JUDGMENT : R.K. GUPTA, J. (CHAIRPERSON) 1. On behalf of the respondent-Society the reply is filed which is taken on record and is considered. For the reason stated in the application the order to proceed ex parte is set aside and the matter is heard finally. The present Appeal is preferred under Section 20 of the RDDBFI Act, 1993 challenging the order passed by the Tribunal on 26th October, 2012 in O.A. No. 77/2001. By this order the Tribunal has dismissed the Original Application preferred by the appellant-Bank under Section 19 of the RDDBFI Act, 1993. 2. The relevant facts for the adjudication of the present case are that the respondent-Society was granted loan facility by the appellant-Bank. The loan was for the development of the land belonging to the Society. The respondent is a housing society. After when the loan was granted by the appellant-Bank to the respondent Society, then the land was developed and ultimately the developed land was allotted to the members of the respondent-Society for construction of the residential houses. The residential houses were constructed. 3. The loan was not repaid by the respondent-Society, therefore, the appellant-Bank filed an Original Application before the Tribunal for recovery of a sum of Rs. 5,33,90,930.93 together with interest. Earlier the claim was filed for a lesser amount, subsequently, the claim was amended by moving an appropriate application by the appellant-Bank, which was allowed by the Tribunal. 4. The Tribunal was of the view that since it was a composite loan, therefore, the defaulter members are responsible along with the Society to repay the same to the appellant-Bank. 5. Tribunal further relied upon a judgment passed by the Hon'ble High Court of Gujarat which is reported in AIR 2009 Guj. 43 , Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (HUDCO). The Tribunal was also of the view that since the recoveries from the defaulter members are also persuaded through Tehsildar even during the pendency of the Original Application, therefore, simultaneously, two parallel proceedings to recover the dues under the RDDBFI Act, 1993 is not maintainable. 6. Learned Counsel for the appellant-Bank at the first instance submitted that the finding arrived at by the Tribunal that the appellant-Bank is also proceeding against the defaulter members by persuading the claim through the Tehsildar to recover the amount was not a case of either party. 6. Learned Counsel for the appellant-Bank at the first instance submitted that the finding arrived at by the Tribunal that the appellant-Bank is also proceeding against the defaulter members by persuading the claim through the Tehsildar to recover the amount was not a case of either party. He submitted that even the respondent-Society nowhere submitted that the case is being persuaded by the appellant-Bank by initiating the proceedings through the Tehsildar from its defaulter members. 7. Learned Counsel appearing for the respondent-Society Mr. Atul Nema also admitted that it was never submitted before the Tribunal that the appellant-Bank is persuading the recovery by initiating the proceedings through the Tehsildar against the defaulter members. Under the circumstances, the reason given by the Tribunal that the Original Application is not maintainable because during the pendency of the Original Application the appellant has initiated the proceedings to recover its dues by initiating the proceedings through the Tehsildar cannot be accepted. Thus, the finding as such has to be treated to be a perverse finding. 8. The next question arises with regard to the maintainability of the claim against the Society. It is submitted on behalf of the appellant that the Tribunal has acted arbitrarily by passing the present judgment with regard to the maintainability of the claim by not impleading the defaulter members. 9. Learned Counsel for the appellant submitted that the Tribunal in one case has already held that in the absence of privity of contract between the Bank and the defaulter members, the claim would be maintainable against the Society. The learned Counsel for the appellant relied upon a judgment passed by the DRT, Jabalpur in S.A. No. 164/2010 on 21st February, 2013, Munna Lal Choudhary v. Sarguja Kshetriya Gramin Bank, where the similar objection was rejected by the Tribunal on the ground that the claim in the absence of the privity of contract between the Bank and the defaulter members will also be maintainable and the Bank will have right to recover the amount from the Society. 10. 10. In this regard, this is to be seen that the judgment so passed by the Tribunal in case of Munna Lal Choudhary (supra) if it is to be considered, then in the said case the Bank granted the loan to the Society and it was the claim of the Society in the Securitization Application before the Tribunal that the loan was taken for the members of the Society, therefore, the same may be recovered from the members (farmers) of the Society to whom the loan was disbursed. The Society was only a Nodal Agency. The said plea was not accepted by the learned Tribunal on the ground that there was no privity of contract between the members of the Society and the Bank, but the privity of contract was between the Society and the Bank. 11. In the present case, admittedly the loan was granted to the Society and there was no privity of contract between the members allottee of the Society, but the privity of contract in relation to the loan transaction was between the Bank and the Society. The members of the Society committed default