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Judgment
The appellant Bank had filed an Original Application(O.A.) under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993('RDDBFI Act' in short) against its borrowers, respondents 2 and 3 herein, for recovery of Rs.21,30,389.75 which it claimed to have lent to them against hypothecation of one 'Mercedes Benz 350 CGI'No.DL-3CU -1111 (hereinafter to be referred as 'the hypothecated car') in the year 2016.
In the O.A. filed in DRT-II An ex parte direction for the appointment a receiver to take custody of the hypothecated car was also prayed for and which was allowed by the learned DRT vide its ex parte order dated 02.03.2017. The receiver appointed by the DRT took custody of the hypothecated car from respondent no.3 Ms. Dimple Kapoor, on 23.06.2017. Since respondent no.3 was claiming that she had purchased the hypothecated car from one Mukesh in January, 2017 she had got herself impleaded in the appellant Bank's O.A. as defendant No.3 and had also sought release of the hypothecated car by filing two miscellaneous applications but that relief was not granted to her at the interim stage of the proceedings by the learned DRT.
The borrow-defendants did not contest the O.A. and respondent no.3 herein, who had got herself impleaded as a defendant in the O.A., also did not file any written statement. The defence of the three defendants was struck off by the DRT vide order dated 09.10.2017.
Surprisingly, the learned Presiding Officer of the DRT permitted respondent no.3 herein to adduce evidence even when she had failed to file her written statement and her defence stood struck off. Though subsequently a statement was made before the DRT by her counsel that her impleadment application may be treated as her written statement but that prayer does not appear to have been accepted which is evident from the fact that in the impugned final order, which is now under challenge against the relief granted to respondent no.3, it was recorded that no written statement was filed by the newly added defendant no.3 Ms. Dimple Kapoor though she had adduced evidence.
The learned DRT disposed of the O.A. vide impugned order dated 27. 06.2018 and while allowing the relief of recovery of dues to the applicant Bank the learned Presiding Officer directed the Bank to release the hypothecated car to respondent no.3 herein Ms. Dimple Kapooraccepting her to be a bona fide purchaser of that car. It is that direction given to the appellant Bank which has now been impugned in this appeal by the Bank.
The impugned order of the DRT is re-produced below:-
"ICICI Bank Limited (hereinafter referred to as the applicant bank) has filed the present Original Application (for short, the O.A.) for recovery of a sum of Rs. 21,30,389.75 (rupees twenty one lac thirty thousand three hundred eight nine and paisa seventy five only) alongwith interest @ 13.01% per annum from the date of filing of the OA till realization from the Defendants jointly and severally.
Concisely, the case of the applicant bank, as is made out from the contents of the O.A. is as under:
On 30th June, 2016, the Defendants had approached the applicant a request to grant loan of Rs. 20 lacs for purchasing a vehicle being " Mercedes Benz/E 350 CGI" bearing Registration No. DL-3CU-1111 (hereinafter referred to as the vehicle in question) under its loan-cum-hypothecation scheme. Acceding to their request, the applicant bank disbursed an amount of Rs. 19,98,550/- to Defendant no. 1 on 30.06.2016 after deducing the processing fees and stamp duty charges. The aforesaid loan was agreed to be repaid in 36 equal monthly instalments of Rs. 67,397/- alongwith interest @ 13.01% per annum and in default to pay penal interest % 24% per annum. To avail the said loan, the Defendants had entered into credit facility application alongwith terms and conditions, an unattested deed of hypothecation and irrevocable power of attorney with the applicant bank on the 30.06.2016. Pursuant to the disbursement of the loan amount by the applicant bank, vehicle in question was delivered to the Defendants who hypothecated the same in the name of the applicant bank. It is further the case of the applicant bank that after availing the said loan and despite undertaking given by them, the Defendants failed to adhere to the financial discipline in the repayment of the loan either towards principal of interest of charges thereon. It is further the case of the applicant bank that even despite receipt of the notice dated 10.01.2017 the Defendants have neither cared to reply thereof nor has made any effort to repay the outstanding amount and also to handover the peaceful possession of the vehicle in question to the applicant bank. The applicant bank further pleads that as per the account maintained by it, the Defendants are liable to pay a sum of Rs. 21,30,389.75 alongwith future interest @ 13.01.% per annum from the date of filing of the present OA till realization. Hence, this OA.
