for non-joinder of the necessary parties. The RDDBFI Act and the SARFAESI Act are different Acts, however, both are supplementary to each other and they are not contradictory to each other. In the famous case 301810, the Hon'ble Apex Court has held that the proceedings under the RDDBFI Act as well as the proceedings under the SARFAESI Act can go parallel. In this case, the respondent No. 2, the Authorized Officer of respondent has conducted the auction sale of the said plot on 28th February, 2011 in accordance with the procedure laid down under the SARFAESI Act and the rules framed thereunder on 28th February, 2011 which has already been confirmed too in favour of the prospective purchaser. Therefore, the S.A. filed by the appellants is not maintainable. The said Plot as described in O.A., in demand notice issued by the respondent Bank under Section 13(2) of the SARFAESI Act and in possession notice issued under Section 13(4) of the SARFAESI Act are same. There is no material difference in the description of the mortgaged plot in the above O.A. as well as the notice issued by the respondent Bank. The possession-cum-sale notice was displayed on the said plot of the appellant No. 2, Mr. Ghanshyam Lalchand Navalakha, and not on the plot of Mr. Kesarchand Navalakha. There is no material difference in the description of the mortgaged plot in the above O.A. as well as the notice issued by the respondent Bank. The possession-cum-sale notice was displayed on the said plot of the appellant No. 2, Mr. Ghanshyam Lalchand Navalakha, and not on the plot of Mr. Kesarchand Navalakha. The respondent No. 2 has sold the same plot which belonged to the appellant No. 2 and was mortgaged by him in favour of the respondent No. 1 Bank to secure the amount of loan availed by the appellant No. 1. All the brothers of Navalakha family had purchased land approximately 5,616 sq. mtrs. i.e., 60,450 sq. ft. forming part of the said CTS No. 1118/B situated in Bhamburda, Shivaji Nagar, Pune. They had purchased separate portions, bearing separate numbers, which could not be amalgamated into one unit under the Bombay Provincial and Corporation Act, 1949. Moreover, the portion purchased by all the Navalakha brothers stands in their names, having separate portions demarcated in the revenue maps. Each portion has distinct number in revenue maps. The appellant No. 2 being owner of the said plot with distinct number had mortgaged his plot in favour of the Bank. The said mortgage was valid in the eyes of the law which has been adjudged as valid by the learned Presiding Officer DRT, Pune, vide judgment and order dated 7th October, 2003 passed in O.A. 792P/2001. Now it not open to the appellants to say that the said plot could not be mortgaged in favour of the Bank as it was inseparable and joint which formed part of one unit. 14. The respondent No. 1 Bank has further alleged that RDDBFI Act and the SARFAESI Act are different enactments and both of them are not contrary to each other. The secured creditor may avail its remedy under the RDDBFI Act by filing O.A. against the borrower and the guarantor and simultaneously it can proceed under the SARFAESI Act too to recover its dues. The Hon'ble Apex Court in the famous case Transcore v. Union of India (supra) has held that the secured credit can avail remedy available under both the acts for recovery of its dues. 15. The respondent No. 1 Bank has further alleged that the appellant No. 1 as well as its sister concern i.e., Nutan Warehousing Co. The Hon'ble Apex Court in the famous case Transcore v. Union of India (supra) has held that the secured credit can avail remedy available under both the acts for recovery of its dues. 15. The respondent No. 1 Bank has further alleged that the appellant No. 1 as well as its sister concern i.e., Nutan Warehousing Co. Pvt. Ltd. had availed credit facilities extended by the respondent No. 1 Bank. The appellant No. 1 had approached the respondent No. 1 Bank to settle the dues against both the concerned under the guidelines issued by the Reserve Bank of India (RBI). The respondent No. 1 Bank in the year 1999 has settled the claim against both the concerns i.e., appellant No. 1 and Nutan Warehousing Co. Pvt. Ltd. for Rs. 68.50 lacs as per the RBI guidelines. The appellant No. 1 again requested the Bank to lower down the settled amount which was accepted by the Bank and the amount was lowered down by the respondent Bank to Rs. 60 lacs which was communicated by the Bank to the appellant vide its letter dated 14th December, 2000. This amount was to be paid by appellant No. 1 and its sister concern i e., Nutan Warehousing Co. Pvt. Ltd. by 31st March, 2001. But, the appellant No. 1 and its sister concern did not communicate to the Bank their acceptance to the offer made by the respondent No. 1 Bank rather they started claiming eligibility of OTS under the revised guidelines of the RBI framed and issued in the year 2003 wherein the defaulters were not covered. Since the appellants were wilful defaulters, therefore, they were not covered under the RBI guidelines issued in the year 2003. The respondent Bank has denied that the appellants had ever paid Rs. 49 lacs to the Bank from time to time. The description of the mortgaged property as described in the O.A. No. 792P/2001, in the demand notice issued under Section 13(2) of the SARFAESI Act and in the possession notice issued under Section 13(4) of the SARFAESI Act are the same. Therefore, notices issued by the respondent Bank under Section 13(2) and Section 13(4) of the SARFAESI Act are in accordance with law. The S.A. filed by the applicants have got no force and is liable to be dismissed. 16. The parties filed affidavits and documentary evidence in support of their contentions. Therefore, notices issued by the respondent Bank under Section 13(2) and Section 13(4) of the SARFAESI Act are in accordance with law. The S.A. filed by the applicants have got no force and is liable to be dismissed. 16. The parties filed affidavits and documentary evidence in support of their contentions. The learned Presiding Officer after going through the pleadings of the parties framed the following 5 points for determination: (1) Whether the action taken by opponent Nos. 1 and 2 under Section 13(4) of the SARFAESI Act, 2002 violates the order passed in Appeal No. 136/2004 by the Hon'ble Chairperson, DRAT Mumbai on 14th January, 2005? (2) Whether the legality of the mortgage of the secured asset in favour of the opponent is open to challenge in view of the earlier proceeding between the parties. If yes, whether the mortgage is legal and valid? (3) Whether the demand made by the opponent from the applicants under Section 13(2) of the SARFAESI Act, 2002 invalidates the further proceedings? (4) Whether the particulars of the secured asset are correctly given in the action under Section 13(4) of the SARFAESI Act, 2002? (5) Whether the opponent was bound to consider the request for One Time Settlement made by the application before taking an action under Section 13(4) of the SARFAESI Act, 2002? 