Mahesh Mihani vs Punjab and Sind Bank and Ors

R. D. Khare, Chairperson

Heard the learned counsels for the parties.

Learned counsel for the appellant submits that the short question, which is involved in the present case, is that the Tribunal below has passed injunction/attachment order dated 16.02.2021 against the property, which was not mortgaged with the respondent-Bank. It is contended that against the outstanding amount of Rs. 72,95,024/=, the estimated value of the property, which was mortgaged with the Bank in respect of the said loan account was for more than Rs. 4.50 crores. It is further contended that section 19(12) of the RDB Act, 1993 was deleted in the year 2016. Thereafter, the Tribunal below did not have power to pass such order restraining the party from transferring, alienating or otherwise dealing with or disposing of the property and assets belonging to him without prior permission of the Tribunal. It is thus contended that without there being anything on record, the injunction order passed against the property, which was not mortgaged with the Bank, is not sustainable in the eye of law, hence the same is liable to be set aside.

Learned counsel for the respondent-Bank submits that for attachment before judgment, an application was moved by the respondent-bank on 26.12.2020 stating that the property, which has been mortgaged, is not sufficient to recover the loan amount, therefore, the other property as detailed may be attached. Copy of the said application has been filed as annexure No. 2 to the memo of appeal. It is not disputed that no valuation report of the property was attached with the said application, although it was moved in the year 2020. Learned counsel for the respondent-Bank has drawn attention of this court to section 19(25) of the RDB Act, 1993 and has stated that the Tribunal below has power to pass such order and the contention as raised by the appellant is not tenable in the eye of law, as the said provision gives power for direction, which may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. He has also referred to section 19(13)(A) of the RDB Act, 1993 and stated that the Tribunal has power to pass such order.

In view of the deletion of section 19(12) of the RDB Act, 1993, this Tribunal is of the opinion that the Tribunal below had no power to pass such injunction order and the said provision was deleted from the Act itself in the year 2016. If the respondent-Bank has any grievance with regard to the valuation of the property, which is mortgaged, it may obtain the valuation of the property mortgaged with the Bank and if it is found that the mortgaged property is not sufficient to recovery the amount due, the respondent-Bank may move an appropriate application before the Tribunal below for attachment before the judgment of the property of the appellant. If the said application is filed by the respondent-Bank, the Tribunal below may consider and decide the same in accordance with law.

In view of the above, the present appeal stands allowed and the order impugned dated 16.02.2021 passed by the Tribunal below is set aside in view of the deletion of the provision of section 19(12) of the RDB Act, 1993.