Pursuant to the notices issued, Defendants no. 1 & 2 appeared through their counsel on 9th May, 2017 and they were directed to file their written statement despite availing numerous opportunities and, ultimately, their right to file the same was closed vide order dated 9th October, 2017.
It is pertinent to mention here that vide order dated 28th November, 2017 passed in application bearing IA no. 1152 of 2017 under Order I Rule 10 CPC, Smt. Dimple Kapoor was impleaded as defendant No. 32. Though she has not filed any written statement, but has filed her evidence affidavit and exhibited some documents.
In order to substantiate its case, the applicant bank has filed evidence affidavit of AW-1 Mr. ArunChaudhary, its Authorized Representative, who has corroborated the case of the applicant bank as pleaded in the OA. The applicant bank has also exhibited documents Exs. AW-1/1 to Aw -1/9 in support of its case.On the other hand, though defendant no. 3 has not filed any written statement, but has filed her evidence affidavit and exhibited documents as DW-3/D and DW-3/E and has also marked documents as DW-3/B to DW-3/d and DW-3/F.
I have head the counsel for the applicant bank and contesting defendant no. 3 and have gone through the oral as well as documentary evidence on record.
From the evidence affidavit of Mr. ArunChaudhary AW-1, It is evident that he is duly authorized and empowered by the applicant bank to make deposition on its behalf and in this regard the Power of Attorney in his favour is Ex. AW-1/1. He has further deposed that on the request of the defendants no. 1 & 2 the applicant bank had granted them a loan of Rs. 20 lacs under loan-cum-hypothecation scheme for purchase of the vehicle in question. Mr. ArunChaudhary AW-1 has further testified that the said defendants in order to avail the said loan had executed credit facility application Ex. AW-1/2 unattested deed of hypothecation Ex. AW-1/3 and irrevocable power of attorney Ex. AW-1/4 in favour of the applicant bank. He has also stated that pursuant to the request of the said defendants, the applicant bank had disbursed a sum of Rs. 19,98,550/- on 30.06.2016 to defendant no. 1, after deducting the processing fees and stamp duty charges and further that the defendants had agreed to repay the said loan in 36 equal monthly instalments of Rs. 67,397/- alongwith interest @ 13.01% and also secured the said loan by hypothecating the vehicle in question with the applicant bank. It is also evident from his deposition that pursuant to the disbursement of the said loan amount, vehicle in question was delivered to the defendant no. 1 who had hypothecated the same with the applicant bank. This witness has also stated that after availing the said vehicle loan, defendants no. 1 & 2 failed to adhere to the financial discipline in the repayment of the loan even despite of service of notice Ex. AW-1/5 upon them vide postal receipt Ex. AW-1/6. According to Mr. ArunChaudhary AW-1, despite undertaking given by the defendants no. 1 & 2, they defaulted in repayment of the monthly instalments and as per the Statement of Account Ex. AW/-/17, they are liable to pay a sum of Rs. 21,30,389.75 lacsalongwith future interest and other charges. Mr. ArunChaudhary AW-1 has further stated that earlier in the month of September, 2010 defendant no. 1 had obtained loan of Rs. 40 lacs against hypothecation of the car in question and the account in that respect was closed by making payment and the said witness has proved Statement of Account Ex. AW-1/8 of that account and further that in the month of March, 2014 defendants no. 1 & 2 took another loan of Rs. 10 Lacs against security of the vehicle in question and that account was also closed by making payment by them and the applicant bank had issued NOC in respect of that loan. He has further testified that again in the month of June, 2016 the said defendants obtained loan of Rs. 20 lacs against security of the vehicle in question with an agreement to repay the same in 36 equal monthly instalments of Rs. 67,397/- but since the very inception they defaulted and the ECS/cheques issued by them were dishonoured and they paid only Rs. 1,85,853/- towards the principal and the balance is still outstanding as on June 23, 2017. It is also evident from his deposition that the applicant bank terminated and recalled the loan by issuing a notice to defendants no. 1 & 2, but even despite that they did not make he payment. The said witness has further vouched that with a great difficulty the Receiver has taken possession of the vehicle in question and the report of the Receiver is Ex. AW-1/9. He has further stated that there is no privity of contract between the applicant bank and defendant no. 3 Smt. Dimple Kapoor, who is neither a borrower nor guarantor in this case. According to him, the total amount payable is Rs. 23,11,272.46 by defendants no. 1 & 2 to the applicant bank as on June 28, 2017.
