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Judgment
I.A. No. 88/2024 (Application for condonation of delay)
The present application is filed for condonation of delay in filing the present appeal. It is stated that the delay was neither intentional nor deliberate in filing the present appeal.
After considering all facts, the delay in filing the present appeal stands condoned. The application is accordingly allowed.
Appeal No. 27/2024
Perusal of record reflects that the respondents have been duly served and the appellant have also filed the affidavit of service. None appeared on behalf of the respondents. Hence, respondents are proceeded ex-parte.
The present appeal is filed to impugn the judgment dated 26.06.2023 passed in O.A. No. 206/2018 titled as Canara Bank v. Shri Nitin Parikh & others which was stated to be pending before the DRT-Jaipur. The DRT-Jaipur vide impugned order dated 26.06.2023 has dismissed the said OA by observing as under:-
5.As per above said facts, it is clear that a credit facility has already been sanctioned by Piramal Capital & Housing Finance in favour of Defendant No. 3 in the year 2014 on depositing of title deeds with them on 26.09.2014, whereas, present OA has filed by the Applicant for recovery of its outstanding amount because they sanctioned housing loan in favour of Defendants No. 1 to 3, vide Sanction Letter on 29.04.2015.
6.Therefore, I am of the considered view that the Applicant do not have any right to recover the outstanding amount from the Defendants No. 1, 2 & 3, because mortgage of the subject property was created by Defendant No. 3 in favour of Defendant No. 4 by depositing title deed on 26.09.2014. If the Officers of the Applicant Bank sanctioned any credit facility to any of the Defendants, without creating legally enforceable mortgage of the property, then the Bank do not have any right to recover the outstanding amount from Defendants No. 1 & 2. Defendant No. 4 do have every right to recover the outstanding amount as they have a valid mortgage and original title deeds with them. The Applicant Bank was cheated by their own officers, who in connivance with other private person, caused wrongful loss to the Bank, which cannot be treated as "Debt".
It is reflecting from the impugned judgment dated 26.06.2023 that the DRT-Jaipur has observed that the credit facility in favour of defendant no.3 was sanctioned by M/s Piramal Capital & Housing Finance Limited i.e. defendant no.4 in the year 2014 on depositing title deed on 26.09.2014. It was further observed that the appellant has filed the present O.A. on the basis of sanction letter dated 29.04.2015. The DRT further observed that the appellant did not have any right to recover the outstanding amount from the defendants no.1 to 3 due to the mortgaged of the subject property was created by defendant no.3 in favour of defendant no.4. The DRT further ultimately decided that the outstanding dues as claimed by the appellant cannot be treated as debt.
Sh. Vikram Pratap Singh, Advocate for the appellant after referring the original application argued that the appellant has sanctioned the loan in favour of respondents no. 1 and 2 (defendants no.1 and 2) vide sanction letter dated 29.04.2015 and a Tripartite agreement was also executed between the appellant and respondents no.1 to 3.
It is further stated that the appellant is entitled to proceed against the personal movable and immovable assets of the respondents no.1 to 3 and also to attach and to sell their personal properties for recovery of debt. It is also stated that the appellant is also entitled for declaration of second charge holder of the subject property and this fact was not duly considered by the DRT in the impugned judgment.
There is force in the arguments advanced by the Counsel for the appellant. The DRT should have consider regarding the attachment of other movable and immovable properties of the respondents no.1 to 3 for the recovery of debt and the second charge may also be declared in favour of the appellant in respect of the subject property.
After considering all facts, the impugned judgment dated 26.06.2023 is set aside and the O.A. bearing No. 206/2018 is remanded back to the DRT-Jaipur for re-determination after considering all the facts as stated in the Original Application by the appellant. The appellant is directed to appear before the DRT-Jaipur on 28.07.2026 for further direction.