Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1065 of 2013 ====================================================== 1. Raghav Pandey Through His Natural Guardian Sri Amarnath Pandey Of Flat No. 702, Ashray R.P. Tower, Fraser Road, Police Station Kotwali, District Patna. .... .... Petitioner/s Versus 1. The State Bank Of Bikaner & Jaipur Through Its Chairman, Head Office, Tilak Marg, Post Box No. 154, Jaipur, Rajasthan 2. The Chief General Manager, Head Office, State Bank Of Bikaner & Jaipur, Jaipur, Rajasthan 3. The Regional Manager, Regional Office, State Bank Of Bikaner & Jaipur, Patna Region, Abhay Bhawan, Fraser Road, Patna 4. The Branch Manager, State Bank Of Bikaner & Jaipur, Frazer Road Branch, Patna. .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.1114 of 2013 ====================================================== 1. Raghav Pandey Through His Natural Guardian Sri Amarnath Pandey R/O Flat No.702, Ashray, R.P. Tower, Fraser Road, P.S.-Kotwali, Distt- Patna. .... .... Petitioner/s Versus 1. The State Bank Of Bikaner & Jaipur Through Its Chairman, Head Office, Tilak Marg, P.O. No.154, Jaipur, Rajasthan 2. The Chief General Manager, Head Office, State Bank Of Bikaner&Jaipur, Jaipur, Rajasthan 3. The Regional Manager, Regional Office, State Bank Of Bikaner & Jaipur, Patna Region, Abhay Bhawan, Fraser Road, Patna 4. The Branch Manager, State Bank Of Bikaner & Jaipur, Frazer Road Branch, Patna. .... .... Respondent/s ====================================================== Appearance : (In CWJC No.1065 of 2013) For the Petitioner/s : Mr. Uma Kant Prasad For the Respondent/s : Mr. Nilu Agrawal (In CWJC No.1114 of 2013) For the Petitioner/s : Mr. Sanjeev Kumar Singh For the Respondent/s : Mr. Nilu Agrawal ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 5 17-09-2013 Both the applications raise common issues and are Patna High Court CWJC No.1065 of 2013 (5) dt.17-09-2013 2 founded on common facts. The orders which have been impugned in the two writ applications are similar/identical but passed in two different Miscellaneous applications preferred by the petitioner seeking review of the order passed in Appeal No. 01 of 2010 (M.A. No. 408 of 2012) and Appeal No. 02 of 2010 (M.A. No. 407 of 2012) by the Tribunal under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short “ the Act”). Both the applications, therefore, heard together with the consent of
Legal Reasoning
the parties and the order present shall govern them. Relevant facts are drawn from C.W.J.C. No. 1065 of 2013 and stated hereinbelow: Ashray R.P. Tower, Fraser Road was developed by the Builder namely Ashray Technocrats Pvt. Ltd on the basis of development agreement with the landlord. The petitioner entered into an agreement to sale with the Builder namely Ashray Technocrats Pvt. Ltd. with respect to Flat No. 702 on 27.06.2000. As per the pleadings, the petitioner subsequently became the absolute owner of the said flat upon execution of sale deed by the builder. The respondent Bank had granted over draft facilities and Medium Term Loan to one M/S Magadh Coloniser Pvt. Ltd. An unregistered document was created by the borrower in respect of Flat nos. 701, 702 and 503 of Ashray R.P. Tower inasmuch the Patna High Court CWJC No.1065 of 2013 (5) dt.17-09-2013 3 Director of the M/S Magadh Colonisers Pvt. Ltd had entered in sale and purchase agreement with respondent Bank on 09.01.1999 and also filed an affidavit dated 16.01.1999 giving an undertaking that the flats including Flat No. 702 of Ashray R.P. Tower will not be transferred without the written consent of the Bank. Since the borrower defaulted in repayment of the loan, the respondent Bank filed an application bearing O.A. No. 29 of 2002 against M/S Magadh Coloniser Pvt. Ltd. for recovery of loan amount which was allowed ex-parte whereby the Tribunal certified that the applicant Bank was entitled to receive loan and its interest amount. A recovery proceeding bearing R.P. Case No. 36 of 2003 was thereafter initiated at the instance of Certificate holder (respondent Bank). The Recovery Officer vide order dated 04.06.2004 attached the three flats of Ashray R.P. Tower including Flat No. 702 treating them to be the property of the Director of the said company in respect of which an agreement was signed between the respondent Bank and the borrower. The petitioner filed an objection on 10.08.2005 before the Recovery Officer. The Recovery Officer while considering the said objection of the petitioner found and held that alleged sale and purchase agreement dated 09.01.1999 was not a registered document and, as such, same cannot be considered to hold that these flats had been Patna High Court CWJC No.1065 of 2013 (5) dt.17-09-2013 4 mortgaged by the borrower with the Bank. By an order dated 23.02.2007 (Annexure-4), the Recovery Officer allowed the objection and the attachment order of Flat No. 702 was withdrawn. It is the case of the petitioner that subsequent thereto, the aforesaid Flat No. 702 was sold to the petitioner and he became absolute owner thereof. The respondent Bank filed Misc. Case No. 22 of 2007 challenging the order dated 23.2.2007 passed in R.P. Case No. 36 of 2003. The said case was later converted into Appeal No. 01/2010. The Tribunal by an order dated 30.3.2011 allowed the said appeal. Aggrieved thereby, the petitioner filed Misc. Appeal No. 408 of 2012 seeking review of the order dated 30.3.2011 on the ground inter alia that it was not brought to the notice of the Tribunal that agreement to sale dated 09.01.1999 was unregistered and, therefore, does not create any interest or transfer of interest in the subject flats. The Tribunal after hearing the parties by order dated 02.11.2012 dismissed the said Misc. application.