and few of the members discharged their liability but according to the Society 63 members still have not discharged their liability. On this fact it is submitted that while executing the Recovery Certificate in terms of the judgment passed by the Hon'ble High Court of Gujarat in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra) recovery has to be made by issuing notice to the defaulter members also. On this fact it is submitted that while executing the Recovery Certificate in terms of the judgment passed by the Hon'ble High Court of Gujarat in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra) recovery has to be made by issuing notice to the defaulter members also. The judgment if it is to be seen carefully, then no doubt as per the judgment passed by the Hon'ble High Court in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra) the objection as such was raised at the execution stage and not at the time when the Original Application was allowed and the Recovery Certificate was issued, the judgment further states that as per the IInd Schedule of the Income-tax Act the recovery of the loan by attachment or sale of the property in the execution proceedings, rights and obligations of the defaulter members are to be adjudicated by the Recovery Officer and thus, if the ratio of the judgment is to be applied, then in the present case all such objections, which the Society has raised that certain defaulter members have not discharged their liability, which resulted into the default of the Society in repayment of the loan, can be very well adjudicated by the Recovery Officer while executing the Recovery Certificate and the amount as such can be received by the Recovery Officer from the allottee-members. 12. But the question is, when the Original Application is filed, whether all such objections would be relevant for dismissal of the claim that it is not maintainable against the Society. The question as such in terms of the judgment passed by the Hon'ble High Court of Gujarat in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra) would be relevant and when the same can very well be adjudicated by the Recovery Officer while executing the Recovery Certificate, then the claim filed by the Bank against the Society cannot be dismissed. But the Tribunal has dismissed the claim as not maintainable in the light of the judgment passed by the Hon'ble High Court in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra). The judgment passed by the Hon'ble High Court of Gujarat as aforesaid is entirely different and defines the powers of the Recovery Officer while executing the Recovery Certificate. But the Tribunal has dismissed the claim as not maintainable in the light of the judgment passed by the Hon'ble High Court in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra). The judgment passed by the Hon'ble High Court of Gujarat as aforesaid is entirely different and defines the powers of the Recovery Officer while executing the Recovery Certificate. As per the judgment passed by the Hon'ble High Court of Gujarat, the Recovery Officer shall be competent and will have jurisdiction to decide the objection of the members when their property is attached which was allotted to them by the Society. But the question as such is not relevant at the time when the Original Application is to be adjudicated. 13. Yet there is another aspect of the case. The Tribunal relied upon the judgment passed by the Hon'ble High Court of Gujarat in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra) for rejection of the claim but failed to appreciate the facts in the case of Gujarat High Court. Paragraph No. 3 of the judgment as aforesaid, itself indicates that the appellant-Bank joined the allottees also along with the Society as defendant, but while allowing the Original Application no Recovery Certificate was issued against the allottees members and the certificate was only issued against the Society. Therefore, as per the judgment of the Hon'ble High Court of Gujarat as aforesaid, it was held that the Recovery Officer has power to adjudicate objections of the allottee-members while executing the Recovery Certificate to realize the amount from the sale of the mortgaged property. But the Tribunal placed reliance on the said judgment for dismissal of the claim which is not correct as per the judgment passed by the Hon'ble High Court of Gujarat as aforesaid. 14. The Society has not disputed the quantum of the amount claimed by the appellant which was for a sum of Rs. 5,33,90,930.93 together with interest. The Society will be competent to submit the list of the defaulter-members to the Recovery Officer and thereafter, the Recovery Officer shall deal with the same as per the judgment passed by the Hon'ble High Court of Gujarat in Devavrat Shivaprasad Bhatt v. Housing Urban Development Corporation (supra). 15. For the reasons recorded herein above, the Original Application has to be allowed and is allowed. It is directed to issue the Recovery Certificate for a sum of Rs. 15. For the reasons recorded herein above, the Original Application has to be allowed and is allowed. It is directed to issue the Recovery Certificate for a sum of Rs. 5,33,90,930.93 together with pendente lite interest @ 10% per annum and the future rate of interest would be the contractual rate of interest till its recovery. 16. The appellant Bank shall be entitled to recover the amount in case not paid by the Society through sale of the mortgaged property in accordance with law. In view of the aforesaid, the Appeal stands allowed.