Joginder Singh vs Union Bank Of India And Ors.

S.N.H. Zaidi, J

Since the caveator is represented by his Counsel, the caveat is discharged. Heard parties' Counsel on admission. This appeal has been directed against the order dated 16.4.2013 passed by the P.O. of DRT, Jaipur, whereby Appeal No. 1/2010 filed against the order dated 5.1.2010 of the R.O.-1 of DRT, Jaipur in R.C. No. 183/2001 has been dismissed.

Mr. Bhandari submits that the appellant is neither the borrower nor the mortgagor or the guarantor of the loan in question but a tenant of the property bearing House No. 43, measuring 300 sq. yds., Govind Nagar (West), Amer Road, Jaipur, comprising four rooms including a garage, since 1986 on a monthly rent of Rs. 600/- on behalf of Smt. Geeta Devi Khunteta. He further submits that the said Smt. Geeta Devi had mortgaged the property in question with the Bank in respect of a credit facility and when she defaulted in repayment of the loan, the Bank filed an O.A., which was allowed and an R.C. was issued. He also submits that in the R.C. proceedings, the R.O. put the said property to sale, which was purchased by respondent Nos. 2 and 3 in the public auction held on 4.9.2012 for Rs. 14.55 lacs and after the confirmation of sale, certificate of sale dated 29.1.2003 was also issued in their favour. He also submits that the possession of the property was, however, not handed over to the auction purchasers as Smt. Geeta had filed objections against the auction sale and had obtained stay order qua it.

Mr. Bhandari also submits that the objections ( No. 3/2007) filed by the appellant before the R.O. on 3.12.2007 under Rule 40 of the Income Tax (Certificate Proceedings) Rules, 1962, were dismissed on 31.1.2008. It has also been pointed out that the appellant had assailed that order in Writ Petition No. 1182/2008 before the Rajasthan High Court and the Hon'ble Court, vide order dated 7.7.2008, had set aside the order of the R.O. and directed him to dispose it of afresh after framing the necessary issue and taking the evidence of the parties and allowing them to cross-examine the dependents, if necessary.

Mr. Bhandari further submits that the R.O. thereafter conducted the proceedings and after framing the issue relating to the appellant's alleged status as tenant of Smt. Geeta Devi Khunteta and deciding the issue in the negative, dismissed the objections of the appellant by the order dated 5.1.2010.

Mr. Bhandari also submits that the appellant had challenged the said order in appeal under Section 30 of the RDDBFI Act before the Tribunal below, but the same has been dismissed by the impugned order dated 16.4.2013.

The contention of Mr. Bhandari is that the R.O. as well as the lower appellate Tribunal have not properly considered the evidence of the appellant and although the appellant is continued occupation of the property in question as a lawful tenant since 1986, yet ignoring that circumstance, both the Courts below have erred in taking the view that the appellant is not a tenant in the property in question. He also points out that after the dismissal of the appeal, the R.O., vide order dated 29.4.2013, has appointed a Receiver and has directed him to take over the possession of the property after issuing a seven-day notice to the C.D. or anybody found in occupation on her behalf. He submits that until the matter is finally disposed of, the Receiver be restrained from taking the possession over the property in question.

Mr. Sumit Bansal, on the other hand, opposes the contention of Mr. Bhandari and submits that as Smt. Geeta Devi Khunteta had suffered the R.C., the respondent Nos. 2 and 3 had purchased the property in question in the auction sale conducted by the R.O. for a sum of Rs. 14.55 lacs and the sale was also confirmed in their favour in 2003 itself. He further submits that Smt. Geeta Devi did not disclose in objections filed against the auction sale that the said property was under the tenancy of the appellant or anyone else. It is also pointed out by him that the property in question was mortgaged in favour of the Bank through a registered mortgage deed wherein Smt. Geeta Devi had stated that she had not transferred the property to anyone and had undertaken that she would not lease it out to anybody. He also points out that the objections filed by Smt. Geeta Devi were dismissed by the R.O. as well as by the lower appellate Tribunal in appeal and also by the High Court in the Writ Petition on 14.11.2007. He contends that the appellant did not assail the confirmation of sale of the property in favour of the respondent Nos. 2 and 3 in 2003 and had filed the objection four years thereafter in 2007.

Mr. Bansal also contends that the onus of proving the issue framed by the R.O. was upon the appellant and though he had filed affidavits of himself as well as of Smt. Geeta Devi and several other witnesses as evidence, yet none of them had appeared for cross-examination and as such the evidence filed by the appellant has rightly been rejected by the R.O. as well as by the lower appellate Tribunal. It is also pointed out that the appellant has not filed the alleged original lease agreement and has also not examined its marginal witnesses. He also contends that the learned R.O. as well as the lower appellate Tribunal had discussed at length the evidence adduced by the parties qua the issue and it has rightly been held by them that the appellant is not proved to be a lawful tenant of the property in question on behalf of Smt. Geeta Devi.

I have considered the submissions of the parties' Counsel and looking to the facts and circumstances of the case. I am in agreement with Mr. Bansal that the initial burden of proving his alleged tenancy of the property in question was upon the appellant, which he had miserably failed to discharge. In the absence of the original lease deed and the evidence of Smt. Geeta Devi and the witnesses of the lease deed which could be the best evidence to prove the alleged tenancy, the factum of lease of the property in question in favour of the appellant is not proved. The rent receipts have also been found to be not reliable and appear to have been prepared in one day. The order impugned has been passed after the due consideration of all the relevant facts and circumstances and the evidence on record. It does not appear to be suffering with any infirmity or illegality and the appeal filed against the same has no force and is liable to be dismissed at this stage of admission. The appeal is accordingly dismissed.

Copy of this order be furnished to the parties as per law.