Defendants no. 1 & 2, who are the borrower and co-borrowers, have not raised any contest to the claim of the applicant bank. Since there is no rebuttal to the evidence led by the applicant bank as defendants no. 1 & 2 have not chosen to resist the claim of the applicant bank, the evidence led by it has gone unchallenged and un-rebutted. Hence, the case of the applicant bank stands fully established against defendants no. 1 & 2. More so, the case of the applicant bank is entirely based on the documents executed by the said defendants in its favour during the course of banking business and there is no reason to disbelieve the same unless and until there is evidence to doubt their genuineness.
Only defendant no. 3. Who claims to be a bonafide purchaser of the vehicle in question from defendant no. 1 & 2, has raised objections to the taking of physical possession of the vehicle in question. She has filed her evidence affidavit and has relied upon the documents viz. General information of the Asset DW-3/A, her husband Mr. NitinKapoor's Statement of Account Mark DW-3/B, Letters written by the applicant bank to the Regional Transport office Mark DW-3/C & DW-3/D, Copy of the Registration Certificate Ex. DW-3/E and Certificate of Insurance Policy Mark DW-3/F.
Heard both sides.
Now, the points for determination are:
(i) Whether the applicant bank is entitled for recovery of sum of Rs. 21,30,389.75?
(ii) Whether the claim of Smt. Dimple Kapoor in respect of the hypothecated vehicle is valid against the applicant bank?
Point No. (i)
In order to prove its case, the bank examined Sh. ArunChaudhary, AW1 and exhibited his power of attorney AW1/1 and the evidence of AW 1 further reveals that defendant no. 1 & 2 approached for a loan of Rs. 20 lacs for purchase of car and the applicant bank disbursed Rs. 19,98,580/- to defendant no. 1 after deduction of processing fee and stamp duty at request of defendant no. 1 & 2 and the loan is repayable in 36 EMIs of Rs. 67,397/- and the loan is secured against the vehicle "Mercedes Benz/E 350 CGI" bearing Registration NO. DL-3CU-1111 financed by the applicant bank and defendant no. 1 & 2 executed credit facility application vide exhibit AW1/2 and unattested deed of hypothecation vide exhibit AW-1/3 and irrevocable power of attorney vide exhibit AW -1/4 in favour of the applicant bank and in pursuance of the disbursement of the loan "Mercedes Benz/E 350 CGI" was delivered to defendant no. 1 & 2 and the said vehicle was registered with Registration No. DL-3CU-1111 and the same was got hypothecated in the name of the applicant bank and defendant no. 1 & 2 are liable to pay the debt jointly and severally and after availing the loan, defendant no. 1 & 2 failed to adhere the financial discipline and failed to make the vehicle available for inspection and further defaulted in payment of the instalments. The applicant bank is constrained to send recall notice recalling the loan directing defendant no. 1 & 2 to pay Rs. 21,30,389.75. Despite receipt of notice dated 10.01.2017 defendant no. 1 & 2 failed to repay the loan and copy of postal receipts exhibit AW 1/5 & AW 1/6 and as per the statement of account the OA amount is due vide exhibit AW1/7 & AW1/8. The loan amount is due and defendant no. 1 & 2 did not pay the amount, the applicant bank approached the Tribunal for appointment of the receiver and applicant bank took over the possession of the vehicle from 3rd parte Sh. NitinKapoor and receiver report is exhibit AW1/9.
As against the same, the 3rd party who was impleaded as defendant no. 3 who claimed the vehicle has been purchased by her. She has filed her evidence affidavit and has relied upon the documents viz. General Information of the Asset DW-3/A, her husband Mr. NitinKapoor's Statement of Account Mark DW-3/B, Letters written by the applicant bank to the Regional Transport Office Mark DW-3/C & DW-3/D, Copy of the Registration Certificate Ex. Dw-3/E and Certificate of Insurance Policy mark DW-3/F and applicant bank taking possession of the vehicle on 23.06.2017 is illegal and the vehicle is liable to be released to her. So far as the case against defendant no. 1 & 2 are concerned, they did not contest the matter and there is no defence of defendant no. 1 & 2 to oppose the applicant bank and exhibit AW1/1 to AW1/9 established the claim of the applicant bank for recovery of Rs. 21,30389.75 from the defendants. So far as the defendant no. 1 & 2 are concerned, point no. (i) is answered in favour of the applicant bank.
