Bank Of India vs Deepak Kumar Rana And Ors.

S.N.H. Zaidi, J

The applicants Lt. Col. Vinod Kumar and Mrs. Swati Kumar have filed two applications, (M.C. Nos. 693/2011 and 696/2011) for their impleadment in Miscellaneous Appeal Nos. 97/2011 and 98/2011, which have been disposed of by a common order dated 1.3.2011 passed by this Tribunal, and (M.C. Nos. 694/2011 and 695/2011 for modification of the said order. Mr. Bhandari points out that respondents 2 and 3 of the said appeals and other persons had availed loan facilities from the non-applicant Bank on mortgage of five properties as per Schedule II to the appeals but since the loan account became NPA, actions for the recovery of the outstanding amount were taken by the Bank and though the applicants had never mortgaged their property qua the said loan, they were alleged to have mortgaged one of such properties. He further points out that the actions of the Bank were challenged before the Tribunal below in S.A. Nos. 171/2010 and 405/2010 but in the appeals (Miscellaneous Appeal Nos. 97/ 2011 and 98/2011) filed by the Bank against some orders made in those S.As., this Tribunal, while disposing them of by a common consented order dated 1.3.2011, directed the borrowers (respondents 2 and 3 therein) to make payment of the specified amounts by the given dates with the observation that if there is any default in any of the payments, the appellant (Bank) would be permitted to proceed against respondents 2 and 3 qua all the five properties as per law and the appellant would be at liberty to take actual physical possession as well. Mr. Bhandari further points out that as respondents 2 and 3 defaulted in making payments as per that order, the Bank initiated actions against those properties and after taking possession thereof, sold them out. He also points out that the applicants have challenged the action of the Bank qua their property by filing S.A. No. 72/2011 before the Tribunal below, which is pending but the Bank is relying upon the order dated 1.3.2011 of this Tribunal.

According to Mr. Bhandari, though the applicants were neither the parties to the said S.As. nor to the Miscellaneous Appeals but since the said order dated 1.3.2011 is coming in their way in pursuing their remedy, they be impleaded in those appeals so that they may seek necessary modification thereof.

Mr. Pushkarna, opposing the applicants' impleadment, submits that the Bank is not relying upon the order dated 1.3.2011 which has simply been referred to by the Bank in its reply.

Considering the submissions of the parties' Counsel, I am of the view that the order dated 1.3.2011 being a judgment in personam and not in rem, is binding upon the parties to the appeals and since the applicants were not the party to the S.As. before the Tribunal below, they cannot be said to be proper or necessary party to the said appeals even as per their denial of being mortgagors of one of the mortgaged properties. They cannot to be impleaded in the appeals. The impleadment applications (M.C. Nos. 693/2011 and 696/2011) have, therefore, no merit and are accordingly dismissed. Mr. Bhandari submits that in view of the above order on the impleadment applications, the applicants seek permission to withdraw their applications (M.C. Nos. 694/2011 and 695/2011) for modification/recall. The permission is allowed and the said applications are dismissed as withdrawn.