Dr. Prem Krishna Verna & Ors. vs Punjab Nation Bank

JUSTICE R. D. KHARE, CHAIRPERSON

The present appeal has been preferred by the appellants-borrowers under section 20 of the Recovery of Debts and Bankruptcy Act, 1993 (in short "the RDB Act") against the judgment and order dated 16.06.2017 passed by the Tribunal below, whereby the O.A. No. 89/2015 filed by the respondent-Bank has been allowed.

Brief facts of the matter are that the appellants no. 1 to 3 were granted a term loan by the respondent-Bank vide sanction letter dated 14.02.2012 for purchase of a semi constructed house at Plot No. 45 situated at a piece of land of Khasra No. 231/3 having area of 119.60 Sq.mtr. from one Smt. Krishna Pathak, W/o Anil Kumar Pathak, who had purchased the same from Shri Ankur Agarwal partner of M/s Shyamji Estate on 24.10.2008. In order to secure the same, the appellants no. 1 to 3 created an equitable mortgage over the said property in favour of the respondent-Bank by depositing original title deed dated 17.02.2012 with the Bank. In addition to it, appellant no. 4 also stood as guarantor to the said facility. Since the borrowers did not maintain the financial discipline, therefore, the account was classified as NPA on 16.07.2013 and a demand notice dated 19.09.2013 u/s 13(2) of the SARFAESI Act was issued followed by the possession notice dated 27.01.2014 u/s 13(4) of the said Act. Since the borrowers did not pay any heed to the said demand, therefore, the appellant-Bank filed an Original Application No. 89/2015 u/s 19 of the RDB Act, 1993 for recovery of Rs.20,39,705/- along with pendentelite future interest and costs, which has been allowed by the Tribunal below vide order impugned in toto against the appellants/defendants. Being aggrieved by the said order, the present appeal has been filed by the appellants.

Learned counsel for the appellants has referred to page no. 109 of the paper book, which is copy of supporting of loan proposal/sanction letter dated 14.02.2012 and has stated that Bank has reserved the right to disburse the loan amount in the account of seller as per the loan agreement. It was further contended that the loan amount of Rs.15.00 lacs was credited in the account of seller, from whom the property in question was being purchased by the appellants.

Learned counsel further submitted that the empaneled advocate of the respondent-Bank had made a detailed search and given search certificate along with legal opinion on 22.11.2011 and in this regard, the learned counsel has referred to page no. 74 of the paper book. It was also contended that the respondent bank has released the loan amount in the account of Smt. Krishna Pathak, W/o Anil Kumar Pathak vide demand draft No.921196 dated 14.02.2012, copy of which is at page 153 of the paper book. It was further contended that the Bank took possession of the property in question on 23.01.2014 as per the possession notice at page 225 of the paper book.

Learned counsel further submitted that on 01.12.2015 the applicant came to know through RTI that the property is in possession of the Bank and the Bank is not intending to take any action against Smt. Silpi Sharma, who is claiming to be owner of the property in question. It was further contended that the Tribunal below has considered the objection of the appellants in paragraph No. 15 of the order impugned, but in para no. 16 of the same has wrongly held that the appellants have utilized the loan amount, whereas the same was directly credited by the respondent-Bank in the account of the seller namely Smt. Krishna Pathak. It was thus contended that the Bank may recover its dues from the seller and not from the appellants, as the appellants have neither taken any amount of the Bank and have not got the property in question, but these facts have not been considered by the Tribunal below while passing the order impugned, hence the order impugned is not sustainable. It was, therefore, prayed that the order impugned may be quashed and the appeal filed by the appellants may be allowed by exonerating the appellants from their liability as fastened by the Tribunal below.

Learned counsel for the respondent-Bank submitted that the appellants have purchased the property in question with open eyes. It was further contended that it was duty of the appellants to ensure that the title of Smt. Krishna Pathak was perfect at the time of selling the property in question to them and for the mischievous acts done by Smt. Krishna Pathak and Shri Ankur Agarwal, partner of M/s Shyamji Estate with the appellants, the respondent-Bank is not liable to suffer. It was also contended that the appellants have also themselves admitted that they have availed the said loan and the same was disbursed to the seller of the property in question and the O.A. filed by the respondent-bank is supported by several loan documents, which are enclosed with the O.A. It was thus contended that in said circumstances, the respondent-Bank is entitled to recover the loan amount from the appellants. It was lastly contended that the Tribunal below has passed the order impugned in accordance with law and there is no illegality or infirmity in the order impugned, hence the same does not call for any interference by this Tribunal. It was, therefore, prayed that the appeal filed by the appellant may be dismissed with heavy costs.

Having heard the learned counsels for the parties and considering the material available on record, undisputedly, the loan was granted by the Bank to the appellants for purchase of semi constructed house situated at the property in question and the loan amount was directly paid by the Bank to the seller of the property in question at the instance of the appellants.

