Canara Bank vs Anand Prakash And Ors

P.K. Bhasin, J

Today after some hearing had taken place, learned Counsel for both the parties have agreed for remanding of the matter back to the DRT for a fresh decision in accordance with law, since the impugned order, as it exists today, cannot be said to be in any way adjudication of any controversy between the parties The impugned order of DRT-II, Chandigarh reads as under:

"The Counsel for applicant states that they wish to buy the property as they are in possession of the same, being the bona fide tenant. The Counsel for the respondent states that they are not the bona fide tenant i.e. prior to mortgage. He further states that they are tenant after mortgage.

The Counsel for the applicant states that they had approached the Hon'ble High Court of Punjab and Haryana in CWP No. 11654 of 2007 wherein it was ordered that the matter be listed within one year and the Bank was permitted to sell the property along with tenant but in any case not to dispossess the tenant. Thereafter on 13.8.2012 the Hon'ble High Court of Punjab and Haryana relegated the applicant to approach this Tribunal with a condition that the applicant herein would not sub let or transfer the possession in any manner to any third person and that the DRT may not be influenced by the orders passed by the Hon'ble High Court of Punjab and Haryana.

Be that as it may.

Respondent No. 1 is free to put the property for sale along with occupant. The occupant may also take part in the bidding process if so advised.

It would be upon the purchaser of the property to evict the occupant but with due process of law.

No further orders are called for in this application.

SA is disposed of.

Copy of the order be supplied to the parties as per Rule and after due compliance the record be consigned to record room."

The respondents had approached the DRT with a claim that they were bona fide and lawful tenants in the property, which the appellant Bank was seeking to take over and sell as a secured creditor in respect of some loan granted to its borrower M/s. Pal Trading Company. The respondents have been claiming themselves to be tenants prior to the creation of alleged equitable mortgage by the aforesaid borrower Company firm in favour of the appellant Bank.

Learned DRT was supposed to decide as to whether the security applicants/respondents herein were lawful tenants in the property in question and if so from which date and similarly DRT was also expected to decide as to whether the appellant Bank was a mortgagee of the property in occupation of the respondents herein and if so from which date it was claiming itself to be a mortgagee because if the respondents were tenants prior to the creation of mortgage, if it was created, respondents may be entitled to appropriate reliefs as tenants and in case the Bank was to prove that its mortgage was prior to the alleged tenancy of the respondents, the consequences would be different. All these points were expected to be answered by the DRT, but, in a casual way the S.A. has been disposed of permitting the Bank to go ahead with sale of the property in question with respondents in possession and with the observation that it would be for the purchaser of the property in question to evict the respondents with due process of law.

This appeal is accordingly allowed and the impugned order dated 23.5.2016 is set aside The matter is remanded back to the DRT for a fresh disposal of the respondents S.A. No. 298/2013 after affording both the parties opportunity to adduce whatever evidence they want to adduce in support of their respective stands, thereafter, the S.A. shall be disposed of uninfluenced by the filing of the present appeal by the Bank and its being disposed of in the aforesaid manner and matter being remanded back to the DRT for a fresh order and making it clear also that this Tribunal has not gone into the merits of the respective cases. Considering the fact that it is an old matter, the DRT shall pass a fresh final order in the S.A. within a period of two months from the date of receipt of copy of this order.

Parties shall now appear before the DRT on 1.9.2018 at 2:00 p.m for receiving further directions in the matter.

Record of DRT shall be sent back along with copy of this order.