The applicant bank claimed pendentalite and future interest @13.01% p.a. So far the interest payment of the subsequent interest is concerned, as per the ratio of law laid down by the Hon'ble Apex Court in the case of Central Bank of India VsRavindra and other, AIR 2001 SC 3095 and as per the provisions of Section 19(20) of the RDDBFI Act and also in the interest of justice, future interest is allowed @ 12% per annum simple.
Point No. (ii)
The evidence of defendant no. 3 vide exhibit DW3/W reveals that the 3rd defendant transferred the amount of Rs. 7.00 lacs through RTGS to M/s Amba Merchants Pvt. Ltd. on 07.07.2016. ICICI bank gave a letter of No Objection wherein it is mentioned that vehicle "Mercedes Benz/E 350 CGI" bearing Registration No. DL-3C-1111 the hypothecation of ICICI Bank was removed for the above said vehicle and they further confirmed for loan agreement with M/s Amba Merchants Pvt. Ltd. to whom the financed vehicle " Mercedes Benz/E 350 CGI" bearing Registration No. DL-3CU-1111 is terminated and they request to remove the hypothecation from the insurance book alongwith notice of termination of hypothecation from the insurance book alongwith notice of termination of hypothecation. Again such letter issued by the ICICI bank on May 03, 2017 also as defendant no. 3 failed to get the vehicle transferred in her name during the first NOC dated July 7, 2016. It is seems that subsequent the vehicle was transferred to Smt. Dimple Kapoor defendant no. 3 vide exhibit DW3/E and certificate of insurance vide exhibit DW3/F.
Admittedly, the applicant bank having issued exhibit DW3/C and permitted to transfer of the vehicle of 3rd party is stopped and now contending that it is entitled for the seizer of the vehicle. The contention of the applicant bank is that the defendant No. 1 & 2 again took another loan in June, 2016 under the used car loan cum hypothecation scheme against the security of the vehicle namely
"Mercedes Benz/E 350 CGI" bearing Registration No. DL-3CU-1111 under loan account no. LUDEL00034541058. It is not understood as to how the applicant bank gave no objections issued by the OA bank. The 3rd party purchased the vehicle and defendant no. 3 is a banfide purchaser without knowledge of the alleged loan and hypothecation and as the bank itself give no objections it has to suffer for its negligence and the applicant bank cannot contend that it is under hypothecation from June, 2016 as well as May 3, 2017 successively. Due to the negligence of the bank, the 3rd Party should not suffer, as such I am of the considered opinion that defendant no. 3 is a bonafide purchaser of the vehicle "Mercedes Benz/E350 CGI" bearing Registration No. DL-3CU-1111 without notice of the alleged hypothecation as the bank itself issued NOC. The applicant bank shall release the vehicle to defendant no. 3 as the bank lost its right of hypothecation on giving NOC dated July, 7, 2016 as well as May 3, 2017 respectively, accordingly, this point no. (ii) is answered.
In the result:
(i) The OA is allowed with costs. The applicant is entailed to recover a total amount of Rs. 21,30,389.75 (Rupees twenty one lac thirty thousand three hundred eighty nine and paisa seventy five only) alongwith interest @12% p.a. simple from the date of filing of the present OA till realization from the defendants jointly and severally.
(ii) Since, the defendant no. 3 is bonafide purchaser of the vehicle
"Mercedes Benz/E 350 CGI" bearing Registration No. DL-3CU-1111 the applicant bank is directed to release the said vehicle to defendant no. 3.
(iii) The Recovery Certificate be issued forthwith and be sent to Recovery Officers, Debts Recovery Tribunal -II, Delhi in respect of defendant No. 1 & 2.
(iv) The Registry of this Tribunal is hereby directed to issue the free copy of this order and send to the both parties.
(v) Parties are directed to appear before the Ld. Recovery Officer, DRT-II, Delhi on 27th August, 2018.
(vi) File be consigned to records."(highlighting is mine)
Appearing for the respondent no.3 Mr. AnandAggarwal, learned advocate submitted that there is no infirmity in the direction given by the DRT to the appellant Bank since undisputedly the Bank had issued one letter on 07.07.2016 and then again on 03.05.2017 to the Registering Authority(RTO) to the effect that its lien over the hypothecated car stood terminated with the payment of its dues by its borrower to whom loan was given against the hypothecation of the car in question. Therefore, this respondent bona fide believing that the hypothecated car was free from any charge/lien had purchased the same and rightly the DRT has directed the bank to release the car in favour of this respondent.