17. As regards the point No. 1 the Chairperson, DRAT, Mumbai, in Appeal No. 136/2004 filed by the appellant, vide order dated 13th January, 2004 was pleased to grant stay of the R.P. (R.P. No. 46/2004) till the next date i.e., up to 14th March, 2005 on the condition that the appellants deposit 50% of Rs. 28,59,305.10 within eight weeks from the date of the order. The next date was fixed as 14th March, 2005. The learned Presiding Officer found that the order of stay was not extended by DRAT on subsequent dates. In this way, on the date of issuance of the demand notice under Section 13(2) of the SARFAESI Act by the respondent No. 1 Bank no stay was operative, therefore, the learned Presiding Officer held that the action taken by the respondent No. 1 Bank under the SARFAESI Act cannot be struck down being contrary to the order of stay passed by the DRAT, Mumbai, in Appeal No. 136/2004. Consequently, the learned Presiding Officer answered the Point No. 1 in negative. 18. Consequently, the learned Presiding Officer answered the Point No. 1 in negative. 18. As regards the Point No. 2 the learned Presiding Officer held that in O.A. No. 792-P/2001 filed by the respondent Bank against the appellants there was no dispute regarding the said mortgage. The learned Presiding Officer while allowing the O.A. filed by the respondent No. 1 Bank declared the mortgage as valid and kept charge on the mortgaged property vide judgment and order dated 7th October, 2003. The appellants being aggrieved by the judgment and order dated 7th October, 2003 passed by the Presiding Officer in O.A. No. 792-P/2001 filed Appeal No. 136/2004 under Section 20 of the RDDBFI Act before DRAT, Mumbai, but in the said Appeal the appellants did not challenge the validity of mortgage. In this way, the appellants have already admitted the creation of valid mortgage of the said plot in favour of the respondent No. 1 Bank, therefore, now it is not open to the appellants to challenge the mortgage in the proceeding under Section 17 of the SARFAESI Act. The learned P.O., therefore, held that the said mortgage is not open for judicial scrutiny in view of the earlier pronouncement. This point was decided by the learned Presiding Officer accordingly. 19. As regards the Point No. 3 the learned Presiding Officer has held that the applicant had failed to show that the amount claimed by the respondent Bank in the demand notice issued under Section 13(2) of the SARFAESI Act was more than the amount shown in the R.C. issued consequent to the judgment and order passed by him in O.A. No. 792-P/2001. The learned Presiding Officer, therefore, held that the demand notice issued by the Bank under Section 13(2) of the SARFAESI Act is legal and valid. The learned Presiding Officer accordingly decided the point in negative. 20. As regards the Point No. 4 the learned Presiding Officer after going through different documents having description of the mortgage property held that there was no material difference in description of the mortgaged property given at different stages. The secured asset was correctly described in the said Special Civil Suit, the demand notice issued under Section 13(2) of the SARFAESI Act and the possession notice issued by the respondent No. 1 Bank under Section 13(4) of the SARFAESI Act. The learned Presiding Officer accordingly decided the point in affirmative. 21. The secured asset was correctly described in the said Special Civil Suit, the demand notice issued under Section 13(2) of the SARFAESI Act and the possession notice issued by the respondent No. 1 Bank under Section 13(4) of the SARFAESI Act. The learned Presiding Officer accordingly decided the point in affirmative. 21. As regards the Point No. 5 the learned Presiding Officer held that the respondent Bank was not bound to consider the request of the appellants for OTS a fresh before taking action under Section 13(4) of the SARFAESI Act. 22. In view of the finding above, the learned Presiding Officer did not find any force in the S.A. filed by the appellants. Consequently, he by the impugned judgment and order dated 26th August, 2011 dismissed the S.A. filed by the appellants and by the same order, ordered to continue the interim relief granted by him during S.A. till the period of Appeal is over. 23. The appellants being aggrieved by the impugned judgment and order dated 26th August, 2011 passed by the learned Presiding Officer has filed the present Appeal. 24. Heard the learned Counsel for the parties and pursued materials available on record. 25. In view of the pleading of the parties as well as submissions made by the learned Counsel for the parties, the following 5 questions crop up for consideration before this Tribunal: (i) Whether respondent No. 1 Bank could proceed under the SARFAESI Act to recover its dues during pendency of R.P. No. 46/2004 arising out of the Recovery Certificate issued by the learned Presiding Officer DRT on the basis of the judgment and order dated 7th October, 2003 passed by him in O.A. No. 792P/2001? (ii) Whether the auction sale of the mortgaged property was conducted by respondent No. 2, when the order of stay passed by the DRAT, Mumbai in Appeal No. 136/2004 was operative. If so, its effect? (iii) Whether the mortgaged property was under attachment in R.P. No. 46/2004. If so, whether the same could be sold by respondent No. 1 Bank under the SARFAESI Act through its Authorized Officer? If so, its effect? (iii) Whether the mortgaged property was under attachment in R.P. No. 46/2004. If so, whether the same could be sold by respondent No. 1 Bank under the SARFAESI Act through its Authorized Officer? (iv) Whether the notice issued by respondent No. 1 Bank under Section 13(2) and under Section 13(4) of the SARFAESI Act and possession-cum-auction sale notice issued on 13th December, 2008 are alleged on the ground that the description of the property to be sold mentioned therein, does not match with each other? (v) Whether the mortgaged property was a joint property and the same could not be mortgaged by the appellant No. 2 in favour of the respondent Bank to secure amount of credit facilities availed by appellant No. 1? 26. Now the above questions are being considered one by one. Question No. 1. 27. The learned Counsel for the appellant contended that the respondent Bank had filed Special Civil Suit No. 952/1995 in the Court of Civil Judge (Senior Division), Pune, for recovery of Rs. 28,59,305/- due as on 25th June, 2005 along with future interest @ 17.5% per annum. The above Suit pending in the Court of Civil Judge (S.D.) stood transferred to DRT, Pune, on account of the coming into force of the RDDBFI Act. The original Suit was registered as O.A. No. 792P/2001 in DRT, Pune. The learned Presiding Officer vide order dated 7th October, 2003 allowed the O.A. for recovery of Rs. 28,59,505.10 with future interest @ 17.5% p.a. till full and the final realization of the decretal amount. The defendants feelings aggrieved by the judgment and order passed by the learned Presiding Officer filed appeal No. 136/2004 before the DRAT, Mumbai. During the pending appeal on the basis of the Recovery Certificate issued by the learned Presiding Officer the Recovery Officer, DRT, Pune initiated recovery proceeding i.e., R.P. No. 46/2004 for recovery of the dues shown in the Recovery Certificate. The appellants filed Misc. Application in Appeal No. 136/2004 before the DRAT to waive the amount which was required to be deposited by them under Section 21 of the RDDBFI Act for entertaining their Appeal. They also prayed for staying the recovery proceeding. The DRAT, Mumbai vide order 14th January, 2005 disposed of the waiver application filed