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Judgment
R.M. Savant, J.—Leave to amend to delete the Respondent Nos. 2 to 9. The said Respondents are allowed to be deleted at the risk of the Petitioner.
Rule, by consent of parties returnable forthwith and heard.
This Petition has been filed taking exception to the proclamation of sale dated 18.9.2009 issued by the Recovery Officer, Debt Recovery Tribunal-III, at Mumbai for the sale of the Petitioner''s property in connection with the recovery of money under Recovery Certificate No. 383/04 and Recovery Certificate No. 7/05.
The said recovery is in respect of the amount due from the Respondent Nos. 2 and 3. The property in respect of which the proclamation has been issued is property under Chalta Nos. 20 and 21 of PT Sheet No. 132 of the City survey Panaji, and the house bearing No. 657. The Respondent Nos. 2 and 3 are the borrowers from the Respondent No. 1 Bank. Petitioner is the sister of the Respondent No. 4 who is the partner of the Respondent No. 3 Firm. The Petitioner claims an undivided share in the property which is the subject matter of the proclamation, as having inherited from her mother. The Petitioner therefore filed her objection vide letter dated 15.10.2009 ( Exh. P-5 ) before the Recovery Officer pursuant to the notice issued by the Recovery Officer for the sale of the property. The said objection of the Petitioner has admittedly not been considered by the Recovery Officer and without such consideration the Recovery Officer has proceeded to issue the proclamation of sale. On behalf of the Petitioner reliance is placed on the judgment of the Apex Court reported in Mrs. Janki Vashdeo Bhojwani and Another Vs. The Indusind Bank Limited and Others, . Like in the present case in the said case before the Apex Court, the Appellants had claimed a share in the property which was the subject matter of sale. The Apex Court in the said context has observed that unless the said objections by the persons having a share in the property was considered by the Recovery Officer, he could not order the sale of the property. Para 23 of the said report is material and is reproduced herein under .
In our view, it is essential, before any further orders, can be passed to first decide whether or not the Appellants have a share in this property. We therefore remit the matter back to the Debt Recovery Tribunal to record a finding whether or not on the date the decrees were passed, the Appellants were co-owners of the property at 38, Koregaon Park, Pune and if so, to what extent. In processding the Debt Recovery Tribunal will undoubtedly ascertain whether the Appellants had any independent source of income and whether they had contributed for purchase of this property from their own independent income. The Debt Recovery Tribunal will also decide whether this property was the residence of the Appellants at the time possession was taken. The Debt Recovery Tribunal shall permit the parties to lead evidence, both oral and documentary. It must be clarified that the burden of proving that the Appellants have a share in the property will be on the Appellants. The Debt Recovery Tribunal shall then forward its decision to this Court within a period of six months from today.
On behalf of the Respondent No. 1 Bank, the maintainability of the above Petition is questioned by the learned Counsel for the Respondent No. 1 and for the said purpose, reliance is sought to be placed on the judgment of the Apex Court reported in JT 2001 (6) SC 408, wherein the Apex Court has held that since Section 20 of the Debt Recovery Act, provided for an appeal from the decision of the Tribunal, the said procedure could not be deviated from by filing of Writ Petition under Articles 226 and 227 or by civil suit.
The facts in the said case are distinguishable from the facts of the instant case in as much as in the case, admittedly the Recovery Officer has not considered the objections filed by the Petitioner. The judgment in Bhojwani''s case ( supra ) is therefore on all fours supports the case of the Petitioner.
In the light of the judgment in Bhojwani''s case ( supra ) the above Petition is allowed to the extent that the sale pursuant to the proclamation of sale dated 18.9.2009 would stand deferred till the objections taken by the Petitioner are decided by the Debt Recovery Officer, in the light of the judgment of Bhojwani''s case ( supra ), the Debt Recovery Officer considering the mandate of the Recovery of Debts due to the Banks and Financial Institutions Act, 1993, would decide the said objections within a period of eight weeks from the receipt of this order. Notice of the hearing objections to be issued by the Recovery Officer to all the parties. The Petitioner and Respondent bank would endeavour to see that there is an early disposal of the said objections. Rule is accordingly made absolute in aforesaid terms. The parties to bear their respective costs.
The parties to act on a copy of this order duly authenticated by the Court Shirestedar.