Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12898 of 2013 ====================================================== 1. Smt. Sakuntala Devi W/O Shri Rana Virendra Kumar Singh @ Virendra Kumar Singh Resident Of R.N. Enclave House No.45, Kanti Factory Road, M.S. Godown Bahadurpur, Patna Versus .... .... Petitioner/s 1. UCO Bank through its Managing Director, Patna. 2. The Branch Manager, UCO Bank Kankarbagh Branch, Patna. 3. The Presiding Officer, Debts Recovery Tribunal, Budh Marg, Patna. 4. The Recovery Officer, Debts Recovery Tribunal, Budh Marg, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Mira Kumari For the Respondent/s : Mr. Ranjeet Kumar Pandey ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 2 23-08-2013 Heard learned counsel for the petitioner and the respondent UCO Bank. The son and daughter-in-law of the petitioner approached the respondent Bank for loan. A property was mortgaged for securing loan. The respondent Bank processed the same and advanced the loan. The borrower(s) defaulted in making payment of the entire dues. Resultantly, the respondent Bank filed O.A. Case No. 232 of 2011 before the Debt Recovery Tribunal under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Notices were issued to the debtors. In spite of notice, they did not choose to appear and contest. The Tribunal by judgment dated 16.05.2012 (Annexure-1)
Legal Reasoning
Patna High Court CWJC No.12898 of 2013 (2) dt.23-08-2013 2 issued certificate of recovery in respect of 14,92,809/- with pendente lite and future interest w.e.f. 1.10.2011 till realization. The Recovery Officer vide order dated 17.09.2012 passed in R.P. No. 184 of 2012 attached the immovable property details whereof has been set out therein for realization of the dues. Aggrieved by those two orders, the present writ petition has been filed. Learned counsel for the petitioner submits that son and the daughter-in-law committed fraud with the petitioner as well as the respondent Bank inasmuch as a forged document showing title of the land in the borrower(s) was furnished to the Bank relying whereon the loan was sanctioned. It has been submitted that the respondent Bank having realized the aforesaid fact lodged an F.I.R. vide Kankarbagh P.S. Case No. 150 of 2011 on 08.05.2011 (Annexure-3) against the Company and its proprietors which include the son and the daughter-in-law.
Legal Reasoning
Learned Counsel has drawn attention of the Court to the contents of the F.I.R. in order to demonstrate that the respondent Bank (the informant) found that the documents furnished by the borrower(s) were fake documents. The loanees as well as the Advocates who had vouched the documents were made accuseds in the said criminal case. It is submitted that the said case is now pending trial before the competent Court of Law. After having lodged the Patna High Court CWJC No.12898 of 2013 (2) dt.23-08-2013 3 F.I.R., the respondent Bank filed the original application before the Tribunal in which without affording an opportunity of hearing to the petitioner, the impugned order has been passed. The petitioner approached the Tribunal and made attempts to file Miscellaneous Application in O.A. No. 232 of 2011 but the same was not accepted. This is what the petitioner has stated in paragraphs 11 and 12 of the writ application:- “11. That it is stated that the petitioner appeared before the Recovery Officer and filed a request petition to withdraw the case as the attached property belongs to her and she is neither the borrower nor guarantor in above said Loan. 12. That it is submitted that as advised, the the D.R.T. Patna on petition approached 30/1/2013 and tried to file a Misc. Application before the Presiding Officer, Patna but they did not ready to accept the filing of the petitioner and asked to file a memorandum of appeal.” It has thus been submitted that the said order dated 16.05.2012 passed by the Tribunal in O.A. No. 232 of 2011 and the order dated 17.09.2012 passed by the Recovery Officer of the Bank in R.P. No. 184 of 2012 be quashed and set aside. Learned counsel for the respondent Bank, on the other hand, submits that the petitioner is the mother and mother-in-law respectively of the two loanees. The loanees were, therefore, impleaded as respondents in the original application filed by the Bank. In spite of service of notice, the loanees did not appear Patna High Court CWJC No.12898 of 2013 (2) dt.23-08-2013 4 thereat. The Tribunal, in such circumstances, considered the material on record and passed order. If any one including the petitioner is aggrieved thereby, the statute itself provides a forum of filing appeal thereagainst in terms of Section 20 of the Act. Learned counsel for the petitioner contended that the remedy of appeal, in the facts and circumstances of the case, would be onerous as petitioner shall have to deposit certain percentage of the outstanding dues. To this, learned counsel for the Bank submitted that there is ample jurisdiction vested in the Appellate Authority in terms of Section 21 of the Act to waive and/or reduce the amount to be deposited for filing such appeal. I have heard the parties and perused the materials on record. The petitioner has raised an issue that the documents of title in respect of the property which was mortgaged by her son and daughter-in-law was forged document. The petitioner has been duped by none other than her own son and daughter-in-law. Although the F.I.R. seems to have been lodged but the validity/legality of the document cannot probably be gone into in the criminal proceeding. This is also a fact that the petitioner was never afforded an opportunity of hearing by the Tribunal before passing the aforesaid order obviously because she was not impleaded as respondent in the original application. On perusal of Patna High Court CWJC No.12898 of 2013 (2) dt.23-08-2013 5 the provisions contained in Section 21 of the Act, it is more than apparent that any person aggrieved by the order passed by the Tribunal can file appeal thereagainst. In the facts of the case, the petitioner cannot be said to be an alien to the proceeding. The property claimed by her is involved. Prima facie it appears the respondent Bank also found that the documents of title filed for securing loan was/were fake. It also appears that the Recovery Officer has already proceeded in the recovery proceeding inasmuch as the subject property/land has been attached. Regard being had to above, this Court would hold that the petitioner having interest in the land/property which was mortgaged with the Bank is covered by the words “any person” appearing in Section 20 of the Act. Let the petitioner file appeal against the order dated 16.05.2012 passed in O.A. No. 232 of 2011 in accordance with the provisions of the Act after seeking condonation of delay, if any. The next question is what relief in the meanwhile can be granted to the petitioner. Considering the facts of the present case, this Court would direct the Recovery Officer of the respondent Bank who is in seisin of R.P. case No. 184 of 2012 not to proceed further in the matter for a period of four weeks enabling the petitioner to file appeal against the impugned order. Patna High Court CWJC No.12898 of 2013 (2) dt.23-08-2013 6 The application is disposed of with the aforesaid observation(s) and direction. Pankaj/- (Kishore Kumar Mandal, J)