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Judgment
Ranjit Singh, J
The O.A. filed by the respondent Bank stands allowed for recovery of Rs. 1,58,93,629/-. Respondents Nos. 2 and 3 have been held jointly and severally liable for this recovery. The Bank is also held entitled to recover costs, expenses and interest @ 14% simple from the date of filing to the O.A. till realization. The Tribunal has further directed that in the event of respondent Nos. 2 and 3 failing to deposit the said amount within 30 days, then the Bank would be entitled to sell the property bearing No. LA Bhat, Village Rangari, Tehsil Kullu, District Manali (HP), besides the sale of 30% of the property bearing No. 3-B, Pusa Road, Old Rajinder Nagar, New Delhi for realizing the dues of the Bank. The appellant, who is neither borrower nor guarantor but third-party intervenor, is aggrieved against that part of the order holding the Bank entitled to sell 30% of the property at 3-B, Pusa Road, New Delhi by pleading that it had purchased this property as it was not under any attachment when it purchased the same.
To take note of the factual matrix, it is noticed that respondent No. 2 being proprietor of M/s. Shree Ambica Carrier had availed certain credit facilities to which respondent No. 3 was guarantor. The Bank had sanctioned a commercial vehicle loan for a sum of Rs. 28 lac for the purchase of Tata Make Trucks of 3516 Model on 28.7,2007 to respondent No. 2. The loan amount was repayable in 45 monthly instalments of Rs. 80,441/- each. Respondent No. 2 had executed a demand promissory note and agreement for vehicle loan and hypothecation besides the irrevocable general power of attorney, etc. on 30.7.2007. Two more vehicles loans were also sanctioned on 28.12.2007 for a sum of Rs. 30 lac and similar documents were executed by respondent No. 2 on 28.12.2007.
The Bank has alleged that after availing this facility, the respondent borrower siphoned off the money, which they had taken for the purpose of building the body of the vehicles, and diverted and utilized the same for construction of a hotel at Manali. On account of non-payment, the Bank made repeated requests to the respondent and they ultimately surrendered the vehicles which were then got valuated and sold for a sum of Rs. 49,14,336/-.
At the time of surrender of vehicles it was noticed that M/s. Thermoking India Pvt. Ltd. (respondent No. 4) was given an advance of Rs. 12.75 lac on the request of respondent No. 2 for the purpose of providing refrigeration system in the vehicles. The same amount was not provided by respondent No. 4 and hence the Bank was making prayer for refund of this amount from respondent No. 4.
In response to the notice, respondent borrower filed reply pleading that due to agitation by general public in Gujarat and Madhya Pradesh in 2007 they were not allowed to carry meant to pass through these States and so their business was struck. The borrower claimed to have sought permission from the Bank for converting the said vehicles into some other general vehicles so that they could earn profit and clear instalments. The borrower would plead that they had given three options to the Bank which were, surrender of vehicles, conversion of vehicles into semi flat trailers and conversion into tankers and for rescheduling of the loan, but Bank did nothing. The respondent borrower would also plead that total cost of the vehicle was Rs. 2.28 crore at the time of taking possession by the Bank but these vehicles have been sold at throw-away prices. It is urged even if vehicles were sold at depreciated value, these vehicles still would not have been for an amount less than Rs. 2.05 crore. The respondent borrower thus pleaded that Bank had caused them loss and they accordingly filed a counter-claim for an amount of Rs. 29,96,910/- claiming with interest @12% from 1.10.2008 till realization.
Further narration of the facts may not be called for in view of the limited relief claimed in the present appeal. The appellant being a third-party intervenor has not raised any contest on merit of the findings returned by the Tribunal below so far as right to recover the amount by the Bank is concerned. The grievance of the appellant is limited to the extent whereby the Tribunal has allowed the sale of 30% of property bearing No. 3-B, Pusa Road, Old Rajinder Nagar, New Delhi.
Since the appellant is neither the borrower nor the mortgager and is third party purchaser, he may not be called upon to deposit amount to maintain the appeal. The application for waiver is accordingly disposed of.
The plea by the Counsel is that this property was not the mortgaged property. Initially, this property was attached but subsequently the attachment order was withdrawn. As per the Counsel, when the appellant purchased this property, it was not under any attachment and hence the finding returned by the Tribunal below allowing the sale of 30% of the property cannot be sustained.