by the appellants, directing them to deposit 50% of the amount shown in the Recovery Certificate i.e. Rs. 14.29.903/-. They also prayed for staying the recovery proceeding. The DRAT, Mumbai vide order 14th January, 2005 disposed of the waiver application filed by the appellants, directing them to deposit 50% of the amount shown in the Recovery Certificate i.e. Rs. 14.29.903/-. The DRAT was further pleased to pass an interim order staying the recovery proceeding. On the basis of the order of stay passed by DRAT, the Recovery Officer stayed the recovery proceeding which holds good as on date. This fact has been admitted by the respondent Bank in its letter dated 2nd March, 2009. The Bank in paras No. 2 and 4 of the aforesaid letter has specifically admitted that the stay granted in Appeal No. 136/20C4 relates to stay of the recovery proceeding. The stay order does not bar the Bank to take measures under SARFAESI Act to recover its dues. In this way, it is admitted by the Bank that the order by the DRT staying the recovery proceeding was operative on the date of the auction sale. Therefore, respondent Bank could not proceed under the SARFAESI Act to recover its dues from the same property which is subject matter of Recovery Proceeding as the Recovery Proceeding had already been ordered to be stayed by the DRAT in Appeal. 28. The learned Counsel argued that the learned Presiding Officer relying on a judgment passed by the Hon'ble Apex Court in the famous case Transcore v. Union of India, held that the proceeding under the SARFAESI Act can go parallel with the proceeding under the RDDBFI Act. The learned Counsel argued that this observation of the learned DRT, Pune, is against the law laid down by the Hon'ble Apex Court. The question before the Hon'ble Court in Transcore's case was that whether the O.A., filed by the Bank was required to be withdrawn for proceeding under the SARFAESI Act. The Hon'ble Court held that it is not necessary for the secured creditor to withdraw the O.A. for proceeding under the SARFAESI Act. The Hon'ble (sic) held that both the Acts are different Acts. The proceeding under both the Acts, therefore, can go parallel. But in this case, no such question was there before the learned Presiding Officer as to whether the O.A. field by the Bank had to be withdrawn before the proceeding under the SARFAESI Act. The Hon'ble (sic) held that both the Acts are different Acts. The proceeding under both the Acts, therefore, can go parallel. But in this case, no such question was there before the learned Presiding Officer as to whether the O.A. field by the Bank had to be withdrawn before the proceeding under the SARFAESI Act. In fact, the O.A. had already been allowed by the learned Presiding Officer. The learned Counsel argued that in view of the law laid down by the Hon'ble Apex Court in Transcore's case, the proceeding under the RDDBFI Act can go parallel. But in the present case the measures under the SARFAESI Act cannot be taken by the secured creditor to frustrate the order passed by the appellate Tribunal in the Appeal filed by the appellant in the same matters an act which cannot be directly done by the secured creditor, cannot be done by it indirectly. The respondent-Bank taking shelter of the SARFAESI Act could not proceed under the Act to frustrate the order of stay of the recovery proceeding passed by the DRAT, Mumbai. Therefore, the auction sale of the mortgaged plot conducted by respondent No. 2 in violation of the order passed by DRAT is void ab-initio and is liable to be quashed. The learned Counsel in support of his arguments has placed reliance on the following cases: (a) Transcore v. Union of India (supra); (b) 102921, decided by the Hon'ble Allahabad High Court. 29. The learned Counsel for the respondent argued that in the case of Transcore v. Union of India (supra), the Hon'ble Apex Court inter alia has considered the scope, an application of RDDBFI Act as well as SARFAESI Act. The Hon'ble Court has held that the RDDBFI Act as well as SARFAESI Act provide for recovery of debt by non-adjudicatory process. These two enactments provide for cumulative remedies to the secured creditor. There is no inconsistency between the remedies available under the two Acts. The secured creditor may proceed to recover its dues under both the Acts. The proceedings under the RDDBFI Act can go parallel. The pendency of recovery proceeding initiated at the instance of the Bank is no bar to the Bank for proceeding under the SARFAESI Act. 30. Considered the submission of the learned Counsel for the parties and gone through the judgments cited by the learned Counsel for the appellant. 31. The proceedings under the RDDBFI Act can go parallel. The pendency of recovery proceeding initiated at the instance of the Bank is no bar to the Bank for proceeding under the SARFAESI Act. 30. Considered the submission of the learned Counsel for the parties and gone through the judgments cited by the learned Counsel for the appellant. 31. The Hon'ble Apex Court in Transcore's case has considered the issue, as to whether the secured creditor can proceed to recover its dues under the SARFAESI Act, when the O.A. filed by it is already pending before the DRT. The Hon'ble Court held that the RDDBFI Act and the SARFAESI Act, provides for recovery of dues by the Bank and Financial Institutions. Both the Acts are not inconsistent. The secured creditor may proceed under both the Acts to recover its dues. The relevant observation of the Hon'ble Court finds place in Para No. 14 of the judgment which is being extracted below: 14. The object of the RDDBFI Act as well as the SARFAESI Act is recovery of debt by non-adjudicatory process. These two enactments provide for cumulative remedies to the secured creditors. By removing all fetters on the rights of the secured creditor, he is given a right to choose one or more of the cumulative remedies. The object behind Section 13 of the SARFAESI Act and Section 17 read with Section 19 of the RDDBFI Act is the same, namely, recovery of debt. Conceptually, there is no inherent or implied inconsistency between the two remedies. 32. In the case of ACE Media Advertisement Pvt. Ltd. v. Bank of Baroda (supra), decided by the Division Bench of the Hon'ble Allahabad High Court, it has been held by the Hon'ble Court that once the dues of the Bank is crystallized by DRT through adjudicatory process, the secured creditor cannot claim over and above the amount of claim determined by DRT by adjudicatory process. Therefore, the Bank under SARFAESI Act can claim only that much of amount which has been determined by DRT under RDDBFI Act. The relevant observation of the Hon'ble Court finds place in Para No. 10 of the judgment which is being extracted below: Determination of a claim under a non-adjudicatory process, cannot override the determined amount of adjudicatory process i.e. decree/order of DRT. The relevant observation of the Hon'ble Court finds place in Para No. 10 of the judgment which is being extracted below: Determination of a claim under a non-adjudicatory process, cannot override the determined amount of adjudicatory process i.e. decree/order of DRT. Therefore, the recovery will be available under SARFAESI Act only with regard to determined amount by DRT subject to decision, if any, by the higher Courts. Reason is that a decree or order of a juridical adjudicatory process will always have prevailing effect over and above that of the non-adjudicatory process and secondly, both under the SARFAESI Act and RDDBFI Act, the forum for adjudication is the same, either for original proceedings or for appeal. In this particular case, when the DRAT as an appellant forum has already tested the verdict of DRT and dismissed the further appeal, determination or test by the DRT as an appellate forum under the SARFAESI Act, for the self-same claim is futile in nature. Therefore, process under SARFAESI Act, during the pendency of proceeding under the RDDBFI Act, cannot be a bar, but if the decree/order is passed by DRT, the claim under the SARFAESI Act will be confined to that extent.. 