Legal Reasoning
Heard Mr. Sanjay Singh learned counsel for the
Decision
petitioner in both the writ petitions and Mrs. Nilu Agrawal for the respondent Bank. It has been strenuously argued by the petitioner that the Tribunal while passing the impugned order misconstrued the Patna High Court CWJC No.1065 of 2013 (5) dt.17-09-2013 5 sale and purchase agreement (Annexure-2) entered between M/S Ashray Technocrats Pvt. Ltd and the Branch Manager of the respondent Bank. Similarly, the affidavit filed by one Sri Vinod Kumar, the Director of M/S Ashray Technocrats (Annexure-3) was also not considered in right perspective. It has been submitted that the sale and purchase agreement was unregistered. Even if the same was taken into consideration, it does not appear therefrom that the three flats mentioned therein were mortgaged to the respondent Bank. The order passed by the Tribunal is, therefore, bad in law. Mrs. Agrawal learned counsel for the respondent Bank, per contra, submitted that the order was passed by the Tribunal after hearing both the sides. The issue raised before the Recovery Officer was that the agreement to sale was initially made in favour of the respondent Bank on 9th January, 1999. The petitioner entered into an agreement for sale of Flat No. 702 subsequently on 27.06.2000 which also does not vest any right or title in the petitioner as the same was not a registered document. The loanee had already entered into an agreement for sale and purchase in respect of the three flats including Flat No. 702 with the respondent Bank and by an affidavit duly affirmed by the Director of M/S Ashray Technocrats Pvt. Ltd, those flats were Patna High Court CWJC No.1065 of 2013 (5) dt.17-09-2013 6 given as security to the Bank. An undertaking was also given that those flats shall not be transferred to anyone without written consent of the Bank till the entire loan is paid and the dues are cleared. The stand of the respondent Bank is reflected from paragraph 13 of the counter affidavit which reads thus: “13 That on the following grounds the (i) Appeal 2/2010 was preferred:- learned Recovery Officer That released the attachment order with respect to flat No. 702 on the basis of flat sale and purchase agreement dated 27.6.2000 which also does not show any right or title as it was not registered document. Rather a Annexure-O (Annexure-A of the counter affidavit) is of a prior date dated 9.1.99 and an affidavit has also been sworn by the Binod Kumar, borrower and Director of M/S Magadh Colonisers with an undertakings not to transfer the said flat to any one else without the written consent of the Bank till the entire loan is not repaid and cleared. Hence, learned Recovery Officer ought to have considered a prior document than a subsequent one. That the learned Recovery Officer has erred in coming to a conclusion that the said flat No. 702 was mortgaged for a separate legal entity from M/S Ashray Technocrat and a corporate guarantee is required for transfer of mortgage from one company to another company. The learned Recovery Officer failed to consider that the attachment order to personal regard was with rather (ii) the Patna High Court CWJC No.1065 of 2013 (5) dt.17-09-2013 7 (iii) property of borrower Binod Kumar Flat No. 702 at Ashray’s R.P. Tower was his property and order of attachment dated 4.6.2004 was legal and proper. That the Recovery Officer, ought to have rejected the objection petition with regard to flat No. 702 and proceeded with the auction of flat No. 702. If the objector claimed any right and title over the said flat no. 702, the matter should have been decided by a Civil Suit and not the Recovery Officer in the Recovery proceedings before the D.R.T. Patna.” It has thus been argued that what shall be the effect of the two documents is required to be examined in the light of the facts appearing from record by the Recovery Officer. It has thus been contended that the Recovery Officer is required to consider the legal effect of the two documents keeping in focus the fact that the document(s) (agreement to sale) filed by the petitioner was subsequent to the memorandum of agreement reached between the loanee and the respondent Bank supported by an affidavit of undertaking. The Recovery Officer completely failed to consider that the attachment order was in respect of the personal property of the borrower Vinod Kumar which includes Flat No. 702 at Ashray R.P. Tower. Both the counsels having made submissions at some Patna High Court CWJC No.1065 of 2013 (5) dt.17-09-2013 8 length have agreed that the parties be allowed to raise their respective stands/pleas before the Recovery Officer where the matter is pending who shall consider the submissions of the parties and take a decision in accordance with law uninfluenced by the orders dated 30.03.2011 and 28.11.2011 respectively passed by the Tribunal. In the light of the said stand taken by the parties, I am inclined to dispose of the present application(s) permitting the parties to raise their claims afresh before the learned Recovery Officer for consideration and disposal in accordance with law. I order accordingly. Pankaj/- (Kishore Kumar Mandal, J)