Plea on similar lines was raised by the appellant before the Tribunal below The appellant had filed an application as an intervenor claiming that it had purchased the property after the property was released from the attachment. The Tribunal, after hearing the submissions, perused the order dated 1.2.2010 vide which the order appointing the Receiver in regard to this property had been withdrawn. The Bank was directed to keep under its possession 30% portion of the said property which was held by respondent No. 3 till further arrangement was made by respondent No. 2 to provide security. The Counsel for the appellant would contend that respondent No. 2 had provided security by deposit of title deed of the property bearing No. LA Bhat, Village Rangari, Tehsil Kullu, District Manali (HP), which statedly was having value of Rs. 8 to 9 crore. The Counsel for the appellant would refer to this order whereby attachment of 30% share of the property at Pusa Road, New Delhi was made subject to the condition of deposit of title deed of the property at Kullu, Distt. Manali. The Counsel would contend that respondent No. 2 had deposited the title deed of the property within the stipulated period, but the Tribunal below while ignoring this vital aspect has allowed the sale of 30% share of this properly which, therefore, cannot be sustained.
The Tribunal below in its order indeed has referred to that part of the order dated 1.2.2010 where this condition in regard to the attachment of 30% of share was made subject to deposit of the title deed of the property at Kullu, Distt. Manali. While allowing the sale of 30% share of the property at Pusa Road, New Delhi the Tribunal has found that this part of the share of the property had never been released thus the Bank was entitled to recover the dues from the said portion of the property.
To contest this finding of the Tribunal below, the Counsel for the appellant has made elaborate reference to the order dated 1.2.2010. The Tribunal below in this order had recorded that on 30.3.2009 the Bank had made an application for appointment of Mr. Vinod Bharani, the Regional Collection Manager as Receiver to remain symbolically in possession over the jointly held occupied and owned property situated at 3-B, Pusa Road, Old Rajinder Nagar, New Delhi and so also the property at Kullu, Distt. Manali. On 4.6.2009, Mr. Bharani was appointed as Receiver of the two properties. On 25.8.2009, some members of Palta family had approached the Tribunal for setting aside and quashing the order appointing the Receiver. The Tribunal below took note of the fact that Pusa Road, New Delhi property was not solely owned by respondent No. 3, but was a joint property of respondent No. 2 with others. The Bank also agreed that this property was not a mortgaged property respondent No. 2 made a statement that the property at Kullu, Distt. Manali was his property which was having value of Rs. 8 to 9 crore and that he intended to create a security interest in the said property by depositing before the Tribunal the original titled deed relating to the property after clearing all the dues of the then secured creditor LIC. Respondent No. 2 had also prayed for release of Pusa Road, New Delhi property out of which only 30% was owned by respondent No. 3. On the basis of these submissions and material on record, the Tribunal, on 1.2.2010, passed the following order:
"This Tribunal has this day, for the above reasons recalled its order passed on Thursday, June 4, 2009 in the Bank's claim case by withdrawing its appointed learned Receiver over the house being bearing No. 3-B, Pusa Road, Old Rajinder Nagar, New Delhi-110005 and intends to constantly keep under its possession the thirty per cent portion as held by the defendant No. 2 till the further arrangement is made by the defendant No. 1. Mr. S.K. Garg, the learned Advocate has with the assistance of the present Regional Collecting Manager stated before this Tribunal of the thirty per cent property as owned by defendant No. 2 shall be approximately rupees two crores in the case of its sale."
Thus, the order dated 4.6.2009 appointing Receiver for this property at Pusa Road, New Delhi was withdrawn and it was only in regard to 30% portion of the property was kept under attachment, that too, till the time further arrangement was made by respondent No. 2 (defendant No. 1) in regard to the property at Kullu, Distt. Manali. Respondent No. 2 was to get the title deed of the property released from LIC and was given 15 days' time to deposit the same with the Bank. The relevant part of the order dated 1.2.2010 is as under:
"All the above shall be reduced to nothing if Shri Deepak Palta has been able within a period of fifteen days from date to release the above property from LIC and deposit before itself the original title deed as the security made during the course of judicial proceeding."