33. In view of the law laid down by the Hon'ble Allahabad High Court in the above cited cases, it is well settled that the secured creditor/lender Bank can proceed under RDDBFI Act as well as SARFAESI Act. Both the proceedings can go parallel. There is no inconsistency between the two Acts. Both the Acts are meant for recovery of the dues of the Bank and Financial Institutions which is public money. I therefore, hold that the respondent-Bank can proceed under the SARFAESI Act to recover its dues during pendency of R.P. No. 46/2004, arising out of the Recovery Certificate issued by the learned DRT on the basis of the judgment and order passed by him in OA No. 792P/2001. The question No. 1 is therefore, decided in the affirmative. Question No. 2. 34. The learned Counsel for the appellant contended that the OA No. 792P/2001 filed by the respondent-Bank which had arisen out of Special Civil Suit No. 952/1995 received by transfer from the Civil Judge (Senior Division), Pune, was allowed by the learned DRT vide judgment and order dated 7th October, 2003. Question No. 2. 34. The learned Counsel for the appellant contended that the OA No. 792P/2001 filed by the respondent-Bank which had arisen out of Special Civil Suit No. 952/1995 received by transfer from the Civil Judge (Senior Division), Pune, was allowed by the learned DRT vide judgment and order dated 7th October, 2003. The defendants being aggrieved by the above said judgment and order passed by the learned DRT preferred Appeal No. 136/2004 under Section 20 of the RDDBFI Act before the DRAT, Mumbai. On the basis of the Recovery Certificate issued by the learned Presiding Officer in the aforesaid O.A. No. 792P/2001, the Recovery Officer, DRAT, Pune, had initiated recovery proceeding (R.P. No. 46/2004) to recover the amount shown in the Recovery Certificate. The appellants in Appeal No. 136/2004 filed Misc. Application for waiver of the amount required to be deposited by them under Section 21 of the RDDBFI Act. They had also prayed for staying the recovery proceeding. The DRAT disposed of the waiver application moved by the appellant, vide order dated 14th January, 2005 directing the appellant to deposit 50% of the amount determined by the learned DRT, i.e., an amount of Rs. 14,29,903/-. The DRT was further pleased to stay the recovery proceeding of R.P. No. 46/2004 by the same order. The order of stay was in operation on the date of sale and is still in operation as on date. The respondent-Bank vide its letter dated 2nd March, 2009 sent to Navalakha Agencies has admitted the factum of the stay of the Recovery Proceeding granted by the DRAT The Bank in para Nos. 2 and 4 of the aforesaid letter has specifically admitted that DRAT, has granted the stay in Appeal No. 136/2004, but it had contended that DRAT had not passed any order to the effect that the Bank cannot take measures under the SARFAESI Act. Therefore, the Bank can proceed under the SARFAESI Act to recover its dues. In this way, this fact is undisputed that on the date of the auction sale, the order of stay was operative. The learned Counsel argued that if DRAT had stayed the Recovery Proceeding and order of stay was operative, the respondent-Bank therefore, could not proceed under the SARFAESI Act to recover its dues from the same property act which was the subject matter of the Recovery Proceeding. The learned Counsel argued that if DRAT had stayed the Recovery Proceeding and order of stay was operative, the respondent-Bank therefore, could not proceed under the SARFAESI Act to recover its dues from the same property act which was the subject matter of the Recovery Proceeding. The Bank proceeding under the SARFAESI Act, could not frustrate the order of stay passed by DRAT. An Act which the Bank cannot do directly, cannot do the same act indirectly. The learned Counsel argued that the settled legal principle is that when there is an interim order of the Court maintaining the status quo with regard to certain property, that property cannot be dealt with in the manner by the parties till the order of status quo remains operative. In this case, the Authorized Officer of the respondent-Bank has sold the mortgaged property by way of auction sale, when the stay order was operative. Therefore, the auction sale conducted by the Authorized Officer will be illegal and void ab initio in the eyes of law. Consequently, the auction sale of the mortgaged property conducted by the Recovery Officer is liable to be cancelled. The learned Counsel in support of his arguments has placed reliance on 896161 , decided by the Hon'ble Patna High Court. 35. The learned Counsel for the respondent disputed the factual submission advanced by the learned Counsel for the appellant. The learned Counsel argued that the O.A. No. 792P/2001 filed by the respondent-Bank was allowed for a sum of Rs. 28,59,305/- along with future interest @ 17.5% till full and final realization of the decretal amount. The defendants being aggrieved by the said judgment and order passed by the learned Presiding Officer, DRT had filed Appeal No. 136/2004 under Section 20 of the RDDBFI Act before DRT, Mumbai. They had moved M.A. for waiver of the amount required to be deposited by them under Section 21 of the RDDBFI Act. They had also prayed to stay recovery proceeding by way of interim relief. The DRAT vide order dated 14th January, 2005 had disposed of the waiver application filed by the appellants, directing them to deposit 50% of the amount determined by the learned Presiding Officer, DRT. The DRAT was further pleased to stay the recovery proceeding till the next date i.e. 14th March, 2005. The DRAT had granted stay for a limited period which was operative upto 14th March, 2005. The DRAT was further pleased to stay the recovery proceeding till the next date i.e. 14th March, 2005. The DRAT had granted stay for a limited period which was operative upto 14th March, 2005. The stay order granted by DRAT was never extended thereafter. The respondent No. 2, the Authorized Officer, sold the mortgaged property vide auction sale dated 24th February, 2011. On that date, the stay order was not operative. The learned Presiding Officer in the impugned judgment and order has considered this point. He has observed that the order of stay was granted by DRAT for a limited period upto 14th March, 2005, which was never extended thereafter. The Authorized Officer of the Bank has sold the mortgaged property, when the stay order was not operative. Therefore, the auction sale cannot be held to be illegal, on the ground that it was conducted in violation of the order of stay granted by DRAT. The auction sale of the mortgaged property conducted by respondent No. 2, the Authorized Officer, therefore, cannot be said to be illegal and void. 36. Considered the submission of the learned Counsel for the parties. There is no dispute on the settled legal principle that when there is stay with regard to any property, the same cannot be dealt with in any manner during operation of the stay. In the instant case it has to be seen as to whether on the date of the auction sale, the stay granted by DRAT was operative. 