I have considered the submissions made by the counsel for the appellant Bank and counsel for respondent no.3 Ms. Dimple Kapoor and perused the record of the DRT. This appeal deserves to be allowed without losing much breath in view of the legal position settled by the Hon'ble Supreme Court that no relief can be granted by the Court if the same is not pleaded and claimed by the concerned party, like respondent no.1 herein, and also if there are no pleadings for the relief granted by the Court.Hon'ble Supreme Court had said so in its judgment dated 23 September, 2008 in CIVIL APPEAL NOS.5798-5799 OF 2008, "BachhajNahar Vs.NilimaMandal&Anr."Relevant paras from this judgment are being re-produced below:-
"2. Respondents 1 and 2 (plaintiffs) filed a suit for declaration, possession and injunction (Title suit no.133/1982 on the file of SadarMunsiff, Purnia) against the appellant (first defendant) and Sujash Kumar Ghosh (second defendant) in regard to the suit property. The suit property is a strip of land measuring East to West : 72 feet and North to South : 1'3" on the Western side and 10" on the Eastern side described in Schedule `B' to the plaint. Plaintiffs claimed that the suit property was a part of the `A' schedule property purchased by them under sale deed dated 29.12.1962. The reliefs sought in the said suit were :
(i) declarations that (a) the plaintiffs are the absolute owners in possession of the suit property; (b) the defendants do not have any right, title or interest or possession in respect of suit property; and (c) the first defendant had illegally encroached and started construction in the suit property;
(ii) a direction to first defendant to deliver possession of the suit property to plaintiffs after demolishing the construction over the same; and
(iii) a permanent injunction restraining first defendant from interfering with the suit property.
The first defendant resisted the suit contending that he had purchased the property to the South of plaintiff's property from second defendant under sale deed dated 5.5.1982 and the suit property actually formed part of his property. He contended that the plaintiffs had no right, title or interest in the suit property.
The trial court framed the following issues :
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any cause of action tofile the suit as against these defendants?
(iii) Is the suit barred by limitation and also on the principle of waiver estoppel and acquiescence?
(iv) Whether the description of the suit land is vague?
(v) Whether the suit land is part and parcel of land of the plaintiff purchased through registered kewala or the suit land in exclusive possession of Ishan Chand Ghosh, and after his death of second defendant, and after purchase of first defendant.
(vi) Has first defendant encroached any portion of the suit land?
(vii) Whether the plaintiffs got title over the suit land? Or were they using the suit land under express permission of the late Ishan Chand Ghosh and his son?
(viii) To what relief or reliefs, plaintiffs are entitled?
After considering the evidence, the trial court by judgment and decree dated 31.8.1987 decreed the suit in part. It held that the suit property was part of plaintiffs' property and that first defendant had encroached over a part of it to an extent of 15 sq. ft. The trial court held that as first defendant had already put up his construction over the encroached portion and was using it, instead of directing him to deliver back possession thereof, he should pay Rs.100/- as the price of the encroached portion, to the plaintiffs. Feeling aggrieved, the first defendant filed an appeal. Plaintiffs filed cross-objections. The first appellate court held that the plaintiffs had failed to prove that the suit property was part of their property purchased under sale deed dated 29.12.1962 or that first defendant had encroached upon any portion of plaintiffs' property; and that the evidence adduced by plaintiffs established that the Gali (suit property) was earlier owned by Ishan Chand Ghosh and his sons and plaintiffs were only using the said Gali with their express permission. The first appellate court therefore allowed the appeal filed by first defendant and dismissed the cross-objections filed by the plaintiffs by judgment dated 12. 1.1989. As a consequence the suit of the plaintiffs was dismissed.