The Counsel for the appellant would refer to the material on record of this appeal showing that title deed of the property at Kullu, Distt. Manali was deposited with the Bank on 22.2.2010. The title deed of the property at Kullu, Distt. Manali accordingly stood deposited. The effect of the same would be that the charge created on 30% part of Pusa Road, New Delhi property also stood released, this being the condition for keeping thirty per cent of the property under attachment. The Counsel accordingly would contend that the Tribunal below was not justified in observing that this part of the property at Pusa Road, New Delhi did not stand released.
The Counsel for the respondent Bank, however, would contest the line of submissions pursued by the Counsel for the appellant. He would in this regard refer to the order dated 4.6.2009 whereby this property was attached. The Counsel has also made reference to some other orders placed on record subsequent to the filing of the reply in the appeal. The submission made by the Counsel primarily is that respondent No. 2 was required to create a mortgage in respect of the property at Kullu, Distt. Manali, which he never did and hence, the Tribunal below was justified in holding that 30% of the property at Pusa Road, New Delhi was never released from the charge. The Counsel, however, concedes that respondent No. 2 had deposited the title deed of the property at Kullu, Distt. Manali, but would submit that he did not create mortgage in respect of the said property. As per the Counsel, respondent No. 2 had filed an application raising objection on the ground that there was no valid mortgage created in respect of the property at Kullu, Distt. Manali.
I am unable to appreciate the submission made by the Counsel for the Bank. Once the Bank is admitting deposit of the title deed by respondent No. 2 in respect of property at Kullu, Distt. Manali, it may not be fair for the Bank to plead that respondent No. 2 had not created any valid mortgage in respect of this property. In fact, this is one of the properties which is referred to in the impugned order which can be sold by the Bank to realize its dues. Merely because respondent No. 2 had filed an application to plead that there was no valid mortgage, this plea should not find support from the Bank to lose its charge over the mortgaged property at Kullu, Distt. Manali, or to claim a charge on the property at Pusa Road, New Delhi which was subject to the condition imposed by the Tribunal in regard to the property at Kullu, Distt. Manali. The Bank, in my view, by so pleading, is treading a dangerous path which may weaken its case over the mortgaged property at Kullu, Manali.
If the order dated 1.2.2010 is minutely perused, it would show that there was no direction to respondent No. 2 to create mortgage in respect of the property at Kullu, Distt. Manali. What all the Tribunal had directed respondent No. 2 was to deposit the original title deed as a security after its release from the LIC where this document had been deposited as security. Once it is conceded that respondent No. 2 had deposited the title deed of the property at Kullu, Distt Manali, the condition imposed in the order dated 1.2.2010 stood satisfied. The charge over the property at Pusa Road, New Delhi was only till such arrangement was made.
The service has been effected on the respondents 2 and 3, but none has chosen to appear on their behalf though respondent No. 2 had appeared in person on 26.5.2015. It may also require a notice that respondent No. 2 had filed a written statement that the property at Kullu, Distt. Manali was his property. He himself had given the value of the said property to be Rs. 8 to 9 crore, and had then volunteered to crate security interest in that property by means of deposit of the title deed relating to the said property after clearing the dues of LIC where this property had been given as security. Respondent No. 2 had himself voluntarily pleaded for release of the property at Pusa Road. In this background, respondent Nos. 2 and 3 cannot fairly contest the claim of the appellant once respondent No. 2 had volunteered to do an act which he ultimately did by deposit of the title deed of the property at Kullu, Distt. Manali. The fact that the Bank had been permitted to realize the amount by selling this property at Kullu, Distt. Manali, would show that security interest created in this property by respondent No. 2 stands recognized. In this background, to say that the property in the hands of the appellant was not released from attachment would certainly amount to doing injustice to the appellant. The appellant apparently is a bona fide purchaser of this property which he did after satisfying himself that the same stood released from the attachment. If the Bank had any intention to contest, it ought to have filed appeal against the order dated 1.2.2010. Having accepted this order, the Bank cannot now plead for claiming charge over the property at Pusa Road. The impugned order passed by the Tribunal holding the Bank entitled to sell 30% of the property at 3-B, Pusa Road, Old Rajinder Nagar, New Delhi cannot be sustained and is set aside. The remaining part of the order passed by the Tribunal as direction to recover the amount in the manner as given shall stand intact without any effect whatsoever.
The appeal is accordingly allowed in above terms.