37. From a perusal of the impugned judgment, it appears that the learned Presiding Officer has considered this point in para No. 9 of the impugned judgment. He has dealt with the issue quoting the order passed by the DRAT in Appeal No. 136/2004. The order passed by the DRAT has been quoted as follows: The appellants to deposit with the Registrar of this appellate Tribunal, 50% of Rs. 28,59,305.10 within eight weeks from today. Needless to say, if the amount is not deposited within the prescribed period. Appeal to stand rejected with any further recourse. Stay to the recovery proceeding, if commenced till next date. Misc. Application Nos. 622/2003 and 623/2003 are disposed of, accordingly. Stand over for compliance on 14th March, 2005. 38. 28,59,305.10 within eight weeks from today. Needless to say, if the amount is not deposited within the prescribed period. Appeal to stand rejected with any further recourse. Stay to the recovery proceeding, if commenced till next date. Misc. Application Nos. 622/2003 and 623/2003 are disposed of, accordingly. Stand over for compliance on 14th March, 2005. 38. The learned Presiding Officer on the basis of the aforesaid order has held that the order of stay was granted by DRAT for a limited period upto 14th March, 2005, which was never extended thereafter. The learned Presiding Officer has further observed that the learned Counsel for the applicants fairly admits the above situation i.e. order passed by DRAT was not extended after 14th March, 2005. The learned Presiding Officer held that the auction sale conducted by the Authorised Officer, under the SARFAESI Act cannot be held to be illegal, as it was conducted during the period when the stay was not operative. The finding of the learned Presiding Officer is based on the documentary evidence on record as well as on the admission of the learned Counsel for the applicants. Now it is not open to the learned Counsel for the appellant to argue at the appellate stage that the order of stay passed by the DRAT was operative, when the auction sale of the mortgaged property was conducted by the Authorized Officer of the Bank under the SARFAESI Act. 39. The learned Counsel tried to convince the appellate Tribunal that the stay was operative on the date of auction sale as the same was admitted by the respondent-Bank vide its letter dated 2nd March, 2009 sent to the appellants. But I do not agree with the learned Counsel. The order of stay was operative or not, is a question of the fact which can be decided on the basis of the order passed by DRAT, not on the basis of letter written by the of respondent-Bank. This fact cannot be taken as proved on the admission of respondent-Bank, when there is no stay order. In this case, the appellant did not file copy of the Roznama before the learned Presiding Officer showing that the order of stay was continued after 14th March, 2005 and was in operation on the date of the auction sale. This fact cannot be taken as proved on the admission of respondent-Bank, when there is no stay order. In this case, the appellant did not file copy of the Roznama before the learned Presiding Officer showing that the order of stay was continued after 14th March, 2005 and was in operation on the date of the auction sale. In view of these facts, the submission of the learned Counsel for the appellant that the order of stay was operative on the date of the auction sale, appears to be factually incorrect. I do not find any perversity in the finding of the learned Presiding Officer that the auction sale of the mortgaged property was conducted by the Authorized Officer under the SARFAESI Act, when the order of stay was not operative. I, therefore, approve the finding of the learned Presiding Officer and hold that the auction sale of the mortgaged property was conducted by the Authorized Officer of the Bank when the order of stay passed by the DRAT was not operative and such auction sale was not illegal on the ground that auction sale was conducted by the Authorized Officer of the Bank in violation of the order of stay passed by DRAT. The question No. 2 is decided in negative. Question No. 3. 40. The learned Counsel for the appellant contended that O.A. No. 792P/2011 was allowed by the learned Presiding Officer vide judgment and order dated 7th October, 2003 for recovery of Rs. 28,59,305.10 with future interest @ 17.50% p.a. The learned Presiding Officer accordingly ordered for issuance of Recovery Certificate. On the basis of R.C. issued by the learned P.O., the Recovery Officer, DRT, Pune, initiated Recovery Proceeding No. 46/2004 to recover the amount shown in the R.C. The R.O. on 9th July, 2004 issued warrant of attachment and on 13th September, 2004 attached the said plot in the aforesaid R.P. the prepared panchanama of attachment. After the attachment of the said plot the legal consequence will be that the said plot became the custodia legis, property which could not be sold without seeking prior permission of the Court i.e. the learned Presiding Officer, DRT, Pune. The respondent-Bank could not straightaway sell the said plot through auction sale under the SARFAESI Act. The auction sale of the mortgaged property conducted by the respondent No. 2 is illegal and void ab initio in the eyes of law. The respondent-Bank could not straightaway sell the said plot through auction sale under the SARFAESI Act. The auction sale of the mortgaged property conducted by the respondent No. 2 is illegal and void ab initio in the eyes of law. The learned Counsel in support of his argument has placed reliance on following cases: (a) 696066, decided by the Hon'ble High Court of Gujarat; (b) 257322, decided by the Hon'ble Apex Court; (c) 711357, decided by the Hon'ble High Court of Gujarat. 41. On the other hand, the learned Counsel for the respondent-Bank argued that the said plot i.e. the mortgaged property was attached by the R.O., DRT, Pune, in the R.P. to realize the outstanding dues shown in the R.C. to be paid to the respondent No. 1 Bank. The R.P. was initiated at the instance of the respondent-Bank. The respondent Bank during pending R.P. proceeded under the SARFAESI Act to recover its dues from the said plot i.e. the secured asset. The Authorized Officer of the respondent-Bank sold the said plot through auction sale. In such circumstances the sale conducted by the authorized officer of the respondent-Bank will not be void. The learned Counsel argued that when a property is under the attachment the same cannot be sold by private sale but no such bar on sale of such property will operate against the secured creditor at whose instance the R.P. is pending. 