Dr. Anil Nandkishor Tibrewala And Anr. vs Jammu And Kashmir Bank Ltd. And Ors. on 11 July, 2006
It is only in the event, if there been order/certificate for money and pursuant to that certificate, property of the judgment debtor is sought to be recovered in terms of Rule 4 or recovery by attachment or sale of immovable property then only Rule 11 apply. That rule will not apply in a case where the property was mortgaged and where the declaration was given in favour of the financial institution. The remedy, therefore, under Section 29 also is not available to a party like the petitioners. Our attention is invited to the judgment of a learned judge of the Karnataka High Court in the case of Actia Technologies P. Ltd. v. Canara Bank [2005] 126 Comp Cas 917 : [2006] 2 Bank CLR 169. In that case the property was put for sale by the Recovery Officer. The contention of the petitioners was that the property never belonged to the judgment debtor nor was mortgaged with the bank as a security of payment of loan amount. The court after observing the various provisions of the Act, came to the conclusion that a writ petition could not be entertained, as an alternate remedy was available to the petitioners before it. In that case on the facts we may note that there appears to have been no declaration given by the Tribunal that the property was validly mortgaged.