Jayasree Paul vs Union Bank of India

Anil Kumar Srivastava, Chairperson

THE APPELLATE TRIBUNAL :

The instant appeal is preferred by the Appellant against the order dated 24th February, 2022, passed by the Learned Debts Recovery Tribunal-III, Kolkata in S.A. 131 of 2022 wherein Respondents was directed to file opposition and at that stage Learned Counsel for the Appellant prayed for an interim relief which was refused by the Learned DRT.

As per the pleadings of the parties, the property in dispute belongs to one Tarit Mohan Paul, who was the grandfather of the Appellant , who died intestate on 12th February, 1985 leaving behind his wife, Bidyut Paul who died on 23rd March, 2021, Mrinmoy Paul, father of the Appellant, who died on 5th May, 2019 and two daughters. Learned Counsel for the Appellant submits that he has filed SARFAESI Application on the ground that prior to fixation of the Possession Notice he had no knowledge of any proceedings being pending before the Bank or any transaction with the Bank. Hence, Appellant has a right of notice to be served before the Bank proceeds against the property wherein the Appellant has a share after the death of her father.

None is present for the Respondents.

I have gone through the record as well as heard the Learned 4. At the very outset, it would be pertinent to mention that Applicant has not come with clean hands before the Learned DRT and the SARFAESI Application is filed by concealing the facts. It is settled principle of law that one who seeks equity must do equity. Further a litigant should come with clean hands before the Tribunal while filing SARFAESI Application. There is no averment in the whole of the SARFAESI Application that father and grandmother of the Appellant had mortgaged the property with the Bank as mortgagor. This fact is admitted by the Learned Counsel for the Appellant that the father and the grandmother of the Appellant had mortgaged the property with the Bank as mortgagor for a loan taken by the Appellant’s brother, namely Tanmoy Paul. Learned Counsel submits that this fact came to the knowledge of the Appellant on the basis of the opposition which is served upon the Appellant’s Counsel by the Bank. At this stage, it would be relevant to mention here that no opposition is filed by the Bank in this appeal. Hence this fact could not be accepted. Had it been so that any such opposition is served by the Bank upon the Appellant then Appellant should have placed the same on record which is not done.

As far as the impugned order is concerned, Learned DRT had granted time to the Respondent to file opposition to the I.A. 513 of 2022 and also to the main S.A. 131 of 2022 with a liberty to the SARFAESI Applicant to file rejoinder within two weeks thereafter. It appears that when this time was granted, Learned Counsel for the Applicant prayed for an interim relief which was not granted on the ground that no document is in possession of the Appellant regarding the disputed property. Learned DRT had simply rejected the prayer for interim relief. The impugned order did not decide the matter finally keeping the I.A. along with the SARFAESI Application pending.

As far as refusal of interim relief is concerned, Learned DRT has assigned cogent reasons for not granting any interim protection pending I.A. 513 of 2022 or the SARFAESI Application. Even in the appeal, Appellant failed to produce any document to show or prove his right over the property in dispute. Further, Appellant concealed the material facts regarding mortgage of the property of his father and grandmother. In such circumstances, I do not find any ground to interfere with the impugned order. Accordingly, the appeal lacks merit and is liable to be dismissed.

At this stage, it would be pertinent to observe that since the Appellant has not come with clean hands and full facts in the appeal, the appeal deserves to be dismissed with exemplary costs. However, on the request of the Learned Counsel for the Appellant costs are not being imposed.

ORDER

The appeal is dismissed.

Copy of the order be supplied to Appellants and the Respondents and a copy be also forwarded to the concerned DRT.

File be consigned to Record room.

Order dictated, signed, dated and pronounced in open Court. Copy of the Judgment/Final Order be uploaded in the Tribunal’s Website.