42. The learned Counsel also argued that where a property is already under attachment of a decree and is in possession of the Receiver, the same can be sold in execution of subsequent decree or the same can be sold under the statutory provisions. There is no complete bar for sale of such property. The bar on the sale of attached property operates only to private alienation and not under the authority of a Court or under any statutory provision. The sale conducted by the Authorized Officer of the respondent-Bank will not be, therefore, illegal and void ab initio. The learned Counsel in support of her argument has placed reliance on following cases: (a) 941441, decided by the Hon'ble Andhra Pradesh High Court; (b) 547933, decided by the Hon'ble Kerala High Court; (c) 359214, decided by the Hon'ble Punjab High Court; (d) 935256, decided by the Hon'ble Andhra Pradesh High Court. 43. The learned Counsel in support of her argument has placed reliance on following cases: (a) 941441, decided by the Hon'ble Andhra Pradesh High Court; (b) 547933, decided by the Hon'ble Kerala High Court; (c) 359214, decided by the Hon'ble Punjab High Court; (d) 935256, decided by the Hon'ble Andhra Pradesh High Court. 43. In case Asset Reconstruction Company (India) Limited v. M.H. Mills and Industries Ltd., (supra) the Hon'ble Gujarat High Court had held that under the SARFAESI Act the secured creditor can take over the possession of a secured asset from the borrower or any person who is found in occupation of such asset. But any property, movable and immovable, once taken care of by the Court through a Receiver or seized by a Court of law the secured creditor under Section 13(4) read with Section 14 of the SARFAESI Act cannot take possession of such property. The relevant observation of the Hon'ble High Court finds place in Para 66 of the judgment which is being extracted below: 66. Under the SARFAESI Act, a secured creditor can take possession of a secured asset from the borrower or any person who has occupied such asset from the borrower. But any property, movable or immovable, once taken care of by Court through a receiver or is seized by a Court of Law, the secured creditor under Section 13(4) read with Section 14 cannot take possession of such property. This is also known to petitioner-ARCIL and, therefore, instead of taking possession of a secured asset under Section 13(4), they have challenged the order of seizure passed by the Labour Court under Section 17-A of the Payment of Wages Act. 44. In case Kanhaiyalal v. D.R. Banaji (supra) the Hon'ble Apex Court has held that when a property is custodia legis and such property is sold, the sale will be voidable and not void ab initio. The relevant observation of the Hon'ble Court find place in Para-7 of the judgment which is extracted as below: ...In our opinion, it is enough to point out that the High Court took the view that sale was voidable and could be declared illegal in a proper proceeding or by Suit. We shall assume for the purpose of this case that such safe is voidable and not void ab initio. 45. We shall assume for the purpose of this case that such safe is voidable and not void ab initio. 45. In case of Maganlal Bechardas v. Shah Kesarima Dalichand (supra) the facts were that the property in question was under attachment before the judgment by the order passed by the Civil Court under Order 38 Rule 5 of the Code of Civil Procedure. The Civil Suit was decreed and the order of attachment was continued even then the Mamlatdar Broach sold the property in question along with other properties. In view of that fact the Hon'ble Gujarat High Court held that the property was custodia. legis when the Mamlatdar, Broach, sold the properties. The purchaser of the property in auction sale held by the Court moved for cancellation of the sale conducted by the Mamlatdar which was allowed by the Civil Judge. The auction purchaser at the auction sale conducted by the Mamlatdar, filed Appeal before the District Judge challenging the order passed by the Civil Judge, The Appeal was dismissed. The appellant thereafter challenged the order passed by the District Judge before the Hon'ble High Court of Gujarat. The Hon'ble High Court held that when the property was already custodia legis, the revenue authorities were not competent to deal with the property which was under attachment under the order of the Court. In other words, the Mamlatdar had no authority and power to sell the property at public auction. The Hon'ble High Court dismissed the Appeal filed by the petitioner and approved the order of the District Judge. 46. On the other hand, in case of Parachuri Veerayya v. Yalavarti Veeraraghavayya (supra) the Hon'ble Andhra Pradesh High Court has held that Section 64 of the CPC does not make a absolute prohibition of the sale of property on which the attachment is subsisting. A private sale of the property subject to attachment can be avoided by the attaching creditor or his representative-in-interest. This does not preclude the same property from being brought to sale in execution of another decree. 47. The same view has been taken by the Hon'ble Andhra Pradesh High Court in case of Mutha Subbarao v. The Official Receiver, West Godawari at Eluru (supra) in which the Hon'ble Court has held as follows: It is well settled that an attachment, whether before or after judgment, does not create any charge on the attached property. 47. The same view has been taken by the Hon'ble Andhra Pradesh High Court in case of Mutha Subbarao v. The Official Receiver, West Godawari at Eluru (supra) in which the Hon'ble Court has held as follows: It is well settled that an attachment, whether before or after judgment, does not create any charge on the attached property. An attaching creditor, is not a secured creditor. Hence, if an order of adjudication is made after attachment but before sale, the property vests in Official Assignee or Receiver for the benefit of the general body of creditors and the attaching creditor is not entitled to obtain satisfaction of his decree by sale of the attached property. The order of adjudication diverts the right of the attaching creditor and remits him to the position of any ordinary creditor. 48. In case V.S. Thiru Venkita Reddiar v. Noordeen (supra) the Hon'ble Kerala High Court has held that when a property is under attachment either before or after the judgment such attachment does not bar the Court sale in execution of another decree. The relevant observation of the Hon'ble Court finds place in Para 3 of the judgment which reads as under: 3....Such being the effect of an attachment, whether before or after decree, it does not bar a Court sale in execution of another decree and with the Court sale the interest of the judgment-debtor passes to the auction purchaser and there is nothing left to be sold later at the instance of another decree-holder who may have attached the property earlier. The purpose of the attachment is solely for the purpose of protecting the attaching creditor's right to bring to sale in execution the right, title and interest in the attached property of the judgment-debtor and there is no reason for holding that it continued to affect the attached property in any way when the attached property no longer continues to be the property of the judgment-debtor. The auction purchaser takes the property free from attachment. The consequence no doubt to an earlier attaching creditor is very serious, but his rights are sufficiently safeguarded in such a situation by entitling him a rateable distribution of the proceeds of the sale. This is the