Kalpeshkumar Dhirajlal Kothari & Ors vs HDFC Bank Ltd

Ashok Menon, Chairperson

The Appellant is in appeal impugning the judgment/order dated 19.10.2020 dismissing Appeal No. 01 of 2019 on the files of the Debts Recovery Tribunal-II, Mumbai (D.R.T.).

The Appellant is the wife of the third respondent the borrower who had borrowed money from the first respondent Bank of Baroda for the purpose of his business, a proprietorship named M/s Sharda Exports, the second respondent. The fourth respondent is the daughter of the third respondent and is also a guarantor for a loan. The third respondent defaulted the payment of the debt incurred vide sanction letter dated 07.01.2011 by mortgaging his flat No. 104 on the first floor of Tulip Building, Mantri Park, Dindoshi, Film City Road, Goregaon (East), Mumbai -400 065. The bank filed Original Application (O.A.) No. 104 of 2014 before the D.R.T. for recovery of the amount due. None of the defendants appeared to contest. Hence, they were set ex-parte and the O.A. was allowed and a Recovery Certificate issued in favour of the creditor bank. Recovery Proceedings were initiated against the mortgaged flat by the Recovery Officer.

The Appellant who is the wife of the borrower claims that she had got married to the third respondent on 17.12.2011. He was a widower and undertook to care and provide for the Appellant. She was employed but on assurance given by the third respondent, she gave up her job and started living with him in the aforesaid flat. It is contended that they had a happy marriage for a brief period of three months and thereafter fell apart, and the marital relationship ran into rough weather. The Appellant was constantly harassed and she approached the police with multiple complaints registered as NC No. 563/2012 and NC No. 113/2012 respectively on 17.02.2012 and 07.03.2012 at the Dindoshi Police Station. Thereafter a crime was registered as C.R. No. 198/2012 and the same police station on 13.05.2012 against respondents Nos. 3 & 4 for an offence punishable under Sec. 498 A read with Sec. 34 of IPC. In retaliation, respondent Nos. 3 & 4 filed a false complaint against the Appellant and C.R. No. 178/2012 was registered against the Appellant for offences punishable under Sections 341, 452 and 457 of the IPC. On coming to know about the Recovery Proceedings against the subject flat, the Appellant filed an intervention application before the Recovery Officer in the Recovery Proceeding (R.P.) No. 205 of 2015, claiming that the subject flat is her matrimonial home and shared household and that she has the right to continue to occupy the flat. She had applied under Sections 12, 17, 18,19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and the same is pending consideration before the court of the Chief Metropolitan Magistrate, Borivali (CMM). Given the same, the Appellant claims that she is protected from being dispossessed or  evicted from the property. The flat was already taken possession of on 23.02.2018 as a consequence of the orders obtained from the CMM. The Appellant requested for her possession of the flat to be restored and the sale notice be withdrawn. Vide order dated 23.02.2018, the Ld. Recovery Officer declined the claim of the Appellant as an intervener. Aggrieved by the same, the Appellant preferred the aforesaid Appeal No. 1 of 2019 before the D.R.T. and was unsuccessful. Hence, this appeal.

The Appellant contends that Respondents Nos. 2 & 3 had deliberately incurred a loan from the bank and defaulted payment to forcibly evict her from the subject flat which they could not otherwise succeed in doing.

The Appellant has admittedly not got any order from the CMM under the D.V. Act granting her protection to remain in possession of the subject flat. The Appellant had earlier filed Appeal No. 12 of 2018 before the D.R.A.T. and the same was dismissed on 21.09.2018. The subject flat was earlier taken possession of as per the orders of the CMM on 19.01.2013. The Appellant forcibly broke open the lock of the flat and trespassed it. Thereafter, the possession of the flat was again taken on 23.04.2018.

The Ld. Counsel for the Appellant Mr Prashant Pandit has argued with vehemence the right of the Appellant to continue in possession of the flat which is her matrimonial home. He has relied upon a catena of decisions in support of the argument. In Mrs Sarika vs. Mahendra Lex (Bom) 2016 (9) 37, the Bombay High Court upheld the right of a married woman in a shared household irrespective of who is the owner of the house. In another decision, Ishpal  Singh  Kahai  vs.  Ramanjeet Kahai Lex (Bom) 2011 (3) 133, the Bombay High Court has again reiterated the right of a woman to protect her residence against an abusive husband under the provisions of the D.V. Act. There is no dispute that a wife is entitled to an injunction against her abusive husband to continue residing in the shared household. But in the instant case, the Appellant has admittedly not obtained any protection order under the D.V. Act. Mr Pandit has also relied upon the decision of the Hon’ble Supreme Court in B. P. Achala Anand vs. S. Appi Reddy & Ano 2005 (2) G.L.H. 456, to argue that a deserted wife is entitled to be in occupation of her matrimonial home and defend the suit for eviction filed against the husband in his capacity as a tenant. The said decision is, however, under the provisions of the Hindu Adoption and Maintenance Act, 1956 and hence, not applicable to the present case.

The pertinent fact to be considered in this case is that the subject flat was mortgaged to the bank for a loan that was incurred on 07.01.2011. The Appellant got married to the third respondent almost a year thereafter, on 17.12.2011. Hence, the Appellant cannot be heard to state that the mortgage was created with the malafide intent to forcibly evict her from the flat. The D.R.T. is a creation of a statute and can render the remedy only within the four corners of the statute. The order of protection of a harassed wife under the provisions of the D.V. Act is to be passed by the jurisdictional Magistrate, and the D.R.T. has no jurisdiction to grant any relief under the said Act to protect the Appellant. Mr Pandit has relied upon the decision of the Hon’ble Supreme Court in Standard Chartered Bank vs. Dharminder Singh Bhohi Lex(SC) 2013 9 103 where it is held that the Tribunal does not have any inherent powers and it is limpid that Sec. 19(25) of the R.D.B Act confers limited powers. In Associated Cement Companies Ltd. vs. P.N. Sharma, 1965 AIR (SC) 1595 the Hon’ble Supreme Court, pointing out the difference between a Court and a Tribunal held that Courts are established by the State and are entrusted with the State’s inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all Courts are Tribunals. But Tribunals are not Courts.

The Appellant has also filed a written submission elucidating her plight of being homeless. Her story of an abusive husband may attract sympathies, but her remedy against her husband lies elsewhere and cannot be adjudicated by the D.R.T. under the confines of the R.D.B. Act.

The Appeal has no merits, and is, therefore, dismissed.