It is to be seen that the appellants no. 1 to 3 had purchased the property in question from one Smt. Krishna Pathak, W/o Anil Kumar Pathak vide sale deed dated 17.02.2012. Initially, one Siriya, S/o Ramphal had sold a land having area of 0.126 Acre to Nipul Goel and Ankur Agarwal vide sale deed dated 14.08.2003 with the partnership of M/s Shyamji Estate Developers, Meerut. Subsequently, the said firm through its partner Ankur Agarwal raised some construction over the Plot No. 45, which was sold in favour of Smt. Krishna Pathak vide sale deed dated 25.10.2008. Thereafter, the appellants no. 1 & 2 contacted Smt. Krishna Pathak for purchase of the said semi-constructed Plot No. 45 and taken relevant documents. Thereafter, the appellants contacted the respondent-Bank for a term loan of Rs.15.00 lacs for purchase of the said semi-constructed Plot and after getting the said property verified from the empaneled lawyer, the Bank had sanctioned and disbursed the same vide letter dated 14.02.2012 and thereafter, issued a demand draft No. 521196 dated 14.02.2012 for a sum of Rs.15.00 lacs in the name of seller Smt. Krishna Pathak. Accordingly, Smt. Krishna Pathak after receiving entire sale consideration executed the sale deed on 17.02.2012 in favour of the appellants no. 1 & 2, but the fact that M/s Shyamji Estate, Meerut through its partner Ankur Agarwal had sold the same property to Smt. Shail Goel and Smt. Poonam Goel vide sale deed dated 02.07.2007, thus it is clear that the owner of the property in question namely Ankur Agarwal had sold the property in question prior to sale in favour of Smt. Krishna Pathak, who had sold the same to the appellants. Thus it is held that Smt. Krishna Pathak had no right or title to transfer the property in question in favour of the appellants. As such it can be said that Smt. Krishna Pathak was not owner of the property in question, when the same was transferred by Smt. Pathak to the appellants. Thus the Tribunal below has rightly held that title deed pertaining to Smt. Krishna Pathak was invalid, consequently, the sale deed of the appellants also, on the basis of which the property in question was mortgaged by the appellants with Bank. Hence, the order impugned does not require to be interfered with by this Tribunal.

Apart from above, it is relevant to point out that prior to sanctioning the loan in favour of the appellants, the Bank had got the said property searched/verified from its empaneled lawyer and he had given his search report and legal opinion with regard to the property in question to the Bank. Copy of the said report and legal opinion are placed from page no. 68 to 78. The said documents show that the property in question was searched for the period from 1980 to 2011, but the counsel for the Bank failed to search out that the said property was already sold by a partner of M/s Shyamji Estate namely Shri Ankur Agarwal to Smt. Shail and Smt. Poonam in the year 2007 and due to such lapse/failure of the Bank, the appellants are suffering since long back. Hence, I deem it fit to give some relaxation in the rate of interest as awarded by the Tribunal below vide order impugned. Accordingly, the interest @ 12% p.a. as awarded by the Tribunal below vide order impugned is reduced to 8% p.a. simple from the date of filing of the original application till the date of its realization. It is made clear that the respondent-Bank shall calculate the interest @ 8% p.a. simple on the amount as decreed by the Tribunal below vide order impugned for the period from the date of filing of the O.A. till the date of payment to be made by the appellants.

So far as the contention of the appellants that the Bank is not entitled to recover its dues from the appellants, as the loan amount was directly disbursed by the Bank to the seller of the property in question namely Smt. Krishna Pathak, is concerned, the fact as narrated above clearly establishes that actually fraud was played by Ankur Agarwal, who is partner of M/s Shyamji Estate Developer, by selling the property in question to Smt. Krishna Pathak, because if the said property had already been sold by him to Smt. Shail and Smt. Poonam in the year 2007, then he ought to have not again sold the same to Smt. Pathak in the year 2008. Thus when the appellants came to know that the property in question had been sold by Smt. Pathak fraudulently, then the appellants should immediately have lodged the FIR against Smt. Pathak and filed the money recovery suit before the competent court, but instead of doing so, the appellants are contesting the present case on the ground that they are not beneficiary of the loan amount, therefore, there is no liability against them, but in the present case, such plea cannot be accepted. However, if the appellants intend, they may avail the remedy, which is permissible under the law, because in each and every sale deed, a general clause is mentioned that if the purchaser loses the property in future for any reason whatsoever due to fault of seller, he would have every right to recover his purchase price from the seller along with expenses.

In view of the discussions as held above, the order impugned is modified only to the extent of interest as awarded by the Tribunal below vide order impugned. The Tribunal below is directed to modify the Recovery Certificate accordingly. The appeal filed by the appellants is accordingly disposed off.

A copy of this order be forwarded to the parties as well as the DRT concerned and be also uploaded on the e-DRT Portal.