Deshpal Singh vs Punjab & Sind Bank And Ors.

Ranjit Singh, J

Mr. Deshpal Singh filed two appeals (Inward Nos. 161/2015 and 162/2015). Order under challenge in Appeal/Inward No. 162/15 is passed in T.A. 122/2000 (O.A. 260/95) decided on 6.6.2007. Appeal/Inward No. 161/2015 is filed to challenge the order passed by the Tribunal on 3.3.2015. The Tribunal below has rejected the appeal filed by the appellant under Section 30 of the RDDBFI Act while upholding the order passed by the Recovery Officer (R.O.) dated 20.8.2014 in regard to the liability of the appellant being LR of one of the CDs.

Apparently the appellant has woken up to challenge the order passed on 6.6.2007 in the year 2015 in the second Appeal/Inward No. 162/2015. Is it so or the factual position is different? In any event, this appeal is filed with delay of 2818 days. An application seeking condonation of this inordinate delay as well as an application under Section 21 of the RDDBFI Act is filed seeking waiver of the requirement of pre-deposit.

At the outset, the Counsel for the appellant has submitted that appellant is keen and interested to bring an end to this litigation and for this purpose, he has brought a draft for a sum of Rs. 63,31,611/- in the name of Registrar of this Tribunal which he is prepared to deposit. As per the Counsel, this was the amount claimed and allowed in the O.A. along with the pendente lite and future interest @ 17.5% p.a, with quarterly rests. The Counsel states that the appellant would submit himself to the discretion of this Tribunal to pass any order so far as the rate of interest is concerned and the appellant would be ready and willing to honour that and discharge the entire liability which may be worked out in this manner.

The O.A. filed by Punjab and Sind Bank was allowed long ago in the year 2007. Smt. Veera Wali was impleaded as one of the defendants being defendant No. 3. Smt. Veera Wali was a guarantor to various loans advanced in favour of one Mr. Tejwant Singh, (defendant No. 1 in the O.A.). The Bank was held entitled to recover this amount from various respondents including defendant No. 3 in the O.A. She was also restrained by way of injunction from transferring or alienating or creating any third party interest in the property mortgaged and hypothecated with the Bank or dealing with the said property as detailed in the O.A. in any manner whatsoever without first paying the claim of the Bank.

The appellant who was inherited this mortgaged property bearing No. 7/27, West Patel Nagar, New Delhi had filed objection before the R.O. where an order for attachment of this property was passed on 8.10.2013. The claim by the appellant before the R.O. was that he had independent right over the property as he had acquired the same by registered Will executed by his late mother Smt. Veera Wali and thus the property had devolved on the appellant.

The stand of the Bank was that Smt. Veera Wali was guarantor and mortgagor and had created an equitable mortgage of this property by depositing title deed on 7.12.1978. The mortgage was confirmed on 4.1.1979.

In this case, the borrower had requested for converting ODP Limit of Rs. 10 lac to Term Loan while agreeing to mortgage this property. When the borrower failed to maintain financial discipline, the Bank had filed this O.A., leading to order for recovery of the amount as already noticed.

From the record it is noticed that the appellant representing the estate of his mother Smt. Veera Wali had filed MA. No. 35/2007 for setting aside the ex parte judgment. His main plea was that Smt. Veera Wali had expired on 7.8.2001 and the O.A. against her would stand abated.

The factual position was that on the death of Smt. Veera Wali the Bank had filed application seeking impleadment of her legal heirs. The appellant being legal heirs of Smt. Veera Wali had appeared and opposed the prayer made by the Bank, but, subsequently, he and other LR stopped appearing and thus they were proceeded ex parte, after allowing the prayer for their impleadment.

Against the order rejecting the prayer in the M.A., the appellant had filed Appeal No. 109/2010 before this Tribunal, which was dismissed on 22.11.2010. The order passed by the Tribunal thus was upheld by this Tribunal.

The Tribunal has observed that the appellant being legal heir of Smt. Veera Wali cannot be allowed to take up those pleas which he was required to take in the O.A. The Counsel for the appellant had also pointed out before the Tribunal below that liability of late Smt. Veera Wali being guarantor and mortgagor would be limited to the extent of Rs. 10 lacs, which was the Term Loan, with interest @ 15% p.a. as is available in the deed of guarantee. The Tribunal below has rightly noticed that all these pleas could be taken only in the O.A. and not during the stage of recovery. It is also rightly observed by the Tribunal that once the appeal filed against the order passed in the M.A. was dismissed by this Tribunal, the Tribunal below would be without jurisdiction to interfere and re-open the issue in the appeal field under Section 30 of the Act.

The observation made by the Tribunal below apparently has prompted the appellant to file appeal not only against the order passed in an appeal under Section 30 of the Act, but also against the order passed in the O.A. Once the appellant could not succeed in his effort to get ex parte judgment set aside in the O.A. in the year 2007, he seems to have been ill-advised to challenge the order passed in the O.A. now. Appeal/Inward No. 162/2015 filed to challenge the order dated 6.6.2007 is nothing but abuse of process of Court. Not only the effort by the appellant to seek setting aside the ex parte judgment in the O.A. was rejected, but appeal against this order was also dismissed. How can the appellant be heard in this appeal which is nothing but a second appeal? In any case, this appeal is filed with inordinate delay. If anything can be said about the conduct of the appellant is that he has filed the Appeal/Inward No. 162/2015 which is an abuse of the process of Court. It is to mislead this Tribunal that this appeal is filed to impugn the order which otherwise has attained finality. The M.A. 35/2007 filed by the appellant was dismissed on 18.1.2010. The appeal filed against this order was then dismissed by this Tribunal on 22.11.2010. Both the orders are detailed orders passed after considering the challenge raised against the order passed in O.A. on merits. If the appellant had any intention to challenge the order in the O.A. on any other ground, then he ought to have raised those grounds in the said M.A. or in appeal before this Tribunal. Having not done so, the appellant even cannot justify the delay in filing the appeal against the order passed in O.A. The appellant had the knowledge of this order when it was passed in the year 2007. He cannot be heard now at this stage to seek condonation of this delay.

I also find that the prayer made by the appellant to discharge the amount claimed in the O.A. to show his bona fide is again not an honest approach. The recovery proceedings are in respect of facilities which were allowed in the year 1978. The O.A. was allowed ex parte on 6.6.2007. The total liability standing against the appellant and others is to the tune of Rs. 56,77,34,801.18 up to 31.3.2015. Who would not be interested in discharging such a liability by paying a sum of Rs. 63 lac and odd with interest knowing fully well that otherwise the liability is so huge?

The plea by the appellant to claim that he is interested to end the litigation- and leaving the discretion to this Tribunal to decide the rate of interest is a self-serving plea and nothing else. The conduct of the appellant being what it is and acting in manner to mislead the Tribunal is nothing but misuse and abuse of the process of this Tribunal. He would not deserve any consideration either in equity or otherwise. A litigant who does not approach the Court with clean hands cannot seek any concession whatsoever as has been held by the Supreme Court. The appellant does not have any justification support any of his pleas raised in these appeals.

The appellant is not prepared to have an opportunity to redeem the property at the price that it may fetch in an auction by allowing the Bank to receive bid for auction. Both the appeals are dismissed in limine.

Since appeals have been dismissed, no order needs to be passed in any of the pending applications.