only way left to a money-decree-holder when other like decree holders proceed against the same property in execution. The consequence no doubt to an earlier attaching creditor is very serious, but his rights are sufficiently safeguarded in such a situation by entitling him a rateable distribution of the proceeds of the sale. This is the only way left to a money-decree-holder when other like decree holders proceed against the same property in execution. If this were not so complications will arise between an earlier attaching creditor and a subsequent attaching creditor. If the sale was under a private alienation with the earlier sale there is nothing left with the transferor to transfer subsequently to another. In the same manner the prior sale in pursuance of an attachment will prevail over a subsequent sale even if the latter sale was in pursuance of an earlier attachment. In other words with the Court sale all attachment subsisting on the property will fall to the ground.....Hence it must be taken as fairly settled that when a property is sold in execution of a money decree it cannot be sold again at the instance of the decree-holder who has attached it before it was actually sold. The consequence is on the happening of a judicial sale all previous attachment effected upon the property sold fall to the ground.... 49. In case of Asset Reconstruction Co. (India) Ltd. v. M.H. Mills and Industries Ltd. (supra), decided by the Hon'ble Gujarat High Court, cited by the learned Counsel for the appellants the property was under the seizure by order, of the Labour Court under Section 17-A of the Payment of Wages Act, 1936. The Hon'ble Court, therefore, held that the secured creditor under Section 13(4) of the SARFAESI Act can take possession of the secured asset from the borrower or any person who had occupied such asset from the borrower. But any property, movable or immovable, once taken care of by the Court through a Receiver or is seized by a Court of law, the secured creditor under Section 13(4) read with Section 14 of the SARFAESI Act cannot take possession of such property. In this case the situation is otherwise. But any property, movable or immovable, once taken care of by the Court through a Receiver or is seized by a Court of law, the secured creditor under Section 13(4) read with Section 14 of the SARFAESI Act cannot take possession of such property. In this case the situation is otherwise. The Recovery Proceeding i.e. R.P. No. 46/2004 was pending at the instance of the secured creditor who was proceeding to recover its dues determined by the DRT through the R.P. The same secured creditor is proceeding under the SARFAESI Act to recover the same dues, therefore, the facts of the present case being different, will not attract the application of law laid down by the Hon'ble Court in the above cited case. 50. With regard to the law laid down by the Hon'ble Court of Gujarat in case of Maganlal Bechardas v. Shah Kesarima Dalichand (supra) the property which was under attachment of Court's order under Order 38 Rule 5 of CPC was sold by the Mamlatdar along with other properties. In view of fact of case the Hon'ble Court held that the property was custodia legis, therefore, the same could not be sold by Mamlatdar. The facts of that case were also different from the facts of present case, therefore, the law laid down by Hon'ble Court will not be applicable to the present case. 51. In case of V.S. Thiru Venkita Reddiar v. Noordeen, (supra) the Hon'ble Kerala High Court has held that when the property is under attachment then Section 64 of the Code of Civil Procedure bars private alienation of such property and not sale by the Court. In this case the property to be sold was under the attachment of Recovery proceeding. The Recovery Officer was proceeding to recover the dues determined by the learned Presiding Officer, DRT, Pune. The respondent-Bank in addition to recovery proceeding has taken measures under the SARFAESI Act to sell the same plot to recover its same dues. The respondent-Bank, therefore, could legally proceed under the SARFAESI Act and the Authorized Officer of the Bank could sell the said plot under the SARFAESI Act which cannot be said to be illegal or void ab initio in the eyes of law. This point is, therefore, decided in affirmative. Question No. 4. 52. The respondent-Bank, therefore, could legally proceed under the SARFAESI Act and the Authorized Officer of the Bank could sell the said plot under the SARFAESI Act which cannot be said to be illegal or void ab initio in the eyes of law. This point is, therefore, decided in affirmative. Question No. 4. 52. The learned Counsel for the appellants argued that the mortgaged property as described in the Original Application, Notice issued by the secured creditor under Section 13(2) of the SARFAESI Act and under Section 13(4) of the SARFAESI Act and the possession-cum-sale notice does not match with each other, therefore, the action of the respondent No. 1 Bank is illegal and liable to be quashed. 53. From a perusal of the impugned judgment and order it appears that the learned Presiding Officer has dealt with this issue in detail which finds place in Para 18 of the judgment which is being extracted below: 18. On the backdrop of the said submission, it is necessary to reproduce the description of the property given in the Sale Deed dated 23rd February, 1973, Plaint, Notice under Section 13(2), Possession Notice and Notice of Possession-cum-Sale. The Sale Deed shows that one Shri Sayaji Purshottam Shirole with the consent of Shri Purshottam Shirole and others submitted Plot No. 4 from Final Plot No. 493 B, CTS No. 1118 total admeasuring 64.85 R out of which 900 sq. mtrs. was acquired for the road. The Sale Deed mentions that the remaining portion of the land was sub-divided into 5 plots out of which Plot No. 4 admeasuring around 1060 sq. mtrs. bounded on East by Final Plot No. 493 A, on South by Plot No. 493B, on West by Plot No. 494 and on North by Plot No. 3 and Plot No. 493B. Thus, the particulars of the plot along with Final Plot number, CTS was mentioned in the Sale Deed. The description in the Plaint read as under: All that piece and parcel of land at S. No. 493 B, Plot No. 4, Hissa No. 4 (New 1118) Shivaji Nagar, Bhamburda, within the limits of Taluka and Registration District Pune admeasuring about 60,000 sq. ft. out of which one-sixth share of 10,000 sq. ft. The description in the Plaint read as under: All that piece and parcel of land at S. No. 493 B, Plot No. 4, Hissa No. 4 (New 1118) Shivaji Nagar, Bhamburda, within the limits of Taluka and Registration District Pune admeasuring about 60,000 sq. ft. out of which one-sixth share of 10,000 sq. ft. The description in the Notice under Section 13(2) of the SARFAESI Act, 2002 reads as under-- Plot No. 493 B, Hissa No. 4, Sub Plot No. 4 admeasuring about 1060 sq. mtrs. out of CTS No. 1118, Lakaki Road, Bhamburda (Shivaji Nagar), Tal Haveli, Distt. Pune. Description in Possession Notice reads as under- All that part and parcel of the property consisting Plot No. 493B, Hissa No. 5, Sub Plot No. 4 admeasuring about 1060 sq. ft. out of CTS No. 1118, Lakaki Road, Bhamburda (Shivaji Nagar), Tal. Haveli. Distt. Pune belonging to G.L. Navalakha, which is bounded as follows: On or towards the East: By final plot No. 493A On or towards South : By Div No. 5-A & BFP No. 493B On or towards North : By Div. No. 3 of FP No. 493B On or towards East: By final plot No. 494. Notice of Possession-cum-Sale reads as under: Plot No. 493 B, Hissa No. 4 Sub Plot No. 4 admeasuring 1060 sq. mtrs. out of C.T.S. No. 1118, Lakaki Road, Bhamburda (Shivaji Nagar), Tal. Haveli, Distt. Pune. Bare look at the description would show that sometimes the areas is mentioned in sq. ft and sometimes in sq. mtrs. but that is not likely to mislead anybody as Plot number, Hissa number, Sub-plot number and location is specifically mentioned. Giving description by boundaries was simply a surplusage which would not vitiate the sale or Sale Notice. The mistake of scale would not go to the root of the matter as to invalidate entire action taken under Section 13(2) of the SARFAESI Act, 2002. 