Feeling aggrieved, the plaintiffs filed a second appeal before the High Court. The High Court by judgment dated 14.5.2004 allowed the second appeal. The High Court held that the plaintiffs had failed to make out title to the suit property. It however held that plaintiffs had made out a case for grant of relief based on easementaryright of passage, in respect of the suit property, as they had claimed in the plaint that they and their vendor had been using the suit property, and the first defendant and DW6 had admitted such user. The High Court was of the view that the case based on an easementary right could be considered even in the absence of any pleading or issue relating to an easementary right, as the evidence available was sufficient to make out easementary right over the suit property. The High Court therefore granted a permanent injunction restraining the first defendant from interfering with the plaintiffs' use and enjoyment of the `right of passage' over the suit property (as also of the persons living on the northern side of the suit property). The High Court also observed that if there was any encroachment over the said passage by the first defendant, that will have to be got removed by the "process of law". The High Court also issued a permanent injunction restraining the plaintiffs from encroaching upon the suit property (passage) till the plaintiffs got a declaration of their title over the suit property by a competent court. The first defendant sought review of the said judgment. The review petition was dismissed by the High Court by order dated 9.12.2004.
The said judgment and order on review application, of the High Court, are challenged by the first defendant in these appeals by special leave. The Appellant contends that neither in law, nor on facts, the High Court could have granted the aforesaid reliefs.
The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are :
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.
(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint........................................................................................................."
........................The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. BishunNarain Inter College [AIR 1987 SC 1242]:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it..................................................................................
The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. ..........
"....................The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. BishunNarain Inter College [AIR 1987 SC 1242]:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it........................................................................................
The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right.."(emphasis supplied)
Same view was taken by the Hon'ble Supreme Court in "M/sJ.P.Builders&AnrvsA.RamadasRao&Anr"decided on 22 November, 2010(CIVIL APPEALNOs. 9821-9822 OF 2010).
Auseful reference can also be made to the following observations made by the Hon'ble Supreme Court in "Bharat AmratlalKothari vs DosukhanSamadkhan Sindhi &Ors", CRIMINAL APPEAL NO. 2020 of 2009, decided on on 4 November, 2009" :-
"14. The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Article 226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed by the petitioner. Though the court has very vide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner. In Krishna Priya vs. University of Lucknow [(1984) 1 SCC 307], overlooking the rule relating to grant of admission to Postgraduate course in medical college, the High Court in the exercise of powers under Article 226 of the Constitution directed the Medical Council to grant provisional admission to the petitioner. This Court set aside the order passed by the High Court observing that "in his own petition in the High Court, the respondent has merely prayed for a writ directing the State or the College to consider his case for admission yet the High Court went a step further and straightway issued a writ of mandamus directing the College to admit him to M.S. course and thus granted relief to the respondent which he himself never prayed for and could not have been prayed for". Again, in Om Prakash vs. Ram Kumar [(1991) 1 SCC 441], this Court observed, "A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute"..................................................."
Same view was taken by the Apex Court in "Krishna PriyaGangulyEtcvs University OfLucknow&Ors. Etc" ,1984 AIR 186, 1984 SCR (1) 302. The relevant para from this judgment is also being re-produced below:-
"The High Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution. We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for."
Thus, the impugned order of the DRTin the present case being in the teeth of these views of the Apex Court cannot stand even for a moment and has to go. When respondent no.3 Dimple Kapoor herself had decided not to file her written statement even after her impleadment in the O.A. it is quite astonishing how could the learned Presiding Officer of DRT could, firstly, allow her to lead evidence and then to look into her evidence and thendirect delivery of the Mercedes Benz car to her by the appellant Bank holding that she was a bona fide purchaser of the hypothecated car. What was the material before the DRT to come to the conclusion that respondent Dimple Kapoor was a bona fidebuyer of the hypothecated car - none. Nothing had stopped this respondent to come out with her written statement before the DRT and plead necessary facts which according to her entitled her to get the relief which the DRT actually gave her without any pleading. In view of this situation I need not go into the submission raised on behalf of the appellant Bank by its counsel that, in fact, even if this defendant Dimple Kapoorin the O.A. had filed a written statement she could not have claimed the relief which she has got from the DRT since such a relief could be claimed in Bank's O.A. only by way of a counter claim after paying court fee and counter claim could be raised only if the Bank had made any claim against her and the Bank had not claimed any relief against her.
This appeal accordingly is allowed and the impugned order of DRT is set aside but only to the extent it directs the appellant Bank to return the hypothecated Mercedes Benz car to respondent no.3 herein Ms. Dimple Kapoor. This order will, however, not be a hurdle in her way in case she is advised any other appropriate remedy to pursue for the custody of the Mercedes Benz car.
Record of DRT be sent back with a copy of this order.