54. From a perusal of above finding of the learned Presiding Officer it appears that the learned Presiding Officer has observed that the Plot No., Hissa No., Subplot No. and location of the mortgaged plot has specifically been mentioned at every stage and given description of the boundaries in notice was merely a surplusage which would not vitiate the sale or the sale notice. The finding of the Learned Presiding Officer is based on careful examination of the description of the property mentioned at different stages as referred above. There is no material difference in the description of the mortgaged property except the area of mortgage plot which somewhere is described as 1060 sq. mtrs. and somewhere as 10,000 sq. ft. I do not find any perversity in the finding of the learned Presiding Officer. I, therefore, hold that the notice issued by the respondent-Bank under Section 13(2) and Section 13(4) and possession-cum-sale notice are not illegal on the ground that description of the property to be sold does not match with each other. This point is decided in negative. Question No. V: 55. The learned Counsel for the appellants contended that six Navalakha brothers had purchased approximately 5,616 sq. mtrs. i.e. 60,450 sq. ft. of land forming part of the C.T.S. No. 1118/B situated in Bhamburda, Shivaji Nagar, Pune, by separate sale deeds dated 23rd February, 1973. They got their purchased portions through sale deeds amalgamated into one unit in accordance with provisions under the Bombay Provincial and Corporation Act, 1949 read with Developer Control Orders. In this way, the total land purchased by the six brothers of Navalakha family became one unit and joint property of all the six brothers, therefore, each of them had interest in every inch of the land. None of the brothers could transfer or mortgage any portion of the said land without consent of all the brothers/co-owners. The appellant No. 2 is said to have created mortgaged of the said plot but he has created the alleged mortgage without the consent of other co-owners, therefore, the said mortgage is illegal and void in the eye of law. 56. But, I do not agree with the learned Counsel for the appellants. The learned Presiding Officer, DRT, in O.A. No. 792P/2011 has held that the mortgage is valid. He has ordered that there will be a charge on the mortgaged property. The said finding has not been reversed. Now it is not open to the appellant to contend that it was not a valid mortgage. The appellants in their S.A. have specifically alleged that all six Navalakha brothers have purchased approximately 5, 6, 16 sq. mtrs. i.e. 60,450 sq. ft. The said finding has not been reversed. Now it is not open to the appellant to contend that it was not a valid mortgage. The appellants in their S.A. have specifically alleged that all six Navalakha brothers have purchased approximately 5, 6, 16 sq. mtrs. i.e. 60,450 sq. ft. of land forming part of the said C.T.S. No. 1118/B situated in Bhamburda, Shivaji Nagar, Pune, by separate sale deeds dated 23rd February, 1973. The respondent-Bank in para No. 10 of its written statement has specifically alleged that Plot No. 1118-B has demarked plots. Moreover, the appellant No. 2 himself has mortgaged his plot in favour of the respondent-Bank and now it is not open to him to challenge the said mortgage on the ground that it was part of joint plot. I, therefore, hold that the mortgage of the said plot created by the appellant No. 2 in favour of the respondent-Bank is not invalid. This question is accordingly decided in negative. 57. In addition to the submissions made above by the learned Counsel for the parties, the learned Counsel for the appellant made some more submissions. 58. The learned Counsel for the appellant contended that the amount claimed by the respondent-Bank in the notice issued under Section 13(2) of the SARFAESI Act is not 'debt' as the amount of debt has been converted into Recovery Certificate after the O.A. filed by the respondent-Bank was allowed by the learned Presiding Officer. The secured creditor can proceed under the SARFAESI Act only to recover it debt since there is no debt, therefore, the respondent-Bank cannot proceed under the SARFAESI Act to recover its debt. 59. The argument of the learned Counsel appears to be misconceived. In case of ACE Media Pvt. Ltd. v. Bank of Baroda (supra), it has been held by the Hon'ble Division Bench of Allahabad High Court that after determination of the outstanding dues by the DRT under the RDDBFI Act the Bank cannot proceed under the SARFAESI Act to recover more amount than determined by the DRT in the O.A. The claim of the bank to recover its dues under the SARFAESI Act will remain confined to the outstanding dues as determined by the DRT. The submission of the learned Counsel for the appellant has, therefore, got no force. 60. The submission of the learned Counsel for the appellant has, therefore, got no force. 60. The learned Counsel further argued that in this case the Bank has issued composite notice of possession-cum-sale which is against the express provision contained under the Rule 8 (2, 5 and 6) of the Security Interest (Enforcement) Rules, 2002, therefore, the possession-cum-sale notice is illegal and is liable to be quashed. The learned Counsel in support of argument has placed reliance on the case reported in case 463247 , decided by the Hon'ble Bombay High Court. But, from a perusal of the copy of the S.A. filed by the appellant it appears that the appellant has not taken such ground in their S.A. This ground was also not argued too by the learned Counsel for the appellant before the learned Presiding Officer, DRT. The appellants have not taken such ground in the memo of Appeal, therefore, the argument of the learned Counsel for the appellant cannot be entertained at this stage. From a perusal of the impugned judgment and order it appears that the learned Presiding Officer has taken care of to consider all the points raised by the appellants in their S.A. He has given reasoned finding on those points which in my opinion do not suffer with any factual or legal infirmity. I am, therefore, of the opinion that the Appeal is devoid of any merit and is liable to be dismissed. ORDER The Appeal is dismissed with no order as to costs. The learned Counsel for the appellants request for extension of interim order for four weeks so that he can get time to approach the Hon'ble High Court. In view of above it is provided that status quo with regard to the secured asset will be maintained by the parties upto four weeks from today.